Troeth v Cerberus Catering Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03409

MARGARET ANNE TROETH	Plaintiff
v
CERBERUS CATERING PTY LTD (ACN 144 901 575)	First Defendant
and
ASSOCIATE PROFESSOR PETER GIBBONS (Convenor of Medical Panels)	Second Defendant
and
MEDICAL PANEL CONSTITUTED BY DR ALAN ANDREWS, PROFESSOR CASSANDRA SZOEKE and MR BRIAN COSTELLO	Third Defendants

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 November 2022
DATE OF JUDGMENT:	15 December 2022
CASE MAY BE CITED AS:	Troeth v Cerberus Catering Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 767

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ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel that whole person impairment resulting from injury to the claimant alleged in the claim did not satisfy the threshold level – Plaintiff suffered injuries in an incident in which she fell down stairs at a restaurant – Subsequent treatment and rehabilitation – Extent of persisting symptoms, including dizziness and associated episodes of loss of consciousness – Assessment of mental status and integrative functioning – Section 4.1b of the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment – Claimed jurisdictional error and/or error on the face of the record, legal unreasonableness and/or failure to enquire – Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, Chang v Neill (2019) 62 VR 174, Sidiqi v Kotsios [2021] VSCA 187, Schmael v Leach [2020] VSC 562 , Edwards v State of Victoria [2021] VSC 423 and CD v Central Gippsland Health Service [2022] VSC 462 – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	JP Brett KC with LBR Allan	Arnold Thomas & Becker Lawyers
For the First Defendant	RL Kaye SC	Hall & Wilcox
For the Second and Third Defendants	No appearance	Victorian Government Solicitor’s Office

HIS HONOUR:

A Introduction

The plaintiff was born on 27 July 1950. In September 2017, she was working in modified duties as a bar and gaming room attendant.

On 29 September 2017, she was at the Cerberus Restaurant in Black Rock and fell down a flight of stairs after losing her balance (‘the incident’).

The plaintiff lost consciousness and was conveyed to the Alfred Hospital by ambulance. She was semi-conscious for approximately two weeks and was placed in a high dependency unit before being transferred to the ward. After she regained normal consciousness, she was transferred to Caulfield Rehabilitation Hospital.

As a result of the incident, the plaintiff makes the following claims of injury –

•        traumatic bilateral sub-arachnoid haematomas and haemorrhage;
•        right subdural haemorrhage and right temporal contusion;
•        fracture to the left temporal bones;
•        fractures to the left posterior third, fourth and fifth ribs;
•        left clavicle fracture;
•        right partial fourth cranial nerve palsy;
•        traumatic brain injury;
•        vertigo;
•        persisting neck pain and tension headaches; and
•        consequential psychological injuries.

In the course of her rehabilitation, the plaintiff complained of symptoms including dizziness and difficulties with balance. It seems that she had a fall while at Caulfield Rehabilitation Hospital and, after she was discharged, undertook about six months of further rehabilitation via Kingston Hospital.

The plaintiff complained of various symptoms including dizziness, difficulties with balance and incidents in which she had suffered a loss of consciousness. She did not return to work.

Pursuant to s 28LWE of the Wrongs Act 1958 (Vic), the first respondent referred a medical question for the determination of a medical panel.

The panel was comprised of a general practitioner, a otolaryngologist and a neurologist. The general practitioner and otolaryngologist examined the plaintiff on 22 March 2021 and the neurologist examined her on 2 June 2021.

On 19 July 2021, the panel issued a certificate of determination stating and answering the medical question as follows –

Question:Does the degree of impairment resulting from the injury to the claimant alleged in the claim satisfy the threshold level?
Answer:The Panel determined that the degree of whole person impairment resulting from the injury to the claimant alleged in the claim does not satisfy the threshold level.[1]

[1]Amended Court Book dated 25 October 2022 (‘ACB’), 52.

The certificate of determination was accompanied by the panel’s written reasons for determination.[2]
[2]Ibid 52-63.

B The panel’s reasons

The panel noted that the plaintiff had been accompanied by her son who had provided occasional clarifying or corroborating information.[3]
[3]Ibid 54.

The panel recorded the plaintiff’s history of the incident and her subsequent clinical course. In the course of that passage of reasoning, the panel made various observations including the following –

The Panel noted an Allied Health Discharge Summary, dated 20 November 2017, which details that the claimant was; independent with toileting, showering and dressing; independent with breakfast preparation and light cleaning; was socialising with friends going for lunch; and had reported interest in returning to work in the field of hospitality once feeling medically and cognitively ready. The Allied Health Discharge Transfer Summary also states that the claimant is ‘Indep nil aid +/-eye patch’ for walking indoors/outdoors.
The Panel noted a letter by specialise Rehabilitation Physician Dr Brian Anthonisz, dated 15 January 2018, wherein is written ‘I reviewed (the claimant) in the Neuro Rehabilitation Clinic today. She is now over three months post traumatic head injury with subarachnoid haemorrhage and a small right subdural haematoma. She had a PTA of around nine days. She has been able to be successfully discharged home where she is independent with all activities of daily living. She continues to have some mild dizziness on occasion which is also improving and I understand she is having outpatient physiotherapy at Kingston Centre’. Dr Anthonisz also writes ‘Her diplopia has fully resolved and I could not find any evidence of it today. Her visual acuity was within normal limits being 6/6’. The Panel noted a VicRoads Medical Report by Dr Anthonisz, dated 15 January 2018, wherein he writes ‘has made an excellent recovery physically and cognitively’ and does not indicate that the claimant has a neurological disorder nor that she experiences problems due to blackouts, dizziness, syncope or vestibular disorders.
The Panel also noted a Sandringham Emergency Department discharge summary, dated 12 April 2018, wherein is detailed that the claimant presented with complaints of vertigo, headache, and ataxia, with the history detailed as ‘Pt had significant head injury Sept 2017 downstairs resulting in intracranial haemorrhage and skull fractures had PTA and traumatic vertigo since then with headaches and ataxia had an admission under trauma then neurosurg then transferred to Caulfield for rehab, have still been seeing physio at Kingston/Caulfield for vertigo and balance’ and ‘on Tuesday pt bumped head while getting into car, no LOC no other injuries since then severe vertigo, headache and ataxia today was unable to walk outside so presents to ED’.
The Panel noted Alfred Health Ear Nose and Throat Outpatient Progress Notes, dated 15 May 2018, wherein is written ‘Dix Hallpike- negative both sides’ with assessment of the claimant including ‘Resolved BPPV’.[4]

