Mikhman v Royal Victorian Aero Club
[2012] VSC 42
•17 February 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
No. SCI 2011 03524
BETWEEN
| MINA MIKHMAN | Plaintiff |
| and | |
| ROYAL VICTORIAN AERO CLUB (ACN 004 128 232) | First Defendant |
| and | |
| DR JAMES CARSON | Second Defendant |
| and | |
| DR DENNIS HANDRINOS | Third Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 February 2012 | |
DATE OF JUDGMENT: | 17 February 2012 | |
CASE MAY BE CITED AS: | Mikhman v Royal Victorian Aero Club & Ors | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 42 | |
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ADMINISTRATIVE LAW – Judicial review - Question referred to Medical Panel under s 28LWE of Wrongs Act 1958 – Panel giving determination outside the time prescribed by s 28LZG(3)(a) – Whether determination valid – Misstatement by Medical Panel of history provided by plaintiff – Whether irrelevant considerations taken into account – Wrongs Act 1958 s 28LZG.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett | Rudstein Kron Lawyers |
| For the Firstnamed Defendant | Ms G Gray | Corrs Chambers Westgarth |
| For the Second and Thirdnamed Defendants | No appearance | Monahan and Rowell |
HIS HONOUR:
The plaintiff, by originating motion, seeks relief, in the nature of certiorari, in respect of a determination dated 10 May 2011 of a medical panel (“the panel”) made pursuant to s 28LZG(2)(a) of the Wrongs Act 1958 (“the Act”).
On 27 August 2008, the plaintiff, while visiting her daughter’s home, witnessed a mid air collision between two aircraft, which were controlled or operated by the first defendant, the Royal Victorian Aero Club. One of the aircraft involved in the collision apparently crashed into the courtyard of the plaintiff’s daughter’s home. As a result of the collision, and of her observations of it, the plaintiff suffered a psychiatric injury. She was referred by her general practitioner to Dr Wahr, who commenced treating her on 8 October 2008.
In due course, the plaintiff instructed her solicitors to make a claim against the first defendant in respect of her injury. It was therefore necessary for her to comply with Part VBA of the Act, and in particular, to establish, under s 28LE, that she had sustained a “significant injury”. Accordingly, a certificate of assessment was obtained from Dr Wahr, and was served on the first defendant on 7 October 2010. On 4 February 2011, the first defendant, pursuant to s 28LWE of the Act, referred the assessment to the panel, consisting of the second and third defendants.
The plaintiff was examined by the panel on 18 March 2011. On 10 May 2011, the panel signed a certificate of determination pursuant to s 28LZG(2)(a) of the Act, and, on the same day, signed reasons for determination for that assessment. The certificate and assessment were received by the solicitors for the plaintiff on 23 May 2011. In the certificate, the panel stated that it had determined that the degree of psychiatric impairment resulting from the psychiatric injury to the plaintiff, alleged in her claim, did not satisfy the threshold level (prescribed by s 28LB of the Act).
In the originating motion, the plaintiff relied on three grounds upon which it alleged that the panel fell into jurisdictional error. In submissions before me, the plaintiff relied on two of those grounds, namely:
(1)That the panel exceeded its jurisdiction by purporting to issue its certificate after the period allowed by s 28LZG(3)(a) of the Act, namely 30 days from the date upon which the plaintiff had complied with a request, under s 28LZC, to undergo an examination by the panel.
(2)The panel failed to take into account relevant considerations, and/or took into account irrelevant considerations, by erroneously purporting to take into account a history given to it by the plaintiff, which was, in fact, in material respects different to the history, which the plaintiff had recounted to the panel.
First ground: the timing of the panel’s certificate
The first ground, relied upon by the plaintiff, is based on the requirement, in s 28LZG(3)(a), that the panel “must give (its) determination or certificate” within 30 days of the date, upon which the plaintiff had complied with a request under s 28LZC to submit to a medical examination by the panel. As I have set out above, the plaintiff was examined by the panel on 18 March 2011. The panel did not sign the relevant certificate and determination until 10 May 2011, some 53 days after the plaintiff’s examination. Thus, the panel failed to comply with the time limit prescribed by s 28LZG(3)(a).
