Mitchell v Malios
[2013] VSC 480
•6 September 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW & APPEALS LIST
S CI 2013 00840
| DAVID MITCHELL | Plaintiff |
| v | |
| DR JOHN MALIOS DR PETER GIBBONS MAXWELL BUGG | Firstnamed Defendant Secondnamed Defendant Thirdnamed Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September 2013 | |
DATE OF JUDGMENT: | 6 September 2013 | |
CASE MAY BE CITED AS: | Mitchell v Malios & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 480 | |
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ADMINISTRATIVE LAW – Judicial review – Jurisdictional error – Convenor of Medical Panels – Whether Convenor of Medical Panels fell into jurisdictional error – Significant injury – Threshold levels – Injury other than psychiatric injury – Psychiatric injury – Wrongs Act 1958, Part VBA.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S.A. O’Meara SC with Dr T.J.F. McEvoy | Avant Law Pty Ltd |
| For the First and Second Defendants | Mr D. Masel SC | Moray & Agnew |
| For the Third Defendant | Mr R.P. Gorton QC with Mr G.B. Wicks | Maurice Blackburn |
HIS HONOUR:
Introduction
The Wrongs Act1958 (“the Act”) precludes the recovery of damages for non-economic loss[1] in a wide range of common law personal injury cases, except where the person injured has suffered “significant injury” as defined in Part VBA of the Act.[2] Part VBA comprises ss 28LB to 28LZQ of the Act.
[1]Defined in s 28LB to mean:
[2]See ss 28LE and 28LF of the Act.
The term “significant injury” is defined in s 28LF of the Act. The term is defined by reference to whether the injury is an injury other than a psychiatric injury (often referred to as a physical injury), or whether the injury is a psychiatric injury. Section 28LF of the Act relevantly provides:
(1) For the purposes of this Part injury to a person (other than a psychiatric injury) is significant injury if-
(a)the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or
(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; or
(b)a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level; or
(c)the injury is loss of a foetus; or
(ca)the injury is psychological or psychiatric injury arising from the loss of a child due to an injury to the mother or the foetus or the child before, during or immediately after the birth; or
(d)the injury is loss of a breast.
(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; or
(b)a Medical Panel has determined under Division 5 that the degree of impairment resulting from the injury satisfies the threshold level.
The expression “threshold level” is defined in s 28LB to mean:
(a)in the case of injury (other than psychiatric injury), impairment of more than 5%;
(b)in the case of psychiatric injury, impairment of more than 10%.
The central issue in the present proceeding concerns whether the Convenor of Medical Panels is required (or indeed permitted) to convene a medical panel to assess impairment from an alleged psychiatric injury, where a claimant has only provided a certificate of assessment of impairment regarding physical injury. The plaintiff submits that this is a question of general public importance which has arisen repeatedly since this Court’s decision in McAlister v Leitch & Ors.[3] Before proceeding further, it is necessary to set out some of the background to this proceeding.
[3][2011] VSC 51 (Cavanough J).
Background
The plaintiff, an orthopaedic surgeon, is a defendant in a County Court proceeding in which the third defendant claims damages for personal injuries alleged to have been caused by the negligence of the plaintiff. In the County Court proceeding the third defendant alleges that he suffered injury as a result of a negligent delay in the diagnosis and treatment of a right knee injury. The third defendant particularises the injuries he sustained as a result of the alleged negligence of the plaintiff as follows:
Delayed diagnosis of intra articular displaced fracture of the lateral tibial plateau, union of the fracture inferiorly at the level of the meta-diaphysis and incorporation of the cross lateral meniscus in the healed fracture;
Chronic irregularity of the lateral tibial plateau due to clinically depressed lateral tibial plateau fracture;
Untreated mal-united right knee lateral tibial plateau fracture;
Requirement for extensive operative treatment with inability to reduce the posterior lateral fragment and disorganisation of the lateral tibial plateau;
Exacerbation and acceleration of osteoarthritis of the right knee joint;
Requirement for total knee replacement in future;
Atrophy of right thigh;
Scarring with reduced sensation;
Patella femoral crepitus and restricted movement of knee;
Antalgic gait;
Incomplete reduction of fracture of lateral and posterior components of the lateral tibia plateau;
Psychological reaction;
Pain and suffering.