[4]ACB55-56.

The panel then recorded the plaintiff’s account of her ‘current symptoms and function’, including ‘dizziness and difficulties with her balance’, headache and visual symptoms. In respect of ‘function’, the panel stated –

The claimant told the Panel that she is independent in performing self-care activities, adding that she uses a shower chair and that when dressing sits on a bed. She said that she is able to do the cooking but the majority of household duties are undertaken by family and friends. She said that her symptoms of dizziness limit her ability to undertake tasks such as; changing the sheets; mopping; and prolonged vacuuming. She said that she avoids stairs. She said that she could possibly negotiate a small flight of stairs with a handrail. The claimant told the Panel she is able to drive a car, including reversing and turning her head, adding that this has been the case since 2018. The claimant said that she is able to shop alone, although she has her walking stick, and is able to walk alone with her dog.
She told the Panel that her symptoms and functional tolerances have been stable for several months preceding the Panel’s examination.[5]

[5]Ibid 57.

The panel recorded the following in respect of ‘current management’ –

The claimant told the panel that she is not currently consulting her general practitioner, nor any specialists or allied health professionals, regarding her conditions. She said that she takes Panadol or Advil for headaches 3 to 4 times per week. She said that her naturopath prescribed some drops to assist in the management of dizziness. She told the Panel that previous treating physiotherapists have prescribed exercises to manage her dizziness but that she rarely performs the exercises as they result in nausea.
She told the Panel there is no current plan for any change in management, nor any procedure or operation, for her current conditions.[6]

[6]ACB57.

The panel then addressed the plaintiff’s employment history, past medical history and its examination findings.[7] The latter was detailed and described in the panel’s reasons as having included targeted examination of the claimant’s neck, left shoulder, neurological system and ear, nose and throat system.[8] The panel also noted the clinical findings stated in various imaging reports and an audiology report.[9]
[7]Ibid 57-58.
[8]Ibid 58-59.
[9]Ibid 59-60.

The panel thereafter turned to ‘diagnosis’ and noted the report of Dr David Kennedy, prepared following a ‘remote assessment’. In that connection, the panel noted Dr Kennedy’s opinion that –

as a consequence of the traumatic head injury Ms Troeth has developed significant vertigo, as well as tension headaches, and has problems with her short term memory, as well as focusing and concentrating on tasks. At time she is very vague, forgetful and fatigues quite easily.[10]

[10]Ibid 60.

The panel also noted the first defendant’s criticisms of Dr Kennedy’s report, particularly that it did not appear that Dr Kennedy had undertaken the tests required by the relevant section of the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (‘the AMA Guides’).[11]
[11]Ibid 60.

Immediately thereafter, the panel stated –

The Panel took account of the claimant’s history regarding symptoms and management undertaken, the information contained within the Referral material, diagnostic imaging reported, and the Panel’s findings on examination of the claimant on 22 March and 2 June 2021.
The Panel considered the claimant’s reported dizziness, nausea, “spinning sensation”, and difficulties with balance. Following its findings on physical examination, and review of the information in the referral, with documented improvements after initial injury, the Panel considers there was no evidence of persisting central vestibular pathology. Reported disequilibrium was assessed by formal ENT examination and the Panel considered that there was no evidence for peripheral vestibular injury. The history provided to the Panel about loss of consciousness when she becomes dizzy particularly when going from lying to standing is not present in the prior medical records and has not been investigated.
The Panel further noted and considered the claimant’s reports that she has reduced memory and that at times she cannot think clearly, which, in the Panel’s opinion, does not correlate with its examination findings including excellent history delivered for both remote and recent events during its assessment of the claimant on 22 March 2021.
The Panel, for the reasons outlined, considered the claimant’s current symptoms and examination findings indicate impairment in the domains of mental status and integrative functioning and equilibrium. The Panel therefore concluded that the claimant is suffering a mild disturbance of mental status and integrative functioning and a mild disturbance of equilibrium following a moderate to severe traumatic brain injury.[12]
[Emphasis added]

[12]ACB60-61.