Before considering the submissions made on the first ground, it is useful to set out, briefly, the structure of the provisions, which constitute the context to s 28LZG(3)(a). Those provisions fall within Part VBA of the Act. The central provision (s 28LE) states that a person is not entitled to recover damages for non-economic loss in a claim for injury, of the type sought to be made by the plaintiff, unless the person has a “significant injury”. The Act defines a psychiatric injury as a “significant injury” if the degree of impairment, resulting from the injury, has been assessed, or determined, in accordance with the Act, as an impairment of more than ten percent. The degree of impairment is to be determined in accordance with the AMA Guides, but as if, for Chapter 14 of those Guides, there was substituted the guidelines entitled “The Guide to the Evaluation of Psychiatric Impairment for Clinicians”.
Part VBA of the Act contains detailed procedural provisions as to how the assessment of impairment is to take place. Section 28LT provides that a claimant must serve on the respondent a copy of a certificate of assessment (if any) obtained by the plaintiff, and on which the plaintiff intends to rely. The respondent, on whom a copy of such a certificate is served, must respond in writing within 60 days of receiving it (s 28LW(1)). If the respondent considers itself to be the proper respondent to the claim, but does not accept the assessment, the response must state that the respondent intends to refer, or has referred, a medical question, in relation to the assessment, to a medical panel (s 28LW(2)). Section 28LWE(1) provides that a respondent, on whom a copy of a certificate of assessment is served, may refer a medical question, in relation to the assessment, to a medical panel for determination.
The provisions, relating to the procedures of a medical panel, are contained in Division 5 of Part VBA. The respondent, on referring a question to a panel, must submit to the panel a notice in writing, setting out the medical question, a copy of the certificate of assessment, and any other prescribed information (s 28LZA). Under s 28LZC, a medical panel may ask a claimant to meet with it and answer questions, to supply copies of documents to it, and to submit to a medical examination by the panel.
Section 28LZG is concerned with the determination of the panel. Subsection (1) provides that the panel must not determine the degree of impairment, unless it has made an assessment of the degree of impairment in accordance with the provisions contained in Division 3 of Part VBA. Subsection (2) provides that, after making the assessment, the panel must give the claimant and the respondent its determination of the medical question. Section 28LZG(3)(a), on which the plaintiff relies, provides that the panel must give its determination within 30 days of the last date, on which the claimant complies with a request under s 28LZC.
Mr J Brett, who appeared on behalf of the plaintiff, submitted that the determination, purported to be made by the panel, was invalid, because it was not given within the time prescribed by s 28LZG(3)(a). Mr Brett submitted that compliance with the 30 day time limit, prescribed by that provision, was a condition of the jurisdiction of the panel to give a binding determination under the Act.
In support of his submissions, Mr Brett pointed, first, to the mandatory terms in which s 28LZG(3)(a) is expressed. He also relied on the statutory scheme, created by Part VBA of the Act, for the determination of the prescribed threshold issue, namely, whether, in a particular case, a claimant had suffered a “significant” injury. In particular, Mr Brett noted that, in Part VBA, each step is required to be taken by a particular party, or the panel, within a short timeframe. The clear intention of the Act is to ensure that the threshold issue, as to whether the claimant had suffered a significant injury, be susceptible to quick and decisive determination. Based on those matters, Mr Brett submitted that the legislature had intended that the 30 day time limit, prescribed by s 28LZG(3)(a), is a condition of the exercise by the panel of its power to give a determination, in relation to a medical question which has been referred to it.
On the other hand, Ms G Gray, who appeared on behalf of the first defendant, submitted that compliance, by a panel with a time limit prescribed by s 28LZG(3)(a), was not intended by the legislature to be a condition of the exercise by a panel of its power to give a determination in respect of a medical question which was referred to it. She submitted that the terms, in which that provision is expressed – that the panel “must” give its determination within the 30 day limit – is not determinative of itself. Rather, she submitted it is a direction to the panel to the effect that it is required to give its determination (or certificate) within the specified period. Secondly, Ms Gray pointed out that the time limit, prescribed by s 28LZG(3)(a), is not accompanied by any provision, which provides for the consequences of a failure by the panel to comply with that limit. Ms Gray contrasted s 28LZG(3)(a) with a number of other provisions, contained in Divisions 4 and 5 of Part VBA, which specifically prescribe the consequences of a failure of a party to comply with a time limit which is prescribed for the performance by it of a particular step, which is antecedent to the deliberations of the medical panel.
