Nguyen v Disler
[2021] VSC 140
•26 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 01402
| BRIAN NGUYEN | Plaintiff |
| v | |
| PETER DISLER & ORS (according to the attached schedule) | Defendants |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 March 2021 |
DATE OF JUDGMENT: | 26 March 2021 |
CASE MAY BE CITED AS: | Nguyen v Disler |
MEDIUM NEUTRAL CITATION: | [2021] VSC 140 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of Medical Panel – Panel’s opinion that there was no current physical or psychiatric condition related to the injury – Where plaintiff had complained of ongoing headaches – Whether plaintiff awarded procedural fairness – Whether Panel’s opinion legally unreasonable – Whether Panel’s reasons sufficient – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V Morfuni QC with Ms M Tsikaris | Patrick Robinson & Co |
| For the Sixth Defendant | Mr M Fleming QC with Ms F Spencer | Minter Ellison |
TABLE OF CONTENTS
A. Background................................................................................................................................... 1
B. Procedural Fairness...................................................................................................................... 1
C. Legal Unreasonableness............................................................................................................. 3
C.1.Legal unreasonableness, if established, would amount to jurisdictional error.......... 3
C.2.Did the Panel act unreasonably?........................................................................................ 5
C.2.1.Was it open to the Panel to reach the conclusion it did?................................... 8
C.2.2.Was the Panel’s reasoning process legally unreasonable in light of the complaint of ongoing symptoms?.............................................................................................. 10
D. Were the Panel’s reasons sufficient?...................................................................................... 12
D.1.The disagreement with Professor Crowe’s diagnosis.................................................. 13
D.2.The observations made by Dr Takyar and Associate Professor Doherty.................. 13
D.3.The headaches.................................................................................................................... 14
E. Capacity........................................................................................................................................ 14
F. Conclusion................................................................................................................................... 15
HIS HONOUR:
A. Background
Mr Nguyen suffered injury on 10 September 1990 when a steel bar fell onto his head in the course of his employment with Iveco Trucks Australia Ltd. He made a claim for compensation under the Accident Compensation Act 1985 (‘the Act’). The claim was accepted and Mr Nguyen commenced to receive benefits under the Act, including weekly payments of compensation. On 24 October 2012, some 22 years later, the Victorian WorkCover Authority advised Mr Nguyen that his entitlement to weekly payments under the Act would cease from 26 January 2013. On 24 September 2018, almost a further six years later, Mr Nguyen commenced proceedings in the Magistrates’ Court of Victoria against Iveco Trucks, in which he sought orders that his weekly payments be reinstated as from 26 January 2013.
The Magistrates’ Court referred questions to a Medical Panel established under the Workplace Injury Rehabilitation and Compensation Act 2013. The Panel (consisting of two psychiatrists, an otolaryngologist, a rehabilitation physician and a neurologist) assessed Mr Nguyen in December 2019. The Panel formed the view that, although Mr Nguyen had sustained ‘a minor traumatic brain injury’ in 1990, he had no current physical or psychiatric condition that was related to that initial injury.
Mr Nguyen seeks to have the Panel’s opinion quashed on the grounds that the Panel denied him procedural fairness, that its decision was legally unreasonable, and that it failed to give adequate reasons for its decision.
The members of the Panel are the first to fifth defendants. Iveco Trucks is the sixth defendant. The first to fifth defendants did not participate in the hearing, but have advised the Court and the other parties that they will abide the Court’s decision and do not wish to be heard unless costs are sought against them.
B. Procedural Fairness
In the course of oral argument, counsel for Mr Nguyen accepted that the question of whether or not Mr Nguyen still suffered from the effects of the 1990 injury was squarely before the Panel. He confined the argument under this ground to the way in which the Panel had dealt with the absence of clinical notes from Mr Nguyen’s treating practitioners for the period following his September 1990 injury up until 6 February 2002. Mr Nguyen submitted that:
(a) The Panel treated the absence of those records as a factor in making its decision that Mr Nguyen had recovered from his compensable injury. More specifically, that the Panel relied on the absence of those records as a reason for concluding that Mr Nguyen did not take tramadol (or by implication any other analgesic medication) for headaches for the period between his 1990 injury and up until 6 February 2002 — a period of some 12 years — and that this was supportive of a view that the tramadol taken after that time was not for the original head injury; and
(b) In circumstances where neither party had invited the Panel to place any significance on the lack of clinical records covering that period, the Panel was required to give Mr Nguyen notice that it was considering using the absence of those notes in that way so that Mr Nguyen could either obtain and provide the missing notes or make submissions in relation the significance of their absence. Alternatively, the Panel was required to obtain the missing notes for itself.