On 22 October 2012, the solicitors for the third defendant sent a letter to the solicitors for the plaintiff enclosing a copy of a report from an orthopaedic surgeon, Dr Rodney Simm, together with a certificate of assessment pursuant to s 28LT of the Act. The letter contained the particulars prescribed by s 28LT(2) and regulation 6 of the Wrongs (Part VBA Claims) Regulations2005. Pursuant to regulation 6(l), details of the third defendant’s injury were provided as “including, but not limited to [the injury particularised by the third defendant in the County Court proceeding]”. The certificate of assessment contained the certification by Mr Simm that “the degree of impairment resulting from [the third defendant’s] injury is more than 5%”. The certificate then contained a brief description of the third defendant’s knee injury, before leaving blank that part of the certificate that dealt with psychiatric injury.
The first and second defendants are sued as the Convenor of Medical Panels and Deputy Convenor of Medical Panels respectively.[4] On 6 December 2012, the solicitors for the plaintiff wrote to the first defendant, referring the following medical question to a medical panel for determination pursuant to s 28LWE:
Does the degree of impairment resulting from the injury to the claimant alleged in the claim satisfy the threshold level?
[4]Cf s 63 of the Accident Compensation Act1985.
The letter went on:
Please note that this referral relates to the medical question insofar as it related to the physical impairment only. We do not require an assessment of the claimant’s psychiatric impairment.
The form of the medical question in the plaintiff’s solicitor’s letter followed closely the definition of medical question in s 28LB of the Act:
Medical question in relation to a claim for damages, means a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level.
On 11 December 2012, the first defendant sent a letter to the solicitors for the plaintiff (copied to the solicitors for the third defendant) in the following terms:
I am advised that in accordance with the judgment in McAlister v Leitch & Ors [2011] VSC 51, I am required to convene a Medical Panel constituted by appropriate members to answer the medical question and make a determination concerning, as applicable, both the physical and psychiatric injuries alleged in the claim.
I am also advised that as a matter of law I am only able to convene a Panel to consider a medical question in the following terms:
‘Does the degree of impairment resulting from the injury to the claimant alleged in the claim satisfy the threshold level?’
I am further advised that, in accordance with Melbourne Health & Ors v Dr John Lloyd & Ors [2009] VSC 370, the parties have a clear obligation to identify all injuries, as being ‘potentially compensable injuries’. All injuries alleged in the claim, are injuries for the purposes of a Medical Panel assessing, where possible, any impairment in accordance with the AMA Guides and/or GEPIC and, therefore, are the injuries to the claimant alleged in the claim to which the medical question applies.
I have decided that unless I receive written notification from both the respondent/s and claimant advising to the contrary, by or before 18/12/2012, I will proceed to convene a Medical Panel constituted by appropriate members to answer the medical question concerning, as applicable, both the physical and psychiatric injuries alleged in the claim.
In reaching this decision, I have had regard to the following:
1.Section 28LWE(1) of the Act is the provision by which a respondent “may refer a medical question” in relation to a certificate of assessment to a Medical Panel for determination.
2.“medical question” is defined in Section 28LB of the Act as “… a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level.”
3.“injury” is defined in Section 28LB of the Act to mean:
“personal or bodily injury and includes –
(a)… ; and
(b)Psychological or psychiatric injury; and
(c).. … ; and
(d)aggravation, acceleration or recurrence of an injury or disease.”
4.It is significant that the definition of “medical question” refers to “injury” (hence any personal or bodily injury and including psychological or psychiatric injury or an aggravation, acceleration or recurrence thereof) “alleged in the claim”, and not the injury to which the certificate of assessment, the receipt of which is the trigger to the referral, itself refers.
Giving the words their ordinary meaning as defined, this negates the assertion that the words “a medical question in relation to the assessment” appearing in Section 28LWE(1) of the Act are to be read as a question limited to the injuries, the subject of the triggering certificate of assessment. The definition of “medical question” precludes that construction.
On the same day, the first defendant wrote an identical letter to the solicitors for the third defendant (copied to the solicitors for the plaintiff).