Thirdly, Ms Gray submitted that it is important to take into account the context of s 28LZG(3)(a). In particular, the determination of the panel is the last step, in a series of steps, which are prescribed by Division 5 of the Act to enable the resolution of the threshold question as to whether a claimant has sustained a significant injury. Thus, she submitted, the case is to be distinguished from cases in which the particular step, prescribed by statute, is at an early stage of the decision making process. Ms Gray also pointed out that, apart from a short period of delay, a claimant would not suffer any prejudice, if a medical panel failed to comply with the strict provisions of s 28LZG(3)(a). Based on those matters, Ms Gray submitted that s 28LZG(3)(a) should not be construed as providing that the specified time limit was a condition of the jurisdiction of the medical panel to make a determination of a question referred to it.
The principles, which are relevant to the construction of statutory conditions, such as the time limit specified in s 28LGA(3)(a), have been considered by the High Court in Project Blue Sky Inc & Ors v Australian Broadcasting Authority[1], and by the Court of Appeal of New South Wales in Chase Oyster Bar Pty Ltd & Ors v Hamo Industries Pty Ltd & Anor[2].
[1](1998) 194 CLR 355.
[2](2010) 272 ALR 750.
The Project Blue Sky case was concerned with the validity of the Australian Contents Standard determined by the Australian Broadcasting Authority (“ABA”). Clause 9 of the standard required that Australian programs comprise at least 50 percent of all broadcasts. The High Court held that that standard did not comply with s 160(d) of the Broadcasting Services Act 1992, which required the ABA, in determining program standards, to comply with Australia’s obligations under any convention, to which Australia is a party. The High Court held that the condition, contained in clause 9 of the standard, breached s 160(d), because it did not comply with the protocol to the Australian New Zealand Closer Economic Relations Trade Agreement. Nevertheless, the court considered that the failure of the standard to comply with s 160(d) of the Act did not invalidate any exercise of power by the ABA based on clause 9 of the standard.
In reaching that decision, McHugh, Gummow, Kirby and Hayne JJ, in their joint judgment, stated:
“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.”
The joint judgment then proceeded to consider the traditional distinction, in the cases, between acts done in breach of an essential preliminary to the exercise of a statutory power (which were regarded as going to the jurisdiction of the person or body exercising the power) and acts done in breach of a procedural condition for the exercise of a statutory power or authority (which did not necessarily result in the invalidity of the act). Their Honours questioned the utility of such a distinction, and in particular the utility of the distinction between “directory” and “mandatory” statutory requirements. They concluded:
“[93] … A better 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. … In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute’.”[3]
[3]Quoting Tasker v Fullwood [1978] 1 NSWLR 20, 24.
In Project Blue Sky, the factors relied on by the joint judgment, in concluding that a breach of s 160 did not invalidate the acts of the ABA, were –
•Section 160 regulated the exercise of functions already conferred on the ABA, rather than imposing an essential preliminary to the exercise of those functions.
•There would be room for widely differing opinions as to whether or not a particular function had been carried out in accordance with the requirements of s 160.
•Significant public inconvenience would ensue if any acts, carried out by ABA in breach of s 160, were held to be invalid.
The principles, stated by the High Court in Project Blue Sky, were applied by the Court of Appeal in New South Wales in Chase Oyster Bar Pty Ltd & Ors v Hamo Industries Pty Ltd & Anor[4].
[4]Footnote above.
In that case, the appellant, Chase Oyster Bar Pty Ltd, had entered into a construction contract with the first respondent, Hamo Industries Pty Ltd. During construction, Hamo Industries made a progress claim by invoice. Chase Oyster did not respond with a payment schedule, and thus became liable to pay the claimed amount in mid-January 2010. Chase Oyster failed to make that payment. Hamo Industries elected to make an adjudication application under s 17 of the Building and Construction Industry Security of Payment Act 1999 (NSW). However, it failed to make that application within the time prescribed by the Act. In the adjudication proceeding, the adjudicator erroneously determined that the notice by Hamo Industries had been given within the time required. Chase Oyster brought proceedings in the Supreme Court of New South Wales seeking judicial review of the adjudicator’s decision. The proceeding was removed to the Court of Appeal. That court held (inter alia) that the adjudicator did not have jurisdiction to determine the application, because Hamo Industries had not complied with an essential condition for the jurisdiction of the adjudicator, by failing to give notice within the prescribed date.