Mr Nguyen said the inference should be drawn from the following passages in the Panel’s reasons, placed in a context where the Panel ultimately concluded that, as at December 2019, Mr Nguyen had recovered from his compensable injury:
The Panel were not provided with any records of the management of Mr Nguyen by his General Practitioner at the time of the incident (the attached extracts of the records of the Mossfield Medical Centre starting only on 24 October 2001, after the alleged injuries) and the first reference in the records of the Clinic Altona being to his attendance for ‘headache’ in February 2002).
…
His current medication regimen comprises Tramol-SR 100 mg once or twice a day for the headaches and Oxazepam 15–30mg twice daily. In this respect the Panel referred to the extracts of the medical records of the Clinic Altona dated from 6 February 2002 to 2 April 2019 and noted that Mr Nguyen was already taking Tramodol and a benzodiazepine at the time of the first record and these medications continued from that time on.
The above passages from the Panel’s reasons are statements of incontestable fact. I do not see that the Panel treated the lack of notes as being of particular importance. The passages are not inconsistent with Mr Nguyen having ongoing symptoms or treatment throughout that period. I do not read these passages, or indeed any other part of the Panel’s reasons, as conveying that the Panel relied on the absence of clinical notes for the period between the 1990 injury and 6 February 2002 as a reason to conclude that Mr Nguyen did not suffer from headaches, or obtain medication for those headaches, during that period.
Given that I do not accept the premise of Mr Nguyen’s argument under this ground, there is no need for me to decide whether, if that premise were made out, the Panel would have been required to do more than it did.
Mr Nguyen also relied on the fact that the Panel referred to a passage from a report from Mr Brownbill that misquoted a passage from Dr Riley. I accept that Mr Brownbill, in his 26 March 1991 report, misquoted Dr Riley’s 7 December 1990 report as saying that Mr Nguyen’s headaches were probably a psychological aspect of a post-concussive syndrome. In fact, Dr Riley had said that it was Mr Nguyen’s tentativeness that was probably a psychological aspect of his post-concussive syndrome. However, in a later report dated 15 August 1991, Dr Riley expressed the view that, while there may have been some post-concussion symptoms with giddiness and tinnitus, those symptoms had subsided, and what remained appeared to be ‘largely a psychological reaction of a post-injury neurosis’. Accordingly, if there were an error on the part of the Panel, it was an error without consequence. If anything, the error worked in Mr Nguyen’s favour. But in any event, I do not accept that the inclusion of a reference to Mr Brownbill’s report amounted to a failure to provide procedural fairness to Mr Nguyen.
C. Legal Unreasonableness
C.1. Legal unreasonableness, if established, would amount to jurisdictional error
The High Court has not in terms confirmed that legal unreasonableness is a ground of jurisdictional error in judicial review proceedings outside findings of jurisdictional fact or the exercise of a discretion.[1] The Court of Appeal has expressly left that issue open.[2] The principle seems to be that it is a matter of inference to be drawn from the legislative donation of the power in each case.[3] I do note, however, that it would be an odd result if an administrative body were unable to act unreasonably in the exercise of a discretion, yet were able to act unreasonably in the fulfilment of its core function.
[1]See, for a case concerning jurisdictional fact, Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. See, for cases concerning the exercise of a discretion, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (‘Li’); Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 (‘SZVFW’).
[2]Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, [92] (Neave JA, Santamaria JA and Ginnane AJA agreeing); Chang v Neill (2019) 62 VR 174, 194 [70], 212 [146]–[149] (Maxwell ACJ, Beach and Kyrou JJA); MailtonHoldings Pty Ltd v Jussy [2019] VSCA 281, [48] (Beach and Ashley JJA).