Again on the same day (and probably after the first defendant sent his letters of 11 December 2012), the solicitors for the third defendant wrote to the first defendant detailing the third defendant’s claim against the plaintiff, repeating the particulars of injury (including “psychological reaction” and “pain and suffering”), and set out the third defendant’s alleged “current incapacities”. The current incapacities described in this letter were all of a physical nature relating to the third defendant’s right knee. No reference was made to what, if any, incapacities were then being suffered by the third defendant as a result of any alleged psychological reaction.
On 18 December 2012, the solicitors for the plaintiff again wrote to the first defendant. In this letter, the solicitors for the plaintiff submitted that the first defendant’s position with respect to psychiatric injury was wrong. The letter provided:
While we accept that a panel must make a holistic assessment of the impairment arising from the claimed injury, we contend that the panel must nevertheless confine itself to assessing impairment that flows from the type of injury identified in the certificate of assessment; that is, either physical or psychiatric. Failure to do so constitutes a jurisdictional error on the part of the panel.
The panel, in this context, can only assess questions referred to it by the respondent. The respondent can only refer matters for assessment once it is in receipt of a certificate of assessment certifying the degree of the claimant’s impairment resulting from ‘injury’ or ‘psychiatric injury’, or both. In this case, only a certificate assessing the impairment resulting from an ‘injury’ has been received by the respondent. The respondent is therefore unable to refer a question to the panel in respect of any psychiatric injury, and we have expressly refrained from doing so in our letter of 6 December 2012 … .
On 20 December 2012, the first defendant wrote to the solicitors for the third defendant and the plaintiff advising that he now intended to convene a medical panel to determine the following medical question:
Does the degree of impairment resulting from the injury to the claimant alleged in the claim satisfy the threshold level?
The letter went on to provide that the “injury to the claimant alleged in the claim” to which the referral related was set out in the statement of claim, particularised in the way I have already described. The letter went on:
Pursuant to section 63(4)(b) of the AccidentCompensation Act 1985 I will determine the composition of the medical panel appropriate for the ‘injury to the claimant alleged in the claim’.
In so doing I am adopting the reasoning set out in my previous letter dated 11 December 2012 which I do not propose to repeat in this letter.
On 22 January 2013, the second defendant (as Deputy Convenor of Medical Panels) advised the solicitors for the plaintiff that the medical panel convened comprised Dr Matthew Tagkalidis (a psychiatrist), Professor Peter Disler (a rehabilitation and general physician) and Mr Andrew Hardidge (an orthopaedic surgeon).
The letter of 22 January 2013 was received by the solicitors for the plaintiff on 24 January 2013. On 24 January 2013, the solicitors for the plaintiff wrote to the first defendant in the following terms:
We note you have decided to convene a panel to assess the plaintiff’s psychological impairment, contrary to our submissions.
Your decision to convene a panel to assess the plaintiff’s psychological impairment is a decision subject to judicial review. Our client is considering his right in relation to review of that decision, and will shortly be in a position to instruct us regarding same.
In the circumstances, we consider it inappropriate for the psychological assessment to proceed tomorrow, before our client has had sufficient opportunity to consider his options in following your decision. As a matter of natural justice and procedural fairness, our client must be given an opportunity to consider an appeal before the assessment takes place. Accordingly we submit that you ought to postpone the assessment so as to provide our client with sufficient time to consider his option.
We otherwise reiterate our position that if an assessment of the psychological impairment goes ahead, we will not be liable for payment of the resultant fees. Likewise, we are not liable for any late cancellation costs that should arise if you decide, as we submit you should, to postpone the psychological assessment.[5]
[5]The reference to a liability for payment was no doubt made having regard to the provisions of s 28LX of the Act. Section 28LX makes a respondent, who refers a medical question in relation to an assessment to a medical panel, liable for the fees and costs payable in respect of the referral.
On 24 January 2013, the third defendant was examined separately by Dr Tagkalidis, and jointly by Professor Disler and Mr Hardidge.
On 27 February 2013, the solicitors for the plaintiff received (under cover of a letter dated 25 February 2013) the panel’s answer to the medical question referred to it, and the panel’s reasons. The panel’s answer to the medical question was provided in a certificate of determination pursuant to s 28LZG(2)(a) of the Act, and dated 19 February 2013. The panel’s answer to the medical question was:
The panel determined that the degree of whole person impairment resulting from the physical injury alleged in the claim does satisfy the threshold level.