In reaching that decision, Spigelman CJ[5] (with whom Basten JA agreed) considered that a number of factors led to the conclusion that compliance with the time limit, specified in the Act, was a condition of the jurisdiction of the adjudicator. They included: the requirement was expressed in mandatory language; the time limit was specified in relation to a step which was required to be taken at an early stage of the decision making process; the legislation provided for a precise sequence of time stipulations; and the fact that the time limits are a critical aspect of the purpose of the statutory scheme, namely, to ensure the prompt resolution of disputes about payment.
[5]Above, p 759-761 [40]-[50]; see also p 792-794 [208]-[218], per McDougall J.
In light of those principles, it is necessary to determine whether there can be derived, from the provisions of the Act, a legislative purpose, that would invalidate any determination by a medical panel, which is given outside the 30 day time limit prescribed by s 28LZG(3)(a). As noted in the joint judgment of the High Court in Project Blue Sky, ordinarily such a question is decided by reference to a number of different factors. The weight to be accorded to each factor depends, necessarily, on the statutory context in which the question is being decided.
In the present case, it is significant that the time limit, specified in s 28LZG(3)(a), is expressed in mandatory terms. The use by the legislature of the verb “must” is an important indication of a statutory intention that the time limit is mandatory. It is relevant that the same verb is used, repeatedly, in Divisions 4 and 5 of Part VBA of the Act, in the context of the provisions, which specify the various steps, which must be taken in respect of a determination by a medical panel. In each of those provisions, it is clear that the verb “must” is used in its normal, mandatory, sense.
It is particularly significant that Division 5, which prescribes the procedures of a medical panel, contains a number of provisions which are also expressed in the same mandatory terms. Thus, for example, s 28LZ(5) provides that a medical panel “must” comply with guidelines as to procedures of medical panels issued by the Minister, and with any directions given by the convenor. Section 28LZD(1) 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 28LZD(2) provides that if the claimant is a person under a disability, the panel “must” permit a representative of the claimant to be present. Section 28LZE(2) provides that a request, by a medical panel that the claimant meet with the panel and answer questions and supply documents to the panel, “must” be made within 30 days of the events described in subparagraphs (a) to (d) of subsection (2). It is clear that, if the request was made more than 30 days after such an event, the request would be of no effect.
The provision with which I am concerned is, of course, the third subsection of s 28LZG of the Act. That section is concerned with the determination by a panel of the degree of impairment of a claimant. The two subsections which precede subsection (3) each use the verb “must” to prescribe a procedure to be complied with by a panel. Thus, subsection (1) provides that a panel “must not” determine the degree of impairment, unless it has made an assessment of the degree of impairment in accordance with Division 3. Subsection (2) requires that the panel “must” give its determination or (where relevant) a certificate to the claimant and respondent after making the assessment. In each subsection, the verb “must” is clearly used in its mandatory sense.
Accordingly, it is clear that the verb “must”, which appears in s 28LZG(3)(a), is consistently used, in Divisions 4 and 5 of Part VBA of the Act, in its usual mandatory sense. That consideration, of itself, is a strong reason for according to it the same, consistent, meaning in s 28LZG(3)(a) of the Act.
In addition, it is relevant that Division 4 and Division 5 of Part VBA prescribe a series of time limits, within which each particular step, in the statutory scheme, is to be carried out. The evident intention of the statute is to provide for a speedy resolution of the threshold question as to whether a claimant, in a particular case, has sustained a “significant injury”. Such a step is necessarily anterior to the right of the claimant to issue proceedings in court claiming non-pecuniary damages. The obvious purpose of the statute is to ensure that that preliminary step not be protracted, so that each party is entitled to a prompt and efficient determination of it.
Further, a number of the provisions, which specify the time within which a particular step is to be taken, expressly provide for the consequences of the failure of a party to comply with that time limit. Thus, s 28LO(4) of the Act provides that if a respondent fails to respond, within 60 days, to a request by a claimant to waive the requirement for an assessment of the degree of impairment, that requirement cannot be waived by the respondent. Similarly s 28LP(3) is to like effect where a claimant, who seeks waiver, has provided further information to a respondent, and the respondent does not then respond within 60 days of receipt of that information. Section 28LW(4) provides that if a respondent fails to respond in writing within 60 days after receiving a certificate of assessment from a claimant, the respondent is deemed to have accepted the assessment. Section 28LWB(4) contains a similar provision, where a respondent fails to properly respond, where a question is raised between the parties as to whether the respondent is a proper respondent to the claim.