[3]Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J); Li (n 1) 350–1 [28]–[29] (French CJ); 362 [63], 363–4 [67] (Hayne, Kiefel and Bell JJ), [88]–[92] 370–1 (Gageler J); SZVFW (n 1) 564–5 [53] (Gageler J), 572–3 [80] (Nettle and Gordon JJ), 583 [131] (Edelman J).
Here, the legislature has entrusted the Panel with the power to answer medical questions referred to it by the Court. A worker is, for practical purposes, required to meet with the Panel, supply all documents in his or her possession that relate to the medical questions, and submit to a medical examination.[4] The answers provided by the Panel are binding on the Court,[5] and thus are ordinarily determinative of workers’ rights to compensation, and employers’ obligations to pay compensation, for work-related injuries or claimed injuries. If the same issues were to be determined by a Court, the Court would be required to act reasonably in its determination of those issues; that is, if the Court made findings that were not reasonably open, then the Court’s decision would be liable to be set aside on appeal. This would be the case even on an appeal on a question of law arising from a finding of fact.[6]
[4]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 307, 309.
[5]Ibid s 313(4).
[6]See, eg, Young v Paddle Bros Pty Ltd [1956] VLR 38, 41 (Herring CJ); S v Crimes Compensation Tribunal [1998] 1 VR 83, 91 (Phillips JA); Metcalf Crane Services Pty Ltd v Rathner [2011] VSC 195, [40] (Robson J); Victoria v Subramanian (2008) 19 VR 335, 347–8 [32] (Cavanough J). Cf TAC v O’Reilly [1999] 2 VR 436, 460 [58] (Callaway JA).
The legislature has imposed on the Panel procedural obligations and given it powers that are not imposed on or available to a Court, such as the obligation to act informally and the power to inform itself on any matter in any manner it thinks fit.[7] However, the significance of the Panel’s role in the determination of workers’ and employers’ obligations, and the fact that the worker is obliged to expose him or herself to a full medical examination by the Panel as part of that process, to my mind justify a conclusion that the legislature intended that the Panel act reasonably when exercising its powers — ie that it not act irrationally, arbitrarily or capriciously, or reach findings that no reasonable panel could reach in the circumstances. Probably, in any event there is a presumption to that effect,[8] and there is no reason for which that presumption should be displaced.
[7]Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 303.
[8]Li (n 1) 351 [29] (French CJ), 362 [63] (Hayne, Kiefel and Bell JJ), 370–1 [88]–[90] (Gageler J); SZVFW (n 1) 564–5 [51]–[53] (Gageler J), 572–3 [80] (Nettle and Gordon JJ), 583–6 [131]–[135] (Edelman J).
It follows from the above that if a panel has acted in that way, then it has exceeded its jurisdiction and its decision is liable to be quashed on that ground. I respectfully agree with the observations of Richards J in Schmael v Leach.[9]
[9][2020] VSC 562, [36]–[37].
Of course, in determining whether a panel has acted unreasonably in this sense, proper account must be taken of its role as an expert body. The panel is not a Court, which evaluates and decides between evidence put before it; rather, the panel itself examines a worker and takes a history from them, and applies its own expertise to arrive at an answer to a stated question.[10] A party that contends that legal unreasonableness arises from the ultimate opinion that is reached — that is, that the opinion expressed was not an opinion that a panel acting reasonably could have formed — must confront this distinction.
C.2. Did the Panel act unreasonably?
[10]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 498–9 [47] (French CJ, Crennan, Bell, Gageler and Keane JJ) (‘Wingfoot’).
The Panel, in support of its conclusion, noted the following:
(a) Mr Brownbill, a neurosurgeon who had examined Mr Nguyen on 22 March 1991, found no clinical abnormality and expressed the view that Mr Nguyen had suffered a mild concussive head injury with post-concussion syndrome but that this would have resolved within six months of the injury, with the continuation of headache representing a psychological reaction rather than any cerebral or cranial nerve damage sustained;
(b) Neuropsychological assessments taken at different times by Professor Crowe showed some tendency to less than genuine effort, and Professor Crowe had expressed the view that Mr Nguyen had sustained a ‘very mild closed head injury’ that should not have resulted in the pattern of cognitive and emotional deficits that Mr Nguyen described. Professor Crowe nonetheless continued to diagnose a post-concussion syndrome; and
(c) A 28 September 2012 CT scan of the brain was reported as normal.