The panel also determined that the degree of psychiatric impairment resulting from the psychiatric injury alleged in the claim does not satisfy the threshold level.[6]
[6]Indeed, in the panel’s reasons, the panel stated that it concluded that the claimant was currently suffering from no psychiatric or abnormal psychological condition.
The plaintiff’s case
The plaintiff contends that the first defendant has committed jurisdictional error by making a determination to convene a medical panel to consider and determine a medical question in the terms and on the basis communicated by the letters dated 20 December 2012 and/or 22 January 2013 addressed to the plaintiff’s solicitors. It is submitted by the plaintiff that, in making this determination, the Convenor made errors of law which have caused him to exceed the power given to him by the Act.
The plaintiff submits that the first defendant was empowered under Part VBA of the Act to convene a medical panel only to conduct a determination in respect of the physical injury referred to in the certificate of assessment served by the third defendant on the plaintiff pursuant to s 28LT. Specifically, the plaintiff contends that the first defendant was only empowered to convene a medical panel to which a medical question in relation to the certificate of assessment fell to be determined.
In support of his submissions that a medical panel should not have been convened to determine impairment from any psychiatric injury, the plaintiff noted the existence of s 28LJ of the Act. Section 28LJ provides:
In assessing a degree of impairment of a person under this Part, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.
The plaintiff argues that, construed in their context, the provisions of Part VBA of the Act only permitted the first defendant to convene a medical panel to determine the dispute between the first and third defendants in relation to the certificate of assessment served by the third defendant on the plaintiff pursuant to s 28LT. The existence of s 28LJ exemplifies that there are (or may be) injuries which do not give rise to a relevant impairment requiring any assessment. These include the secondary psychiatric injuries referred to in s 28LJ, injuries from which there might have been a full recovery and unrelated injuries.[7]
[7]As to unrelated injuries, see s 28LL(3).
The first and second defendants’ position
At trial, the first and second defendants took a position consistent with the observations of the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[8] Accordingly, the first and second defendants said that:
(a)they did not advance submissions or wish to be heard on the substantive issues raised in the proceeding, wishing rather to submit to such order the Court may make, save as to costs; and
(b)they appeared on the hearing only to assist the Court concerning such matters as the powers, practices and procedures of a medical panel convened under Part VBA of the Act in determining a medical question referred to it under that Part.[9]
[8](1980) 144 CLR 13.
[9]In their original written submissions, the first and second defendants took a slightly contradictory approach, saying they took a Hardiman approach, but wished to be heard in respect of the jurisdiction to review the decisions of the first and second defendants to convene a medical panel. However, the first and second defendants’ submissions as to the Court’s jurisdiction to review their decision were abandoned in the revised written submissions of the first and second defendants dated 4 September 2013.
The third defendant’s submissions
The third defendant’s first contention is that this proceeding is an abuse of process. The third defendant contends that the proceeding is an abuse of process because “it seeks to manage the constitution of medical panels and to complain about costs which is, in the circumstances, an illegitimate purpose and is oppressive to the third defendant”.[10] In support of this submission, the third defendant relies upon Clyne v New South Wales Bar Association,[11] Barton v The Queen,[12] Walton v Gardiner[13] and Williams v Spautz.[14]
[10]Outline of submissions of the third defendant dated 3 June 2013 at paragraph [18].
[11](1960) 104 CLR 186.
[12](1980) 147 CLR 75.
[13](1993) 177 CLR 378.
[14](1992) 174 CLR 509.
Secondly, the third defendant submits that there is no reason why a panel considering a physical injury and its consequences should not have a psychiatrist as a member. In the words of the third defendant:
Many cases involve the issue whether the restrictions and symptoms alleged by the claimant are physically or psychologically driven. There is no relevant restriction on the discretion of the convenors of medical panels as to how many practitioners of what qualifications should constitute a medical panel.[15]
[15]Outline of submissions of the third defendant dated 3 June 2013 at paragraphs [20]-[21].
Thirdly, it was submitted that a medical panel “must consider all injuries alleged in the claim”. Fourthly, it was submitted that certiorari did not lie. The foundation for this submission was said to be that the Deputy Convenor was performing “a purely administrative action when he convened a medical panel to consider and determine the medical question”.[16]
[16]Outline of submissions of the third defendant dated 3 June 2013 at paragraphs [22]-[28].