As to its assessment of impairment, the panel stated, relevantly –

The Panel assessed the claimant’s neurological injury in accordance with the instructions detailed in Chapter Four of the Guides and determined that the injury was most appropriately assessed pursuant to Section 4.1b and Section 4.2b.
The Panel assessed disturbance of mental status and integrative functioning in accordance with Section 4.1b of Chapter Four.
The Panel noted the text on page 4/146 of the Guides which state ‘Impairment of equilibrium and balance (Table 11, below) assumes significance, if the patient undertakes daily activities such as bicycle riding or working in high places or other hazardous locations’.
The Panel assessed impairment arising from disturbance of equilibrium in accordance with Section 4.2b of Chapter Four.
The Panel noted the instructions on page 4/140 of the Guides which state ‘A patient may have more than one of the types of cerebral dysfunction listed above. The most severe of the first five categories shown above should be used to represent this original impairment. Any impairments in the last four categories may be combined with the most severe of the first five by means of the Combined Values Chart (p.322); the result would represent the estimate of total cerebral impairment’.
The Panel therefore combined the respective Chapter Four whole person impairments in accordance with the Combined Values Chart at page 322 of the Guides to obtain a total cerebral impairment.
…
The Panel combined the whole person impairments attributable to all of the physical injuries to the claimant alleged in the claim by means of the Combined Values Chart on page 322 of the Guides.
The Panel concluded that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim is permanent but is not more than 5% and therefore does not satisfy the threshold level prescribed by Section 28LB of the Act as amended.[13]
[13]ACB62-63.

C The present proceeding

By further amended originating motion dated 17 June 2022, the plaintiff claims the following jurisdictional errors and/or errors made on the face of the record[14] –
[14]Ibid 76-80.
a.The Panel failed to apply or properly apply the AMA Guides, and/or misapplied or misconstrued the applicable AMA Guides when determining the plaintiff’s whole person impairment
b.The Panel utilised an incorrect interpretation and/or failed to properly apply or interpret the following aspect of the Guides:
i.Page 4/146 of the Guides and the text therein/instructions provided
ii.        Section 4.1b of Chapter 4 and/or Table 2
iii.       Section 4.2b of Chapter 4 and/or Table 11
iv.       Page 4/140 of the Guides and the instructions
c.The Panel failed to combine properly or at all the respective Chapter Four whole person impairments in accordance with the Combined Value Charts at page 322 to obtain total cerebral impairment
d.The Panel failed to combine the whole person impairment attributable to all of the physical injuries to the claimant alleged in the claim by means of the Combined Values Chart on page 322 of the Guides.
e.The Panel has failed to engage in an active intellectual process with the methodology when applying its clinical judgment to the Guides
f.Alternatively, the Panel has acted unreasonably when applying the above sections and/or text of the Guides which has resulted in error and/or has resulted in a capricious outcome.
g.The Panel applied the Guides in a manner that is not evident and/or intelligible.
6.These errors materially affected the opinion.
ADDED GROUNDS
7.The Medical Panel has made the following errors of law and/or jurisdictional errors.
Mental status and integrative functioning
8.In assessing the degree of impairment of the plaintiff’s mental status under section 4.1b of the Guides the Medical Panel was required by the Guides to make a diagnosis of the existence of her impairment of mental status and integrative functioning, and a finding as to the effect of the impairment applying Table 2 of the Guides (on page 4/142), in particular those with respect to the plaintiff’s performance of the activities of daily living.
9.The Medical Panel found that the plaintiff had an impairment of mental status and integrative functioning, but did not
a)make a finding as to the effect of the plaintiff’s impairment in the respects stated in Table 2 of the Guides (on page 4/142), in particular those with respect to the plaintiff’s performance of the activities of daily living;
b)give the consideration required by law as to the effect of the plaintiff’s impairment in the respects stated in Table 2 of the Guides (on page 4/142), in particular those with respect to the plaintiff’s performance of the activities of daily living;
10.The material in the Reasons does not provide probative evidence from which the Medical Panel could reasonably have decided that the plaintiff had the ability to perform satisfactorily most activities of daily living or what was the degree of any inability;
11.There was no evidence from which the Medical Panel could reasonably have decided that the plaintiff had the ability to perform satisfactorily most activities of daily living or what was the degree of any such inability;
12.Further, by reason of the above matters, it is to be inferred that the Medical Panel misunderstood, and misapplied, section 4.1b and Table 2 of the Guides, and failed to apply them.
Equilibrium
13.In respect of the plaintiff’s impairment of equilibrium, the Medical Panel applied the text on page 4/146 of the Guides which states ‘Impairment of equilibrium and balance (Table 11, below) assumes significance, if the patient undertakes daily activities such as bicycle riding or working in high places or other hazardous locations’.”
14.This part of the Guides is of no relevance to an assessment of the plaintiff’s impairment of equilibrium, as
a)The Guides required that an assessment be made under Table 11, on page 4/146 of the Guides. The cited text does not apply to, qualify or limit such an assessment;
b)the citation is a part of a text which refers to vertigo and loss of equilibrium and to their interaction in the assessment of impairment. The Medical Panel did not assess the plaintiff’s vertigo (see later) and in that context there was no interaction or comparison to be made, and thus no application of the citation;
c)the Medical Panel misunderstood the citation as meaning that impairment of equilibrium and balance (Table 11) were only of significance if the plaintiff undertook activities of the type referred to. The citation does not bear that construction;
d)The plaintiff did not undertake activities of the type referred to.
15.Table 11 refers to “daily activities”. The Medical Panel made no reference to this consideration in its Reasons. Paragraphs 8 to 10 above are repeated here with respect to daily activities.
16.On a fair reading of its Reasons, the Medical Panel has made no allowance for the plaintiff’s undoubted loss of equilibrium, which it was required to assess by the American Medical Association Guides, 4^th ed. on pages 4/146 and/or in Section 9.1c on pages 9/228 and 9/229
17.Further, by reason of the above matters, it is to be inferred that the Medical Panel misunderstood, and misapplied, section 4.1b and Table 11 of the Guides, and failed to apply them.
Vertigo
18.In respect of the plaintiff’s claimed vertigo, the Medical Panel did not assess the plaintiff’s impairment resulting from her claimed vertigo as shown by her symptoms of vertigo, as required by the American Medical Association Guides, 4^th ed. on pages 4/146 and in Section 9.1c on pages 9/228 and 9/229
19.The Medical Panel wrongly did not assess the plaintiff’s impairment resulting from her claimed vertigo because it considered that that there was no evidence on examination of vestibular pathology or injury. However,
a)pages 9/228 and 9/229 of the Guides (relating to vertigo and consequent lack of equilibrium) identify and assess its existence for the purposes of the Guides on the basis of symptoms of vertigo, and not on the basis of physical examination, or anatomical results;
b)the plaintiff’s symptoms of vertigo are evidence of vertigo, and accordingly the plaintiff’s vertigo should have been assessed under pages 9/228 and 9/229 of the Guides.
20.In not doing so the Medical Panel thereby misunderstood, and misapplied, section 4.1b and Table 2 and pages 9/228 and 9/229 of the Guides, and failed to apply them.
Vertigo and/or Equilibrium
21.The effect of the Medical Panel’s reasoning is that it made no allowance for the plaintiff’s undoubted impairment of equilibrium. This left unassessed the plaintiff’s undoubted and significant impairment of equilibrium, which was required to be assessed under the Referral but was not.
Loss of consciousness
22.The plaintiff told the Medical Panel of occasions when she had loss of consciousness when she became dizzy particularly when going from lying to standing. The Medical Panel excluded the plaintiff’s complaints of loss of consciousness when she became dizzy particularly when going from lying to standing. from its consideration on the stated ground that “it is not present in the prior medical records and has not been investigated.”
23.In this regard the Medical Panel
a)made a material error, as there was such a history in the prior medical records, namely the clinical records of the Bayside Medical Clinic for 10/7/2019, 13/5/2020 and 5/8/2020;
b)failed to take into account a material matter;
c)failed to take into account relevant material provided by the plaintiff, contrary to the requirements of the provisions of the American Medical Association Guides, 4^th ed. and thus made an error of law or a jurisdictional error.