Upon examination of Mr Nguyen, the Panel noted that his cranial nerves were normal, and that there was no evidence of abnormal cerebellar function.
It then expressed its opinion that:
Mr Nguyen had sustained a minor traumatic brain injury with no loss of consciousness, no evidence of intracranial bleeding and no significant period of post traumatic amnesia which has now resolved, and has no current physical condition relevant to the alleged head injury, brain damage, neurodegenerative disorder and insomnia injuries;[11]
[11]Emphasis added.
And then:
With respect to Mr Nguyen’s alleged ‘concussion post-concussion syndrome, and headaches’ injuries, the Panel considered the following;
o Mr Nguyen reported headaches which commenced after the alleged incident and have persisted to the present time; in the opinion of the Panel such headaches are unlikely to be a physical consequence of such a minor traumatic brain injury;
o the reference made by Mr Brownbill (in his cited report of 26 March 1991, about six months after the initial injury) that the continuation of the described headache at that time would be unlikely to reflect ‘any cerebral or cranial nerve damage sustained’;
othe report of Dr John Riley (Psychiatrist), on 7 December 1990 cited by Mr Brownbill, expressing the opinion that the headache reflected the psychological aspect of a post-concussive syndrome. The Panel considered that this diagnosis was not unreasonable at that time, about two months after the incident, but also considered that post-concussion syndrome usually settles in weeks or months, and that other factors could have accounted for the ongoing headaches;
othe diagnosis made by Prof Simon Crowe of ‘a chronic post concussional syndrome’ over the several assessments that he undertook between 2004 and 2019, but also noted his somewhat contrary opinion that the ‘injury as described should not have resulted in this pattern of disruption’, that in 2019 he had described a broad range of deficits including ‘a superlative level of recall of visuospatial memory which is not consistent with what would be expected for a closed head injury of the type noted in Mr Nguyen’s case’, and his documentation of Mr Nguyen performing with ‘less than genuine effort on all four tests of performance validity applied’.
o The Panel took all of the above into account, including its own clinical examination and its cumulative expertise and experience in concluding that Mr Nguyen has no current clinical evidence of concussion, in disagreeing with Prof Crowe’s diagnosis of ongoing post-concussion syndrome, and in concluding that Mr Nguyen’s ongoing headaches are not attributable to the alleged minor traumatic brain injury which was alleged to have occurred over 29 years ago and has now resolved…[12]
[12]Emphasis added.
The Panel, which also conducted a psychiatric evaluation, referred to various psychiatric reports before it, and then expressed its further conclusion that:
it was feasible that Mr Nguyen did develop a post-concussion syndrome with anxiety and depression after the incident, but based on its own current psychiatric assessment, the Panel concluded that any such psychiatric condition has now resolved, and Mr Nguyen had no current evidence of any psychiatric condition relevant to the claimed anxiety and depression injuries.[13]
[13]Emphasis added.
Mr Nguyen’s ground of appeal was formulated as follows:
The Panel’s hypothesis is unreasonable administratively as medical material on which the Panel relied does not support the hypothesis and findings of the Panel.
This ground was not developed in Mr Nguyen’s written submissions filed in advance of trial. However, Mr Nguyen’s counsel submitted orally, as I understood it, that the Panel’s findings — essentially that Mr Nguyen’s post-concussive syndrome would have resolved within a matter of months — was unreasonable, in the sense that it cannot be rationally and reasonably explained, because:
(a) The Panel did not explain why it had come to a different view to that of many, if not most, of the practitioners whose reports were before the Panel, or did not take those reports into account and evaluate them;
(b) The Panel did not explain what the cause was of Mr Nguyen’s ongoing headaches and other symptoms, assuming he had them; and/or
(c) If the Panel thought that Mr Nguyen did not suffer from the ongoing headaches and other symptoms he described, it did not say that in its reasons and there was no proper basis for doubting Mr Nguyen in any event.