Physical and psychiatric injuries and the scheme of Part VBA
While “injury” is defined in s 28LB to mean “personal or bodily injury and includes … psychological or psychiatric injury”, physical injuries (described in Part VBA of the Wrongs Act as “injury to a person (other than a psychiatric injury)”) is dealt with differently from psychiatric injury in Part VBA. First, the threshold level for physical injury is impairment of more than 5%, whereas the threshold level in the case of psychiatric injury is impairment of more than 10%.[17] Secondly, s 28LF, which prescribes what is significant injury, defines the concept differently in separate sub-sections.[18]
[17]See s 28LB.
[18]Section 28LF(1) for physical injury, and s 28LF(2) for psychiatric injury.
Thirdly, save for irrelevant exceptions so far as the present proceeding is concerned, physical injuries fall to be assessed in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (4th Edition), whereas the degree of psychiatric impairment falls to be assessed in accordance with the same guides “as if for Chapter 14 there were substituted the guidelines entitled ‘The Guide to the Evaluation of Psychiatric Impairment for Clinicians’”.[19] Fourthly, as I have already noted, in assessing a degree of impairment under Part VBA “regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury”.[20]
[19]See ss 28LH and 28LI.
[20]See s 28LJ.
Having noted that psychiatric injuries are treated differently from physical injuries in Part VBA, reference needs to be made to s 28LL. Section 28LL provides:
(1) If a person has more than one impairment resulting from injuries which arose out of the same incident, all of those impairments must be included in the one assessment.
(2) For the purposes of this Part, impairments, other than psychiatric impairments, resulting from injuries which arose out of the same incident are to be assessed together using the combination tables in the A.M.A. Guides or the methods prescribed for the purposes of this Part.
(3) For the purposes of this Part, impairments from unrelated injuries or causes are to be disregarded in making an assessment.
Sub-sections (2) and (3) of s 28LL pose little difficulty. Sub-section (2) requires different physical impairments to be combined using well known combination tables that are based on the idea that a second or succeeding impairment should apply not to the whole, but only to the part that remains after the first and other impairments have been applied. The combined value produced by these combination tables is based on the formula: A% + B% x (100% - A%) equals the combined value of A% plus B%. Sub-section (3) merely excludes unrelated injuries or causes to the injured person’s claim.
The purpose of s 28LL(1), and its operation, is perhaps more difficult to divine. There can be no difficulty in respect of a purely physical injury case. All of the physical impairments fall to be combined and included in the one assessment. However, whatever might be the full scope of the operation of s 28LL(1), when one examines the other provisions of Part VBA, s 28LL(1) cannot mean that a physical impairment is in some way to be combined with a psychiatric impairment.
Broadly speaking, the scheme of Part VBA of the Act involves the parties trying to sort out whether the significant injury requirements of the Part have been met. This can be done by a claimant writing and asking a respondent to waive the requirement for an assessment,[21] or by a claimant providing a certificate of assessment and the prescribed information and waiting to see what course the respondent takes.[22] A medical panel only becomes involved in the event that the parties to the relevant civil proceeding (or proposed civil proceeding) are unable to agree about the issue of significant injury. It is in that context that the respondent to a claim “may refer a medical question in relation to the assessment [provided pursuant to s 28LT] to a medical panel for determination”.[23] Having exercised that right, the respondent is then liable for the fees and costs payable for the referral of the medical question.[24]
[21]See s 28LO.
[22]See ss 28LT, 28LW, 28LWA, 28LWB, 28LWE and 28LX.
[23]Section 28LWE.
[24]Section 28LX.
Consistently with the way civil litigation is fought in this State, it might be thought surprising if the proper construction of any of the provisions of Part VBA required or permitted a Convenor of Medical Panels to convene a medical panel to answer a medical question which was not in issue between the parties to the underlying civil dispute. Thus, it might reasonably be supposed that where a claimant has served a copy of a certificate of assessment certifying a degree of impairment from a non-psychiatric injury of more than 5%, and where no certificate of impairment certifying a more than 10% psychiatric injury is served, the dispute between the parties (at the significant injury stage) is, or might be thought to be one, as to whether the claimant has in fact suffered a whole person impairment of more than 5% in respect of his or her physical injury. Ordinarily, if a claimant wished to contend that he or she satisfied the significant injury requirements for a psychiatric injury, one might expect a certificate of assessment certifying that the claimant meets the psychiatric injury threshold level (more than 10%) to be served under s 28LT.