The plaintiff’s written outline of submissions advanced complaints of error directed to the panel’s assessments concerning[15] –
[15]ACB64-73.

(a) mental status and integrative functioning;

(b) equilibrium;

(c) vertigo;

(d) vertigo and/or equilibrium; and

(e) loss of consciousness.

The written outline of submissions of the first defendant addressed each of the plaintiff’s contentions and submitted that there was no error.[16]
[16]ACB83-93.

By email sent on the evening prior to the hearing, senior counsel for the plaintiff advised that certain arguments and paragraphs in the written submissions would not be pressed[17] and that the two arguments to be advanced on behalf of the plaintiff would, in substance, be –

(a) ‘evident unreasonableness’ in the application by the panel of Tables 2 and 11 of chapter four of the AMA Guides; and

(b) that a sentence in the panel’s reasons (highlighted at [18] above) ‘constitutes an error in a material fact’; alternatively that the failure of the panel to obtain the records of the Bayside Family Clinic ‘constitutes unreasonableness’.[18]

[17]Specifically, paragraphs [21]-[30]. Arguments within some of the other paragraphs were either not pressed or re-formulated. I should note that senior counsel briefed for the plaintiff at the hearing was different to senior counsel that had earlier prepared the written outline of submissions.

[18]In connection with the alternative submission, the email referred to Edwards v State of Victoria [2021] VSC 423.

The records of the Bayside Family Clinic – comprising clinical notes and various other medical records – had not been in the material placed before the panel.[19] Those records were in the court book relating to the present application.[20]
[19]See, ACB978-979.
[20]Ibid 901-977.

The next morning, senior counsel for the defendant responded to the email of the previous evening and attached an authority.[21]
[21]CD v Central Gippsland Health Service [2022] VSC 462.

At the hearing, senior counsel for the first defendant resisted what she described as ‘the wholesale change to the way the plaintiff puts her case’.[22] Senior counsel submitted that ‘the new grounds’ should not be allowed.[23] No adjournment was sought.[24] The re-formulation of the plaintiff’s arguments was allowed.
[22]Transcript (‘T’) 2.
[23]T9.
[24]T20.

Senior counsel for the plaintiff submitted that –

(a) the ‘outcome achieved by the Medical Panel was odd’;[25]
[25]T11.

(b) the reference by the panel to the content of the ‘prior medical records’ is ‘strictly wrong’ and also ‘unreasonable’ in that ‘what the panel … is saying, is she’s never complained about this before to her GP or anyone else’;[26]
[26]T13-14.

(c) the solicitors for the first defendant had asked the panel to obtain the records of the Bayside Family Clinic – as a consequence of which the panel must have been ‘well aware’ that there were ‘records of a primary GP’;[27]
[27]T13. In this connection, senior counsel handed up an email from the solicitors for the first defendant to the panel dated 25 January 2021. Senior counsel also referred to correspondence with the GP appearing in the records of Alfred Health, which the panel did have: T14-15.

(d) the panel had referred to the plaintiff’s description of her self-care and other activities (extracted at [13] above) and not commented that it did not accept that account;[28]
[28]T17-18.

(e) in light of the panel’s assessment pertaining to the plaintiff’s left shoulder, the panel’s assessment of the presently relevant impairment must have been ‘4 per cent or less’;[29]

(f) in that regard, table 2 of chapter four of the AMA Guides provides a range of 1 to 14 per cent in respect of a criterion described as ‘impairment exists but ability remains to perform satisfactorily most activities of daily living’;[30] and

(g) the implicit decision of the panel to assess that impairment at ‘4 per cent and no more, even 5 per cent’ must be ‘simply plainly wrong’ in the sense of ‘legally unreasonable’.[31]

[29]T18.