I accept that, in an appropriate case, legal unreasonableness may be established by either demonstrating some illogical, capricious or irrational reasoning process, or by demonstrating that the decision ultimately reached was not a decision at which a reasonable administrative body could arrive. Teasing out the matters referred to in para 21 above, and putting to one side the extent to which they challenge the sufficiency of the Panel’s reasons, I understood Mr Nguyen to be submitting that:
(a) The Panel’s conclusion that Mr Nguyen had recovered from his compensable injury was not open, in the sense that no Panel acting reasonably could have arrived at that conclusion; and
(b) The Panel’s reasoning process was illogical, because it found that Mr Nguyen had recovered from his compensable injury, without accommodating in its reasoning process for the fact that Mr Nguyen had complained of continuing symptoms (particularly headaches) ever since the date of that injury.
C.2.1. Was it open to the Panel to reach the conclusion it did?
In my opinion, the conclusion reached by the Panel was open to it. I do not accept that it was legally unreasonable for the Panel to form the views it did, even if they were different to those formed by many, if not most, of the practitioners whose reports were before it. The fact that its opinion differed from the opinions of others does not establish that the Panel’s decision was unreasonable. As noted in para 14 above, because the Panel is an expert medical body that applies its own expertise, it is difficult to see how a Court on review could conclude that it had acted unreasonably — in the sense that it had formed a view that no Panel acting reasonably could form — simply by comparing the medical conclusion reached by it to conclusions reached by others.
This is particularly so in the circumstances of this case, where there were medical opinions before the Panel that cast doubt on whether Mr Nguyen was still suffering from ongoing effects of the initial compensable injury. These included (and this may not be exhaustive):
(a) The report from the neurosurgeon Mr Brownbill referred to above dated 26 March 1991, in which he said that Mr Nguyen’s injury was mild, that examination did not show any neurological abnormality, that no neurological damage had been sustained, that his post-concussive syndrome would have resolved within six months, and that the prognosis lay ‘within the Psychiatric proven[en]ce’;
(b) A report from the neurologist Dr Ebeling dated 12 October 1994, in which he said that there was ‘no tangible neurological abnormality’ on testing and that it was ‘inconceivable’ that Mr Nguyen could be harbouring ongoing active intracranial complications;
(c) A report from the neurologist Professor Iansek dated 11 July 2002, in which he said that no evidence of neurological dysfunction existed;
(d) Reports from the psychiatrist Dr Kornan dated 20 February 2004 and 4 April 2012, in which he said that Mr Nguyen did not have ‘a psychiatric ill health condition’;
(e) A report from the neurologist Dr Roberts dated 26 April 2012, in which he said that there were no abnormal neurological abnormalities on examination, that he was ‘unable to make a diagnosis of an organic neurological disorder’, and that Mr Nguyen should be assessed by a psychiatrist;
(f) A report from the neuropsychologist Professor Crowe dated 10 March 2019, in which he said that, from a neuropsychological perspective, Mr Nguyen’s condition had resolved within one to three months of the 1990 incident, and that the ‘global pattern of deficit’ with which he now presented was attributable to ‘less than genuine effort in association with his emotional response to the injury’; and
(g) A report from the psychiatrist Associate Professor Doherty dated 18 March 2019, in which he said that Mr Nguyen presented with ‘an array of symptoms, with no clearly definable connection to the injury of 1990’, and that it was ‘not possible to link [his] current clinical presentation with the head injury of 1990’.
For the above reasons, I am not persuaded that the Panel’s conclusions were not open to the Panel.
C.2.2. Was the Panel’s reasoning process legally unreasonable in light of the complaint of ongoing symptoms?
In most cases, if a compensable injury produces complaints, and those complaints persist, it will be concluded by doctors examining a person that the person has not recovered from that initial injury. However, there are exceptions. It may be that the doctors do not believe that the complaints have continued unaltered or that the complaints are genuine, or if they are genuine the doctors may consider that they are now due to some other cause. Other causes could include the progression of a pre-existing condition (particularly in an aggravation case), or simply the aging process, or the development of some other condition altogether. Of course, it could be a combination of different matters. The opinions in this respect will be informed by all the circumstances personal to that person, and the doctors’ experience with like cases of injury.
It follows from this that the mere fact that Mr Nguyen asserted to the Panel that he had suffered from ongoing symptoms since the date of his accident does not of itself compel a conclusion that any finding other than that the compensable injury subsisted was illogical or irrational.