Each of the foregoing provisions indicate a statutory intention that the time limits, prescribed for each of the steps to be taken leading to the assessment of impairment by a medical panel, must be strictly complied with. They are part of a statutory scheme, in which the timetable is intended to be rigorously adhered to, so as to facilitate the expeditious determination of the assessment of impairment of a claimant.
In this context, Ms Gray submitted that it is significant that, unlike the provisions to which I have just referred, s 28LZG(3)(a) does not contain any provision which provides for the consequences of a failure of the medical panel to give its determination within the prescribed 30 day time period. Ms Gray submitted that, by not providing for such a consequence, the Parliament evinced an intention that compliance with the prescribed time period is not a condition of the jurisdiction of the panel.
While that argument has some attraction, in my view the response made by Mr Brett to it is correct. The “default” provisions, to which I have referred, are prescribed in the context of an adversarial procedure, in which the respondent has the onus of responding to the assessment served by the claimant under s 28LT(1). The “default” provisions are necessary, in order to ensure that the timetable, set by the legislation, is not frustrated by the failure of a particular party to comply with it. If there were no such default provisions, the process, of determining the assessment of a claimant’s impairment, could be significantly impaired, or even brought to a halt, through the delay or inaction by a respondent in carrying out a step required of it by the provisions in Division 4 of Part VBA. For example, in the absence of s 28LW(4), the requirement that a respondent respond to a certificate of assessment, served by a claimant, within 60 days, would be ineffectual. The fact that a failure, by a respondent, to comply with that time limit, might render any later response by the respondent invalid, would not resolve the issue. In such a case, it is necessary that the legislation provide a “default” provision, to ensure that, if the specified time limits are not complied with, the determination of a claimant’s impairment be able to progress.
On the other hand, the determination of a claimant’s impairment, by a panel, is, necessarily, the last step in resolving the question as to whether the degree of impairment, resulting from the claimant’s injury, satisfies the threshold test prescribed by the Act. That being so, there would be no need for a “deeming” or consequential provision, of the type which is prescribed for defaults by the parties in complying with the time limits specified in Division 4. Thus, the absence of such a provision, prescribing the consequences of a panel’s failure to comply with the 30 day time limit contained in s 28LZG(3)(a), is not significant.
The Act does make some provision for the consequences of defects and departures from certain (but not all) types of non-compliance by a panel with the Act. Specifically, s 28LZK provides that any act or decision of a panel is not invalid “by reason only” of any defect or irregularity in connection with the appointment of a member of the panel. The fact that that section does not preserve the validity of a decision, if a panel fails to comply with other mandatory provisions applying to its decision – including s 28LZG(3)(a) – is a further factor which adds weight to the construction contended for on behalf of the plaintiff.
In this context, Ms Gray also relied on the fact that the determination by a panel, of a medical question referred to it, is the last step in the process of determining the impairment of a claimant. Thus, she submitted, it is unlikely that Parliament would have intended that, at such a stage, a failure by a panel to comply with the prescribed time limit for giving its determination would, of itself, invalidate that determination. Ms Gray submitted that such a result would frustrate the intention of Parliament to provide a procedure enabling the prompt finalisation of the determination of the question of a claimant’s impairment.
The point, relied on by Ms Gray, is relevant.[6] However, a conclusion that a panel’s determination is invalid, because of a failure by a panel to comply with the time prescribed by s 28LZG(3)(a), would not invalidate all the processes which led to the determination. In particular, such a conclusion would not affect the validity of the steps taken by the parties leading to the referral of the relevant medical question to a panel. Nor would it affect the validity of the referral, by a respondent, of such a medical question to a panel under s 28LWE of the Act. Thus, a conclusion that the determination of a panel is invalid, by reason of the failure of a panel to comply with the prescribed time limit, would not, in my view, significantly frustrate the evident intention of Parliament, namely, to bring about the expeditious determination of the question of the impairment of a claimant for the purposes of Part VBA of the Act.
[6]Chase Oyster Bar Pty Ltd & Ors v Hamo Industries Pty Ltd & Anor (above), 760 [43] (Spigelman CJ).