[30]T19. In this connection, senior counsel for the plaintiff also referred to the inclusive description of ‘activities of daily living’ appearing at section 1.1 of the AMA Guides.

[31]T19.

In response, senior counsel for the first defendant submitted that –

(a) the plaintiff’s solicitor had the records of the Bayside Family Clinic and had ‘decided to send or not send’ them to the panel;[32]
[32]T21.

(b) the solicitor’s letter to which senior counsel for the plaintiff had referred must be considered in a wider context;[33]
[33]T23. In connection with which senior counsel for the first defendant handed up a bundle of emails and other correspondence.

(c) there was doubt as to whether that letter had been before the panel;[34]
[34]T23-26.

(d) the Court of Appeal considered error of material fact in Chang v Neill (‘Chang’);[35]
[35]T26-28. Cf., (2019) 62 VR 174 (‘Chang’).

(e) particular records of the Bayside Family Clinic were not material;[36]
[36]T28-33.

(f) the law in respect of failure to enquire involving a medical panel constituted under the Wrongs Act1958 (Vic) (‘the Wrongs Act’) is unsettled;[37]
[37]T34-44. Senior counsel for the first defendant referred, in particular, to various provisions of the Wrongs Act, CD v Central Gippsland Health Service [2022] VSC 462, Schmael v Leach [2020] VSC 562, Chang (n 35), Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 and Edwards v State of Victoria [2021] VSC 423.

(g) there was presently no failure by the panel to make an obvious enquiry about a critical fact;[38]

(h) the law in respect of legal unreasonableness is also unsettled;[39] and

(i) assessment of the degree of the plaintiff’s impairment in connection with the relevant criterion stated in table 2 in chapter four of the AMA Guides was a matter for the panel in the exercise of its expertise and there was ‘ample evidence’ as to why the panel had found the plaintiff to fall ‘within the range that it evidently found she fell’.[40]

[38]T44-46.

[39]T46-51. In that connection, senior counsel for the first defendant referred to Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 and Sidiqi v Kotsios [2021] VSCA 187.

[40]T51-55. Senior counsel for the first defendant referred to H J Heinz Company Australia Ltd v Kotzmann [2009] VSC 311, Latchford v Gibbons [2021] VSC 229 and Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.

Senior counsel for the plaintiff confirmed that his arguments did not require that reference be made to table 11 of chapter four of the AMA Guides.[41]
[41]T56. In that connection, the email the previous evening had essentially abandoned the paragraphs in the plaintiff’s written outline of submissions directed to table 11 of chapter four of the AMA Guides.

In reply, senior counsel for the plaintiff –

(a) confirmed, in respect of unreasonableness, that –

we have conceded very frankly that it is a high bar, that you’re not entitled to engage in merits review and that the Panel is entitled to apply its expertise.[42]
[42]T59.

(b) submitted that the relevant criterion in table 2 of chapter four of the AMA Guides contemplates that the plaintiff would be able to do ‘most things’;[43]

(c) submitted that the panel’s statement concerning the content of the medical records had come ‘out of the blue’;[44] and

(d) submitted that, in that regard, ‘the Panel really was concluding that she hadn’t complained to anyone about dizziness and falls, plainly she had’.[45]

[43]T60.

[44]T60.

[45]T61.

The second and third defendants constituted the convenor and members of the panel, who had earlier advised that they would abide the result.

E Argument 1: ‘unreasonable’ in respect of the relevant criterion in table 2

The heart of the plaintiff’s argument involved contrasting the plaintiff’s account of her activities (extracted at [13] above) with the following criterion appearing in table 2 of chapter four of the AMA Guides[46] –

Impairment exists, but ability remains to perform satisfactorily most activities of daily living.

[46]The final sentence of section 4.1b of chapter four of the AMA Guides identifies table 2 as showing ‘the criteria for evaluating mental status’.

The implicit conclusion of the panel that the plaintiff fell within that criterion was said to be ‘simply unreasonable on the face of it’.[47]
[47]T18-20.

It will be evident that the submissions of senior counsel for the plaintiff fastened upon the plaintiff’s account of her activities. However, the question for the panel was its evaluation of the relevant ‘impairment’ together with the relevant ‘ability’ of the plaintiff in respect of ‘most activities of daily living’.

In the present instance, the relevant ‘impairment’ was disturbance of mental status and integrative functioning.

Section 4.1b of chapter four of the AMA Guides describes deficits of that kind as including ‘the general effects of organic brain syndrome, dementia and some specific, focal, neurologic deficiencies’ and refers to particular tests and other matters relevant to the necessary assessment.

The results of such testing are referred to in the panel’s reasons and the plaintiff appears to have completed those tests satisfactorily. In that connection, in respect of ‘mental state’, the panel observed that the plaintiff had ‘minimal impairment’.[48]
[48]ACB58-59.

That said, the panel noted the plaintiff’s history of ‘misjudgements with accommodation’ and that at ‘times she cannot think clearly’.[49]
[49]ACB59.

In the circumstances, those aspects of history must have contributed to the panel’s conclusion that the plaintiff was suffering from a ‘mild disturbance of mental status and integrative functioning’.[50]
[50]Ibid 61.

That was, however, not the only impairment found by the panel; as it found ‘a mild disturbance of equilibrium’, which it assessed separately and by reference to section 4.2b of chapter four of the AMA Guides.[51]
[51]Ibid 61-62.