Mr Nguyen, as I understood it, contended that, in the absence of some reasoning process dealing with whether or not Mr Nguyen had continued to suffer from symptoms ever since his compensable injury (and if so, their cause), a finding that he had recovered from the injury was legally unreasonable. There must, as I understood the submission, have therefore been some logical leap or gap in the Panel’s analysis.
Iveco Trucks did not ask me to infer either that the Panel believed or disbelieved Mr Nguyen. Its position was that, if an inference is to be drawn, it is that the Panel did not consider it necessary to go down that path. Consistently with this position, Iveco Trucks submitted that the Panel was not required to decide whether Mr Nguyen had continued to suffer from ongoing symptoms since his injury or whether he was exaggerating his complaints in order for it to conclude that Mr Nguyen had recovered from his injury. It was sufficient for the Panel to conclude, as it by implication had, that, even if Mr Nguyen had ongoing symptoms, they were not sequelae of the initial compensable injury. As Iveco Trucks pointed about, this was consistent with the observation made in Wingfoot Australia Partners Pty Ltd v Kocak (‘Wingfoot’) that the Panel is not required to explain why it reached an opinion it did not form.[14]
[14]Wingfoot (n 10) 501–2 [56] (French CJ, Crennan, Bell, Gageler and Keane JJ).
I do not accept Iveco Truck’s submission that the Panel left open the question as to whether or not Mr Nguyen had ongoing headaches. To my mind, the final dot point in the passage set out in para 18 above establishes that the Panel accepted that Mr Nguyen did suffer from ongoing headaches, but that it concluded that they were not caused by the ‘alleged minor traumatic brain injury which … has now resolved’.
However, this does not mean that the Panel acted unlawfully. I prefer Iveco Truck’s submission on this point. In my opinion, it was open to the Panel to reach a conclusion that Mr Nguyen had recovered from his injury by the time the Panel assessed him without it, as part of that process, having to determine whether or not Mr Nguyen had suffered from ongoing consistent symptoms since 1990, or having to embark on an analysis of the nature and extent of any symptoms that Mr Nguyen may have experienced over the years. It would not have been legally unreasonable (in the sense of irrational or illogical) for a Panel in this Panel’s position to decline to decide whether Mr Nguyen had had consistent ongoing symptoms since 1990, or whether he was exaggerating, or whether any ongoing symptoms were due to some unrelated injury or life event, if the Panel were satisfied that, whatever be the case, any symptoms presently experienced were not related to Mr Nguyen’s initial compensable injury, from which he had in fact recovered. Accordingly, it was not legally unreasonable for this Panel to conclude, as I consider it did, that Mr Nguyen had ongoing headaches that were not caused by the compensable injury, without it having to identify the underlying cause of those headaches.
For these reasons, I do not accept that the Panel’s reasoning process was legally unreasonable.
D. Were the Panel’s reasons sufficient?
The Panel was obliged to state the actual path of reasoning by which it arrived at the opinion it formed in sufficient detail to enable the reviewing Court to see whether or not that opinion involved an error of law.[15] The Panel is not obliged to explain why it did not reach an opinion it did not form, even if that different opinion had been formed by other doctors whose material was before the Panel.[16]
[15]Ibid 501 [55] (French CJ, Crennan, Bell, Gageler and Keane JJ).
[16]Ibid 501–2 [56].
Mr Nguyen did not press the argument foreshadowed in his originating motion, and developed in his written submission, that the Panel’s reasons were inadequate because the Panel ‘relied heavily on its own authority-based opinion’ rather than on evidence-based medicine.
Mr Nguyen submitted in his written submissions that:
(a) The Panel had not provided a path of reasoning explaining why it disagreed with Professor Crowe’s diagnosis of a post-concussional syndrome; and
(b) The Panel’s reasons do not indicate that it had regard to the observations made by Dr Takyar in his 30 March 2019 report and by Associate Professor Doherty in his March and April 2019 reports.
In oral submissions, I understood Mr Nguyen to add the argument, related to the question of legal reasonableness discussed above, that the reasons were inadequate because they failed to state whether Mr Nguyen had ongoing headaches and, if so, to what they were referable.