It would at least be curious to think that a Convenor of Medical Panels was required to take a step which would involve extra expense to resolve an issue which did not arise or was not in dispute between the parties. Having said that, I should say that nothing in this reasoning is inconsistent with what was said by Dixon J in Summers v Director of Housing & Ors.[25] It is to be remembered that different provisions have application (and different considerations may apply) in a case involving purely physical impairments that fall to be assessed in respect of the one claim.
[25][2012] VSC 395.
The form of the medical question referred
Section 28LWE permits a respondent on whom a certificate of assessment is served to refer a medical question in relation to the assessment to a medical panel. In his letter of 11 December 2012, the first defendant contended that, as a matter of law, he was only able to convene a panel to consider a medical question in the following terms:
Does the degree of impairment resulting from the injury to the claimant alleged in the claim satisfy the threshold level?
While this question follows closely the definition of “medical question” in s 28LB, there is (as counsel for the plaintiff pointed out) a small but significant difference between the question the first defendant asserted he was only able to convene a medical panel to consider and the definition in s 28LB. The definition of medical question in s 28B talks in terms of the degree of impairment resulting from injury, rather than in terms of the degree of impairment resulting from the injury as asserted by the first defendant. As was said (correctly in my view) by counsel for the plaintiff:
Importantly, the statutory definition of medical question does not include the definite article (‘the’) which appears in the convenor’s question. The statutory definition refers to ‘injury’, which is passive and suggests that the condition of ‘injury’ the subject of the medical question is open to delineation and refinement. This must necessarily be so in a case in which the injuries particularised in the underlying claim include secondary psychiatric injuries that must be excluded.[26]
[26]Plaintiff’s outline of submissions dated 15 May 2012 (sic) at paragraph [50].
Further, s 28LWE permits a respondent to refer a medical question “in relation to the assessment [served pursuant to s 28LT]”, and the expression “medical question” is defined in s 28LB to mean a question “as to whether” the degree of impairment resulting from injury satisfies the threshold level. There is, in my view, no warrant for requiring the medical question referred to be stated in the precise terms of the definition of “medical question” (either with or without the use of the definite article before the word “injury”). The question has to be framed in such a way as it satisfies the description of a question “as to whether” the degree of impairment satisfies the threshold level. In the circumstances of this case, it was permissible for the plaintiff to refer a medical question which was formulated so as to limit the medical panel’s consideration to whether the third defendant had sustained an injury other than psychiatric injury that satisfied the threshold level (more than 5%). This would have required a medical panel to determine the degree of impairment of all of the plaintiff’s relevant physical injuries. Consistently with the provisions of Part VBA, it would not have been competent for the plaintiff to attempt to limit from the medical panel’s consideration any physical injury sustained as a result of the plaintiff’s alleged negligence.[27]
[27]See generally, Summers v Director of Housing & Ors [2012] VSC 395 (Dixon J).
Further, it is to be remembered that the expression “medical question” is not defined to mean only the question of whether the degree of impairment satisfies the threshold level. While Parliament could have so defined “medical question”, it chose the wider definition, namely “a question as to whether the degree of impairment … satisfies the threshold level”. In different contexts, the words “as to” have been held to connote a broad or wide nexus with the relevant subject matter.[28]
[28]See, for example, Re JJT & Ors; ex parte Victoria Legal Aid (1998) 195 CLR 184. See further, Australian Gaslight Company & Anor v Mine Subsistence Board (2006) 147 LGERA 433, 449-450 [50]-[54] (reversed on appeal on a different point in Mine Subsistence Board v Australian Gaslight Company & Anor (2007) 152 LGERA 73 - and see also the subsequent appeal to the High Court in Alinta LTG Ltd v Mine Subsistence Board (2008) 82 ALJR 826).