In that sense, several of the restrictions referred to in the plaintiff’s account of her activities (particularly those relating to ‘symptoms of dizziness’) are likely to have fallen for assessment in connection with disturbance of equilibrium, rather than disturbance of mental status and integrative functioning.[52]
[52]Ibid 62.

It follows that whatever might be said to be the status of the plaintiff’s account of her activities in the assessment required to be performed in connection with section 4.1b of chapter four of the AMA Guides, –

(a) it is not at all clear that all aspects of that account were relevant to that assessment; and

(b) the relevant parts of that account must have been accepted by the panel because the examination findings suggested no more than a ‘minimal’ impairment of mental state and the panel in fact found an impairment comprising ‘mild’ disturbance of mental status and integrative functioning.

Further, the question before the panel was not said by it to fall for determination only by reference to the plaintiff’s account of her activities. The question was one of ‘ability’, which is suggestive of an assessment of capacity whether such capacity or ability is presently being exercised or not.

In that regard, the necessary assessment likely depended upon the evaluation of a range of features. In that connection, the reasons of the panel refer to matters such as –

(a) the medical records that had recorded that the plaintiff was ‘independent’ in activities of daily living;[53]
[53]ACB55-56.

(b) the limited degree of treatment that the plaintiff was undergoing together with no plan for any change in management;[54]

(c) the fact that the plaintiff’s claims of reduced memory and inability to think clearly did not correlate with the panel’s examination findings;[55] and

(d) its assessment that the plaintiff was suffering only ‘mild’ disturbance of mental status and integrative function (as well as ‘mild’ disturbance of equilibrium).[56]

[54]Ibid 57.

[55]Ibid 61.

[56]Ibid.

In that sense, the plaintiff’s account of her activities was one thing, but that did not compel any particular conclusion in respect of the assessment of the relevant ‘impairment’ or any associated ‘ability’ falling for consideration under section 4.1b of chapter four of the AMA Guides.

In the circumstances, whether the question is approached as one of construction of the relevant ‘criterion’ in table 2 together with a consideration of the various relevant aspects of the reasons of the panel to which I have referred or, as advanced by the plaintiff in argument, ‘unreasonableness’, I could not conclude that the relevant assessment of the panel was erroneous[57] or otherwise irrational, illogical or unreasonable.[58]
[57]Cf., Maimonis v Bourke & Ors [2019] VSCA 302, [51](2).
[58]Sidiqi v Kotsios [2021] VSCA 187, [56]-[60].

The first argument must be rejected.

E Argument 2: error of material fact/failure to enquire

As I have earlier noted, both aspects of the present argument were directed to the following sentence appearing in the reasons of the panel relating to ‘diagnosis’ –

The history provided to the Panel about loss of consciousness when she becomes dizzy particularly when going from lying to standing is not present in the prior medical records and has not been investigated.

That sentence was submitted to be erroneous because the records of the Bayview Family Clinic were said to include reference to incidents of ‘dizziness’.[59]
[59]T7.

As I have earlier noted, senior counsel for the plaintiff submitted that the panel was ‘saying … [that] she’s never complained about this before to her GP or anyone else’[60] and ‘that she hadn’t complained to anyone about dizziness and falls, plainly she had’.[61]
[60]T14.
[61]T61.

I have noted that the records of the Bayview Family Clinic were not placed before the panel. Each party sought to blame the other. In my view, nothing presently turns upon who is to blame.

The panel had been provided with 803 pages of records from Alfred Health that contained various reports and the results of many investigations.[62] The panel said that it formed its opinion with regard to that material.[63]
[62]ACB98-900.
[63]Ibid 53.

Further, the documents referred to in the reasons of the panel relating to the plaintiff’s ‘clinical course’ and ‘investigations’ plainly came from the collection of records sourced from Alfred Health.[64]
[64]Ibid 54-56 and 59.

In that context, the only natural reading of the panel’s statement concerning what was ‘present’ in the ‘prior medical records’ and ‘not investigated’, is that there were no such records or investigations in the very extensive collection of material sourced from Alfred Health.

In light of the above, I do not accept that when saying that the stated history was not present in the ‘prior medical records’, the panel was purporting to speak to the content of records that it did not have and that neither party had provided to it.

Nor, in my view, was the panel was saying that the plaintiff had never complained ‘to her GP or anyone else’. Having not been provided with the records of any general practitioner, nor any other such treater, the panel was in no position to make such a statement and, in my view, did not purport to do so.[65]
[65]In addition, of course, the panel could not have been saying that the plaintiff had not complained to ‘anyone’ concerning dizziness – the panel recorded the plaintiff’s account of having consulted her naturopath and ‘previous physiotherapists’ in respect of that complaint: CB57.

It was not suggested that, understood in the manner which I have described, there was any error in the sentence to which the present complaint was directed.

The plaintiff’s alternative – and real – contention was that the panel had erred in failing to obtain the records of the Bayview Family Clinic.

In that regard, the plaintiff relied upon a recent case in which a panel had been found to have erred in making a decision without attempting to obtain information that was obviously readily available and centrally relevant to the decision required to be made.[66]
[66]Edwards v State of Victoria [2021] VSC 423, [71]-[75].

As I have earlier noted, senior counsel for the first defendant sought to emphasise that the law relating to any such an obligation is unsettled in respect of a panel constituted under the relevant provisions of the Wrongs Act.

It is unnecessary for me to determine that issue; for present purposes I am prepared to assume, without deciding, that it could have been an error for the present panel to fail to make an obvious enquiry concerning a critical fact. Senior counsel for the first defendant posited that as the essential nature of any such obligation, if it applied, and senior counsel for the plaintiff did not take issue with that formulation.