D.1. The disagreement with Professor Crowe’s diagnosis
I do not accept that the Panel’s reasons fail to meet the Wingfoot test in this respect. The Panel was not obliged to explain why it did not reach an opinion it did not form, and so it was not obliged to explain why it did not reach an opinion that matched that of Professor Crowe. Because it was forming its own view, rather than adjudicating between the opinions of others, its only obligation was to have regard to the opinion of Professor Crowe. The Panel could otherwise give to that opinion such weight as it wished. Here, the reasons explicitly refer to Professor Crowe’s opinion and, in this way, clearly demonstrate that the Panel had regard to it. That was sufficient.
D.2. The observations made by Dr Takyar and Associate Professor Doherty
Dr Takyar recorded that Mr Nguyen presented with depressive symptoms (but no history of headaches) and opined in his report that Mr Nguyen had a psychiatric condition secondary to his initial physical injury. Associate Professor Doherty recorded that Mr Nguyen presented as ‘emotionally flat’ and with ‘an array of symptoms, with no clearly definable connection to the injury of 1990’. Associate Professor Doherty said that it was ‘not possible to link the current clinical presentation with the head injury of 1990, that is twenty-eight years ago’ and that Mr Nguyen’s ‘history is so incomplete, unreliable and not comprehensive enough to come to reasonable assessments of … what psychiatric condition he might have now, and what was present in the past’.
The Panel took its own history and conducted its own mental state examination. The Panel then expressly stated in its reasons that it had noted the reports of both Dr Takyar and Associate Professor Doherty, and briefly referred to Dr Takyar’s diagnosis and Associate Professor Doherty’s opinions. There is no room for doubt as to whether or not it erred by failing to have regard to those reports when forming its own opinion. Accordingly, its reasons are sufficient in this respect. Again, how much weight the Panel chose to give to those reports was a matter for it.
D.3. The headaches
It must be remembered that the Panel answered questions in its Certificate of Opinion, and the reasons are there to support those answers. Here, the Panel was asked: ‘what is the nature of [Mr Nguyen’s] current medical condition(s), if any, relevant to the following injuries …’ (and there was then set out all the injuries claimed in Mr Nguyen’s statement of claim). The Panel’s key answers were as follows:
In the Panel’s opinion Mr Nguyen:
·sustained a minor traumatic brain injury with no loss of consciousness, no evidence of intracranial bleeding and no significant period of post traumatic amnesia which has now resolved, and has no current physical condition relevant to the alleged head injury …
·has no current psychiatric condition relevant to the alleged anxiety and depression injuries.
It seems to me that the Panel’s reasons sufficiently reveal its path of reasoning to those conclusions. As I read the Panel’s reasons, it accepted that Mr Nguyen had ongoing symptoms, such as headaches, but did not consider them to be sequelae of the initial compensable injury (either organically, or as a symptom of a reactive psychiatric condition). In light of my consideration of the legal requirements set out in Part C above, the Panel’s reasons establish to my satisfaction that it acted lawfully in coming to these opinions.
For completeness, I should add that, even if I were to have accepted Iveco Truck’s submission that the Panel neither accepted nor rejected the existence of ongoing headaches, then I would nevertheless have concluded that the reasons are adequate. This is because, having regard to my consideration of the legal requirements set out in Part C above, the Panel was not required to either accept or reject the existence of ongoing headaches as part of its reasoning process.
E. Capacity
In his originating motion, Mr Nguyen also challenged answers of the Panel to questions directed at Mr Nguyen’s capacity for work. Given the Panel’s finding that Mr Nguyen had no ongoing compensable injury, the lawfulness of the Panel’s answers to the questions directed at capacity does not have to be determined. Mr Nguyen accepted this during oral submissions.
F. Conclusion
Mr Nguyen has not made out any of his grounds of appeal, and accordingly the proceeding should be dismissed.
I will hear the parties on the question of costs.
SCHEDULE OF PARTIES
BETWEEN
| BRIAN NGUYEN | Plaintiff |
| – and – | |
| PETER DISLER | First Defendant |
| JOHN CRONIN | Second Defendant |
| CHRIS GRANT | Third Defendant |
| BRIAN COSTELLO | Fourth Defendant |
| PAUL MCCRORY | Fifth Defendant |
| IVECO TRUCKS AUSTRALIA LTD | Sixth Defendant |
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