One of the matters, considered by the High Court in Project Blue Sky, is whether the invalidation of the decision, made after the prescribed time, would cause public inconvenience, such that the legislature could not have intended that strict compliance with the provision was a condition for the exercise of the jurisdiction of the relevant body or authority. In this case, no such public inconvenience has been indicated. Indeed, the parties, and I, have been unable to find any other case, which has come before this Court, in which a medical panel, whether under the Accident Compensation Act or under the Wrongs Act, has failed to deliver its determination within the prescribed time period. The 30 day time period, which is specified by s 28LZG(3)(a), is not unduly onerous. A determination by a panel is based essentially on a consideration, by the panel, of the materials before it, and, importantly, on its own expert view as to the degree of impairment of the claimant, usually upon examination of the claimant by the panel. Those are not matters which, save in the most unusual case, would require lengthy deliberation by the panel.
On the other hand, if compliance with the time period prescribed by s 28LZG(3)(a) is not a condition for the exercise by the panel of its power to make a determination, the purpose of the legislation could be frustrated. It was the clear intention of Parliament that the time limits, specified in Divisions 4 and 5 of Part VBA, be rigorously adhered to, so that there be some certainty as to the time, within which the degree of impairment of a claimant might be assessed and determined. It is understandable that, in such a context, Parliament would have intended that the time limit, prescribed by s 28LZG(3)(a), would be a condition of the exercise by a panel of its power, rather than be directory to it. Otherwise, the statutory purpose, to ensure the expeditious determination of impairment, could be undermined, if panels could, lawfully, exceed the 30 day time limit at their discretion. Thus, if s 28LZG(3)(a) were construed in the manner contended for on behalf of the defendant, it could create consequences which would frustrate the intention of the legislature. On the other hand, if it were construed in the manner contended for on behalf of the plaintiff, it would not produce any public inconvenience, or consequences not intended by Parliament. On the contrary, such a construction would enhance the manifest purpose of Parliament, namely, that the time periods, prescribed in Division 4 and Division 5 of Part VBA of the Act, be strictly complied with, to ensure a speedy resolution of the threshold issue of the degree of impairment of a claimant.
For those reasons, I have concluded that the time limit, prescribed by s 28LZG(3)(a) of the Act, is a condition of the jurisdiction of the panel to give a determination. As the panel, in this case, failed to give its determination within the 30 day limit, the determination given by it was beyond the power of the panel, and, as such, should be set aside.
Second ground: taking into account irrelevant considerations; failing to take into account relevant considerations
In view of the conclusion that I have reached in respect of the first ground, relied on by the plaintiff, it is not necessary for me to determine the second ground, on which she relied. However, in deference to the submissions advanced in respect of the second ground, I shall express my views in relation to it.
In the reasons, which the panel gave for its determination of the plaintiff’s impairment, the panel set out, in some detail, matters of history, which it took from the plaintiff when it examined her on 18 March 2011. That history included what the plaintiff had told the panel as to matters relevant to her current psychological state. In paragraph 5 of her affidavit, the plaintiff has set out three particular parts of the history, recited by the medical panel, which she says incorrectly recorded what she told it. It was submitted, on behalf of the plaintiff, that the panel thereby took into account irrelevant considerations, or, alternatively, failed to take into account relevant matters, namely, her correct history.
It is only necessary to set out, in short compass, the relevant aspects of the panel’s reasons. The panel had been provided, by the plaintiff, with a lengthy report by Dr Wahr, which detailed a number of his attendances on her during the time in which he treated her. The report of Dr Wahr contained details of the symptoms of psychological illness, which were described by the plaintiff to Dr Wahr. He concluded that the plaintiff has suffered from a post traumatic stress disorder, which constituted an impairment of 40 percent. He considered that the disorder has become chronic and firmly established, despite his treatment of her.
In its reasons, the panel also set out, in detail, matters relating to the plaintiff’s history and background. It contained a description, given to the panel, of the incident of 27 August 2008, which she witnessed while she was at her daughter’s home. At pages 4 to 5 of its reasons, the panel set out what, it says, the claimant told the panel as to her current psychological state. At page 5, the panel then described its “mental state” examination of the plaintiff. On the final page (page 6), the panel noted that the plaintiff had not described to it the flashbacks, nightmares or panic attacks, which had been noted by Dr Wahr on many occasions. The panel concluded that the plaintiff was suffering from a mild chronic post traumatic stress disorder in partial remission. It concluded that the degree of psychiatric impairment, resulting from that injury, is no more than 10 percent, and is permanent.
In her affidavit, the plaintiff has taken issue with three aspects of the history taken by the panel, which are set out at pages 4 to 5 of the reasons. They are as follows:
(a)At page 5, the reasons state: “The claimant said that she usually retires at 10 or 11 pm and reads until 4 am and rises at 8, 9 or 10 am”. In her affidavit, the plaintiff states that she told the panel that she tries to read when she cannot sleep, but that she cannot concentrate, and that she is often awake until 4 am.