That said, the cases concerning any such obligation have looked to the relevant circumstances. For example, in Chang,[67] the Court of Appeal considered –
[67]Chang (n 35).

(a) whether there was anything in the documents submitted to the panel or any information provided by the applicant that alerted the panel to the possibility that there could be a need to enquire in respect to the particular fact;[68]
[68]Chang (n 35), [56].

(b) in particular, whether the circumstances gave rise to an ‘obvious need’ for the panel to seek clarification;[69]

(c) whether the fact was ‘critical’ or ‘merely one of a myriad of potentially relevant facts’;[70] and

(d) whether the fact could have led to a different answer to the relevant medical question.[71]

[69]Ibid [57].

[70]Ibid [58].

[71]Ibid.

In Chang, it was not sufficient that the fact concerned might have been in some way relevant and would have been ‘resolved easily’ by the panel seeking clarification.[72]
[72]Ibid [57]-[58].

In the present instance, the alleged obligation of the panel is said to arise in connection with the sentence in the panel’s reasons to which I have earlier referred. It will be evident that the sentence is derived from an aspect of the history given by the plaintiff to the panel.

The reasons of the panel do not suggest that the plaintiff had any difficulty in providing that or any other aspect of her history. Indeed, the reasons of the panel record that she was accompanied by her son ‘who provided occasional clarifying or corroborating information’.[73]
[73]ACB54.

In any event, the sentence to which I have referred must have been in part derived from the following earlier observations of the panel –

The claimant told the Panel that her symptoms include dizziness and difficulties with her balance. She said that; she tends to become dizzy if she looks up; the dizziness lasts some seconds; and the dizziness is occasionally associated with nausea and that she had vomited on one occasion. She said that not infrequently she experiences a “spinning sensation”, which lasts for less than one minute. She said she has experienced four occasions where, as she had moved from bending to standing, she has suffered loss of consciousness and fallen to the ground. She said that she is not conscious prior to hitting the ground. She told the Panel that subsequent to these episodes she is temporarily unconscious for a duration of seconds to several minutes. She said that since the incident she “furniture walks” when at home and uses a walking stick in her right hand when she leaves the house.[74]

[Emphases added]

[74]ACB56.

In that connection –

(a) I note that it is not now said that either the sentence or the history from which the sentence must have been partly derived were stated in error;

(b) I also note that the stated history does not record the plaintiff as having said that she had obtained any treatment from her general practitioner in connection with any of the symptoms or episodes to which she referred; and

(c) I do not accept that the panel’s consideration of the plaintiff’s dizziness and episodes of loss of consciousness came ‘out of the blue’ – it was prompted by the plaintiff’s own history to the panel.[75]

[75]The report of Dr Kennedy, on which the plaintiff relied, and to which the panel referred, also mentioned ‘significant vertigo’: see, CB15-16 and CB60.

Further, I have earlier extracted the plaintiff’s account of her ‘current management’ (see [14] above). In that regard, it is evident that the plaintiff told the panel that –

(a) she was ‘not currently consulting her general practitioner’ regarding her ‘conditions’, nor was she consulting ‘any specialists or allied health professionals’;

(b) her naturopath had ‘prescribed some drops’ to assist in managing her dizziness; and

(c) previous physiotherapists had prescribed exercises to manage her dizziness, but she rarely performs them ‘as they result in nausea’.

It was not presently said that the panel had any obligation to obtain records from either the naturopath or the physiotherapists.

I have earlier noted that senior counsel for the plaintiff relied upon a letter to the panel from the solicitors for the first defendant which had suggested that the records of ‘Bayside Family Medical’, Alfred Hospital, Caulfield Rehabilitation Hospital and Kingston Rehabilitation Centre be obtained.

Senior counsel for the plaintiff submitted that the consequence of the letter was that the panel was ‘well aware that there were records of a primary GP’.[76] However –
[76]T13.

(a) the letter referred to more than one source of records;

(b) a significant part of the suggestion that the panel obtain such records seems to have related to the question of impairments from unrelated injuries or causes;

(c) the letter was copied to the plaintiff’s solicitor, who evidently had the records of the Bayside Family Clinic, but did not provide them to the panel;

(d) the panel obtained the very significant body of records from Alfred Health; and

(e) as I have noted, when the plaintiff attended the panel for examination she mentioned dizziness and four episodes of loss of consciousness but did not relevantly mention her general practitioner and, in fact, told the panel that she was not currently consulting her general practitioner.

In the circumstances, I do not accept that the panel should have been alert to any potential need to obtain the records of the plaintiff’s general practitioner.

I am also mindful of the significance of the sentence in the overall relevant reasoning of the panel.

In that regard, the sentence appears within the panel’s reasoning directed to ‘diagnosis’.

Prior to that point, the panel had addressed the plaintiff’s ‘current symptoms and function’, which, as I have noted, included the plaintiff’s account of dizziness and four occasions of loss of consciousness.

Thereafter, the panel recorded its ‘targeted examination’ findings. It is not evident that any of those findings were taken by the panel to signify that the plaintiff might have been prone to experiencing episodes of dizziness or loss of consciousness.