To the extent that it was submitted that McAlister v Leitch & Ors[29] stands for the proposition that the Convenor of Medical Panels is required to convene a medical panel constituted by appropriate members to answer the medical question he formulated (rather than the one referred by the plaintiff) and to make a determination concerning psychiatric injuries where no certificate of assessment in relation to psychiatric injuries had been served, this submission must be rejected. In McAlister, there was no argument that the medical panel’s opinion was vitiated by jurisdictional error because the panel failed to take into account a psychiatric injury. This was a matter of common ground between the parties.[30] All that can be said about McAlister on this issue is that in the circumstances of that case, where psychiatric injury was clearly in issue between the parties, his Honour was prepared to accept without argument that the parties were correct in concluding that the medical panel’s opinion was vitiated by jurisdictional error for failing to take into account the relevant psychiatric injury. McAlister’s case then deals with the consequences of a different point – namely, a respondent’s failure to make an express statement pursuant to s 28LW(2)(b) that the respondent was a “proper respondent to the claim”.
[29][2011] VSC 51.
[30]Ibid [4].
In his letter of 11 December 2012, the first defendant also relied upon this Court’s decision in Melbourne Health v Dr John Lloyd & Ors.[31] The first defendant asserted that, in accordance with the decision in Melbourne Health, “the parties have a clear obligation to identify all injuries as being potentially compensable injuries”. So much may be accepted. However, the point in Melbourne Health was a different one. In Melbourne Health, the Court was concerned to point out that it is only an injury alleged to be the fault of a respondent that falls for assessment under Part VBA. In the present case, that would mean that it is not the third defendant’s total knee condition that fell for assessment but rather, only that part of his condition which was alleged to be the fault of the plaintiff.
[31][2011] VSC 51 (Pagone J).
That said, in Melbourne Health, Pagone J made some pertinent observations about the form of the medical question referred under Part VBA. With respect, I agree with his Honour when stated:
What is more important, however, is that Melbourne Health [the respondent] had the obligation to set out the medical question referred to the medical panel. It, and by extension its solicitors, were obliged to assist the medical panel in discharging its functions by providing a precise identification of the medical question, and in particular of the injury, that could be productive of an answer relevant to enliven any entitlement to seek compensation for non-economic loss as contemplated by s 28LE.
There are several reasons why it is important that the person referring a question for determination of the medical panel takes care in identifying precisely the question being referred. One reason is simply that the obligation is imposed upon that person by statute and, therefore, the obligation must be discharged dutifully. Another reason is that the purpose of the obligation upon that person is designed to assist the medical panel in the discharge of its statutory task. A third is that the process adopted by Part VBA is not intended to lay down concealed traps for navigation only by lawyers trained in technicalities and fine points. Most significantly, however, it is the need to ensure that there is a match between the question determined by a medical panel and the entitlement which may be enlivened through s 28LE.[32]
[32]Ibid [8]-[9].
The resolution of this proceeding
In the circumstances of this case, the first and second defendants erred in law when they convened a medical panel to assess the third defendant’s degree of impairment for psychiatric injury. There was no warrant to take this step having regard to the fact that the third defendant did not serve any certificate of assessment in relation to psychiatric impairment under s 28LT; nor did he contend that he suffered from some relevant non-secondary psychiatric injury. Having regard to the dispute actually between the plaintiff and the third defendant, the first and second defendants misunderstood the statutory task imposed upon them.
While the plaintiff invited me to conclude that there could never be a basis for a medical panel to be convened to assess a psychiatric impairment when the only certificate of assessment served under s 28LT related to physical injuries,[33] I am not prepared to say that there can be no case where an appropriate medical question might be referred that deals with psychiatric impairment, even though the only certificate served deals with physical impairment. That said, however, it is likely that such cases would be very rare. Consistently with the scheme of Part VBA, if a claimant wishes to contend that psychiatric injury satisfies the threshold level, then a certificate of assessment dealing with that injury and that threshold should be served pursuant to s 28LT. All that need be said for present purposes is the mere insertion of the shibboleth “psychological reaction” at the end of a set of particulars of injury in a statement of claim cannot, without more, justify a convenor or deputy convenor of medical panels altering the form of a referred question without the relevant respondent’s consent.[34]
[33]And similarly in the reverse circumstance where a psychiatric injury certificate of assessment is served there should ordinarily be no medical panel convened to assess physical impairment.
[34]At one level it might be said that every significant physical injury carries with it some psychological reaction. However, whether this “psychological reaction” would routinely (or even commonly) be not secondary to the physical injury (cf s 28LJ) and produce impairment assessing at more than 10% must be open to debate.