(b)At page 4, the reasons state: “She (the plaintiff) said that soon after the incident she was unable to tolerate crowds in shopping centres, but that this problem has since diminished”. In her affidavit, the plaintiff states that, in fact, she told the panel that she continued to have that problem, and that it had only slightly improved through extreme effort on her part.
(c)At page 4, the reasons also state: “She said that she enjoys watching movies on television and listening to music”. In her affidavit, the plaintiff states that she told the panel that she no longer enjoyed those activities, as the noise and change of colours irritated her.
It was submitted on behalf of the plaintiff that, in the three respects, in which the panel erred in recording the history related to it by the plaintiff, the panel had taken into account irrelevant matters (matters which were not the history given to it by the plaintiff), and, in addition, the panel thereby failed to take into account relevant matters (the correct history actually related to it by the plaintiff). Accordingly, it was submitted that, in that way, the determination of the panel was affected by jurisdictional error.[7]
[7]Craig v The State of South Australia (1994) 184 CLR 163, 179.
In response, Ms Gray submitted that, on a proper analysis, the first two matters, complained of by the plaintiff, did not constitute errors by the panel in recording the history related to it by the plaintiff. Further, she submitted that, in any event, any difference between the account, given by the plaintiff to the panel, and the record by the panel of that account, was immaterial to the determination made by the panel.
In support of his submissions on behalf of the plaintiff, Mr Brett referred to decisions by members of the Trial Division of this Court, in which it was decided that errors by a particular panel, in the recording of the history related to it by a claimant, were such that the panel had, in each case, reached its determination based on irrelevant considerations, and, in addition, had failed to take into account relevant considerations. Those cases include Tralongo v Malios & Ors[8], Cladingboel v New Crest Mining Limited & Ors[9], Smith v Commonwealth of Australia & Anor[10] and Jasky v Cooney & Ors[11]. Ms Gray did not contend that I should not follow those decisions. Rather she submitted that, in each case, the errors made by the respective panels, in recording the history related to them, were significantly different from the errors alleged in this case. In particular, she submitted that the errors made by the panels, in the cases to which Mr Brett referred, were errors as to significant matters which were demonstrably relevant to the determination of the panel.
[8][2007] VSC 239.
[9][2007] VSC 345.
[10][2009] VSC 419.
[11][2009] VSC 51.
In my view, the submissions made by Ms Gray, as to the effect of the authorities to which I was referred, are correct, both as a matter of principle, and also as reflecting the effect of the decisions. The basis, upon which the plaintiff seeks to impugn the determination of the panel, is that the panel relied on, or took into account, irrelevant matters, or that it failed to take into account relevant matters, which it was required to consider, in such a way that the panel, thereby, exceeded its statutory jurisdiction. 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.[12]
[12]Randall v The Council of the Town of Northcote (1910) 11 CLR 100, 113 (O’Connor J); Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40 (Mason J); Hanks v Minister of Housing and Local Government[1963] 1 QB 999, 1020 (Megaw J); R v Rochdale Metropolitan Borough Council [1982] 3 All ER 761, 769-770 (Forbes J).
It is not necessary for me to analyse, in detail, the three cases, to which I was referred. However, it is evident, in each of the decisions, to which I have been referred, that the misstatement by the panel of the history provided by the worker constituted a quite significant discrepancy between the history, given by the claimant, and the recording of that history by the panel. Further, it is clear that, in each of the cases, the erroneous matter of history, referred to by the panel, played a role in its decision.
In Tralongo v Malios & Ors, the medical panel concluded that, based on the plaintiff’s history, and the progress of his symptoms, the plaintiff’s employment was not, and could not have been, a significant contributing factor to his multi-level lumbar disc degeneration. That conclusion was based on a number of errors by the panel in recording the incident, in which the plaintiff claimed to have been injured, the immediate aftermath of that incident, and the history which the plaintiff gave to the panel about his ongoing symptoms. Similarly, in Cladingboel v New Crest Mining Ltd & Ors, the panel erroneously recorded that the claimant had not told it that he suffered from bladder dysfunction. In its reasons, the panel made it clear that the question, of whether there was any such dysfunction, was relevant to its ultimate determination. In Jasky v Cooney & Ors, the panel wrongly recorded that the plaintiff was working, before her accident, on a part time basis, whereas she was, in fact, working on a full time basis. That error was of substantial significance in impugning the determination of the panel that, in its opinion, the plaintiff had remained capable of performing her pre-injury duties.