When it then came to address ‘diagnosis’, the panel noted the report of Dr Kennedy together with the first defendant’s criticisms of that report and stated –

The Panel took account of the claimant’s history regarding symptoms and management undertaken, the information contained within the Referral material, diagnostic imaging reported, and the Panel’s findings on examination of the claimant on 22 March and 2 June 2021.
The Panel considered the claimant’s reported dizziness, nausea, “spinning sensation”, and difficulties with balance. Following its findings on physical examination, and review of the information in the referral, with documented improvements after initial injury, the Panel considers there was no evidence of persisting central vestibular pathology. Reported disequilibrium was assessed by formal ENT examination and the Panel considered that there was no evidence for peripheral vestibular injury. The history provided to the Panel about loss of consciousness when she becomes dizzy particularly when going from lying to standing is not present in the prior medical records and has not been investigated.
The Panel further noted and considered the claimant’s reports that she has reduced memory and that at times she cannot think clearly, which, in the Panel’s opinion, does not correlate with its examination findings including excellent history delivered for both remote and recent events during its assessment of the claimant on 22 March 2021.
The Panel, for the reasons outlined, considered the claimant’s current symptoms and examination findings indicate impairment in the domains of mental status and integrative functioning and equilibrium. The Panel therefore concluded that the claimant is suffering a mild disturbance of mental status and integrative functioning and a mild disturbance of equilibrium following a moderate to severe traumatic brain injury.[77]
[Emphases added]

[77]ACB60-61.

In light of the above, it will be evident that –

(a) the panel took account of the plaintiff’s history of symptoms – including dizziness;

(b) the panel’s physical examination had not revealed evidence of any relevant pathology;

(c) the panel noted that the plaintiff’s history of dizziness leading to loss of consciousness was not evident in the body of medical records before the panel and had not been investigated;

(d) nonetheless, those symptoms indicate impairment in the domain of equilibrium (as the examination findings relating to equilibrium were not said to reveal anything relevant); and

(e) the panel consequently concluded that the plaintiff is suffering from a ‘mild disturbance of equilibrium’.

In other words, contrary to the general tone of the submissions advanced on behalf of the plaintiff, the panel did not disbelieve the plaintiff’s account of dizziness and episodes of loss of consciousness. Those symptoms were the evident foundation for the panel’s finding that the plaintiff had an impairment in the nature of a ‘mild disturbance of equilibrium’.

It follows that –

(a) the plaintiff’s account must have been accepted; and

(b) accordingly, there could have been no ‘obvious need’ for the panel to seek clarification in respect of it.

In context, the panel’s point in respect of the absence of that account from the extensive body of records obtained from Alfred Health was not that the account was to be disbelieved, but that the absence of that account in those records spoke to the degree or extent of the problem. In a sense, that was unsurprising, as the plaintiff had told the panel that the problem had been managed by a naturopath and ‘previous physiotherapists’.

I also could not conclude that the three clinical notes evidently sought to be relied upon by the plaintiff[78] were ‘critical’ nor in any way decisive –
[78]In that regard, plaintiff’s written outline of submissions had referred to the clinical notes relating to consultations on 10 July 2019, 13 May 2020 and 5 August 2020: see, CB68, [21]. The particular clinical notes are at CB901-903. Nonetheless, the email to which reference has earlier been made identified that the plaintiff’s written outline of submissions at [21] was among those paragraphs that were ‘not pressed’.

(a) the note concerning a consultation on 10 July 2019 relevantly records ‘had fall’ and ‘was bending up and down and fell but cannot remember hitting floor’;[79]

(b) the note concerning a consultation on 13 May 2020 relevantly records ‘had two falls’, ‘confusing story sounds vertigo’ and ‘one ? had LOC after hitting her head’;[80] and

(c) the note concerning a consultation on 5 August 2020 simply records, relevantly, ‘more dizziness’ and ‘had a fall down steps’.[81]

[79]ACB903. I should note that senior counsel for the defendant also went to the note relating to a consultation on 9 October 2019, which records, relevantly, ‘still light headed when bends down’. That note was not referred to in the submissions of the plaintiff.

[80]ACB901.

[81]Ibid.

Only the first of those notes appears to relate to any incident of dizziness leading to loss of consciousness. In that sense, the three notes may well have raised more questions for the panel than they might be said to answer. At best, as in Chang, the notes might be said to be capable of having constituted no more than further evidence among ‘a myriad of potentially relevant facts’.

In any event, as I have indicated, the panel evidently accepted and acted upon the plaintiff’s account of dizziness and four occasions of loss of consciousness without having to be taken to any such notes.

For those reasons, I could not conclude that obtaining the notes of the Bayside Family Clinic could have led the panel to any different answer to the medical question.

In short, unlike the cases in which any such obligation has been found to have been breached, in the present instance –

(a) the circumstances could not reasonably be said to have alerted the panel to the possibility that there could be a need to further enquire in respect of the plaintiff’s account of dizziness and associated episodes of loss of consciousness;

(b) in particular, there was nothing about the circumstances that suggested that any such enquiry should be made of the plaintiff’s general practitioner;

(c) further, the panel accepted the plaintiff’s account of dizziness and associated episodes of loss of consciousness;

(d) it follows that there was no ‘obvious need’ for the panel to seek clarification;

(e) even if the records of the Bayside Family Clinic had been obtained, it is not clear that the notes to which reference was made could have been viewed as ‘critical’ or as any more than among ‘a myriad of potentially relevant facts’; and

(f) in the circumstances, it is not possible to conclude that obtaining the notes could have led the panel to any different answer to the medical question.

It follows that even if an obligation of the present kind might be capable of arising in respect of a panel constituted under the Wrongs Act, the contention that the present panel erred by failing to enquire and obtain the records of the Bayside Family Clinic must be rejected.

Argument 2 must be rejected.

F Conclusion

The proceeding must be dismissed.

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CD v Central Gippsland Health Service [2022] VSC 462

Maimonis v Bourke [2019] VSCA 302

Sidiqi v Kotsios [2021] VSCA 187

[2022] VSC 767

15 December 2022