While the plaintiff has established that the first and second defendants exceeded their jurisdiction in convening a medical panel to conduct an assessment in respect of an issue that was not properly joined by the plaintiff and the third defendant, as a matter of discretion I do not propose to quash the determination of the first and second defendants. The medical panel performed the task it was required to perform, and the task it was given jurisdiction to perform, when it assessed the third defendant’s physical injuries and impairment. The fact that it also performed a second task beyond jurisdiction, and determined that matter in the plaintiff’s favour, does not vitiate the separate and discrete task that it performed within jurisdiction. Quashing the first and second defendants’ determination to convene a medical panel to determine the third defendant’s psychiatric impairment would not serve any useful purpose – the third defendant now having satisfied the requirements of Part VBA so as to be able to claim damages for non-economic loss.
At the hearing of this proceeding, counsel for the plaintiff submitted that as an alternative to certiorari, the Court might declare that:
The first defendant committed jurisdictional error in that he had no power to convene a medical panel to answer a medical question framed by him concerning all physical and psychiatric injuries alleged in the claim.
Additionally, counsel for the plaintiff contended that, if the plaintiff’s contentions were accepted, an order should be made enjoining the first defendant from recovering or seeking to recover from the plaintiff any amount which was referable to any assessment and determination by the medical panel as to psychiatric impairment. As a matter of discretion, I do not propose to make either of these orders. A declaration in the terms sought by the plaintiff would serve little purpose. I accept that in convening medical panels in the future, the first and second defendants (as Convenor and Deputy Convenor of Medical Panels) will endeavour faithfully to comply with the reasons in this judgment – as they have with respect to the reasons in other decisions of this Court.
As to the suggested injunction to restrain the first and second defendants from recovering from the plaintiff an unallocated portion of a small account, in my view there is no warrant for taking such a step. The first and second defendants perform public functions as part of a process designed to facilitate the resolution of disputes between civil litigants. Subject to hearing the parties on any question of cost in this proceeding, the question of any cost incurred as part of the significant injury process can best be dealt with between the real protagonists, the plaintiff and the third defendant, as a question of costs in the underlying County Court proceeding.
That said, and in view of the conclusions I have set out above, I can now express my views on the third defendant’s remaining arguments briefly. First, insofar as the third defendant submitted that the first and second defendants were not amenable to certiorari, I reject this submission. If the first and second defendants commit an error of law and exceed their jurisdiction in convening a medical panel, there is no reason in authority why they should not be liable to judicial review subject to appropriate discretionary considerations.[35] Calling the decision made by the first and second defendants “administrative” does not immunise the first and second defendants from judicial review when they commit jurisdictional error.
[35]See generally, Re McBain; Ex parte Catholic Bishops Conference (2002) 209 CLR 372, 417 [98] (McHugh J); Ruddock v Taylor (2005) 222 CLR 612, 656 [159]-[160] (Kirby J).
I reject the third defendant’s submission that this proceeding is an abuse of process. No doubt the plaintiff was and is concerned that he not be required to pay for examinations arranged beyond jurisdiction. However, that fact alone does not make this proceeding an abuse of process. The plaintiff had and has a legitimate interest in pursuing this proceeding. There is no basis for concluding that it was instituted for some “illegitimate purpose”.
Finally, I accept the third defendant’s submission that, in an appropriate case, there may be no error in the Convenor of Medical Panels convening a panel containing a psychiatrist for the purpose of considering a physical injury. However, that is not the point. The question in this case was whether the first and second defendants erred by convening a panel to consider a medical question that had not been referred by the plaintiff pursuant to s 28LWE – and which question was not one that had properly been joined by the plaintiff and the third defendant. That said, I imagine it would be a relatively rare case where a psychiatrist would be appointed to a medical panel tasked with the job of considering a physical injury impairment or impairments.
Conclusion
While the plaintiff has established jurisdictional error, for the reasons given above in relation to discretionary considerations, I do not propose to quash the determination or make either of the alternative orders sought by the plaintiff. Having dealt with the issues raised in this proceeding, it is sufficient for the proceeding to now be dismissed.
“any one or more of the following-
(a) pain and suffering;
(b) loss of amenities of life;
(c) loss of enjoyment of life.”
3
10
0