Thus, in each of the cases, to which I have just referred, the error made by the panel was a substantial error, which was relevant to the determination ultimately made by it.
With those principles in mind, I turn, then, to the three aspects in which the plaintiff contends that the panel erroneously recorded the history which she gave to it.
The first matter, relied on by the plaintiff, relates to what she told the panel about her sleep, and about her reading. Taken out of context, the one sentence, referred to in the plaintiff’s affidavit, does not entirely record what the plaintiff told the panel. However, immediately preceding that passage in its reasons, the panel had recorded that the plaintiff had said that she had “not slept for two years”, and that she sleeps on average three to four hours per night. In the paragraph which follows the passage, relied on by the plaintiff, the panel records that the plaintiff told it that her concentration is poor, and that she is unable to read, as she has to read, and re-read, paragraphs repeatedly. In that context, in my view, the first matter, complained of by the plaintiff, does not constitute an error, by the panel, in recording the history stated by the plaintiff to it.
The second matter relied on by the plaintiff, as an error by the panel, relates to the plaintiff’s statement as to whether she continues to shop in shopping centres. It is difficult to understand the nature of the plaintiff’s complaint about the passage of the panel’s reasons, to which she refers. Immediately before it, the panel records the plaintiff as stating that she does the shopping accompanied by her husband or son. The plaintiff does not complain of that passage, in the reasons, as an erroneous recording of the history. At most, the error alleged to have been made by the panel is one of degree, in recording the extent to which the difficulty, which she had experienced in tolerating crowds in shopping centres, had improved. Any discrepancy, thus revealed, between the history given by the plaintiff to the panel, and the panel’s recording of it, would not be sufficient to be material for the purposes of the principles to which I have earlier referred.
The third matter, relied on by the plaintiff, is that the panel erroneously recorded that she enjoyed watching movies on television and listening to music. The plaintiff states that, in fact, she had said to the panel that she no longer enjoyed those activities, as the noise and change of colours irritated her. On its face, the panel has, thereby, erred in recording one part of the history related to it by the plaintiff. However, that error must be considered in the context of the reasons provided by the panel. It constitutes one error in the plaintiff’s history, recorded by the panel. After reciting that history, the panel recorded its findings on mental state examination, and in particular, that her affect showed some mild anxiety, her mood showed some mild depressive themes, which were not prominent or sustained, and that her concentration and memory were intact. The panel also noted that the plaintiff did not refer to any daytime flashbacks or re-experiencing of the phenomena or panic attacks. In that context, the single error, by the panel, to which I have referred, is not demonstrated to have played any relevant role in the reasoning by the panel that the plaintiff’s post traumatic stress disorder is mild, and is in partial remission. The error is of an entirely different kind to that which was established in the three cases to which I have earlier referred, namely, Tralongo, Cladingboel and Jasky.
For those reasons, I am not satisfied that the plaintiff has made out the second ground upon which she relies, namely, that the panel took into account irrelevant matters, and failed to take into account relevant factors, in reaching its decision.
Conclusion
For the reasons, which I have set out above, I have reached the following two conclusions:
(1)That the panel exceeded its jurisdiction by purporting to issue its determination after the period of 30 days specified by s 28LZG(3)(a) of the Act.
(2)In reaching its decision, the panel did not fail to take into account relevant considerations, and did not take into account irrelevant considerations.
As a result of the first conclusion, which I have just stated, it follows that the plaintiff should be granted relief, in the nature of certiorari, quashing the decision of the medical panel made on 10 May 2011. The effect of that order will be that, although the medical question has been properly referred for determination by a medical panel, no determination has been made by such a panel in accordance with the Act. Therefore, it is appropriate that I also direct that the Convenor of medical panels constitute another panel to determine that question, pursuant to s 63(4) of the Accident Compensation Act 1985 (which applies pursuant to s 28LZL(2) of the Wrongs Act).
Relief
Accordingly, and subject to hearing the parties, I propose to make the following orders:
(1)Order that the decision of the medical panel made on 10 May 2011 be quashed.
(2)Direct that the medical question be referred back to the Convenor of the medical panel for determination by a differently constituted medical panel.
I will hear the parties on the question of costs.
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