Vision Precast Pty Ltd v Ferguson

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03198

VISION PRECAST PTY LTD & ANOR (according to the attached Schedule)	Plaintiffs
v
RYAN ANTHONY GEORGE FERGUSON & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2021
DATE OF JUDGMENT:	8 December 2021
CASE MAY BE CITED AS:	Vision Precast Pty Ltd & Ors v Ferguson & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 808

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ADMINISTRATIVE LAW – Application by the plaintiffs seeking to quash the determination of a medical panel (“Panel”) in relation to its assessment of a claimant’s degree of psychological or psychiatric impairment – Whether the medical panel failed to properly disregard pre-existing and/or unrelated impairment pursuant to s 28LL(3) of the Wrongs Act 1958 (Vic) – City of Melbourne v Neppessen & Ors [2019] VSC 84, referred to – Whether the Panel erred in finding that there is impairment secondary to a physical injury that should be disregarded pursuant to s 28LJ of the Wrongs Act 1958 (Vic) – Whether the Panel should have assessed whether there was no impairment from unrelated causes pursuant to s 28LL(3) of the Wrongs Act 1958 (Vic) - Statutory interpretation – Meaning of the phrase ‘secondary to a physical injury’ – Principles governing the ‘reading in’ of words into a statute – Director of Public Prosecutions v Leys (2012) 44 VR 1, referred to – Whether the Panel’s decision that there was no impairment from unrelated causes was legally unreasonable or lacked an evident and intelligible justification – Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, referred to – Whether any error on the part of the Panel materially affected the Panel’s decision – Sidiqi v Kotsios [2021] VSCA 187, referred to – Chang v Neill (2019) 62 VR 174, referred to – Admissibility of clinical records not before the Panel – Relevant to claim of legal unreasonableness – Mackenzie v Head, Transport for Victoria [2021] VSCA 100 referred to - Allegation of a denial of procedural fairness – No denial of procedural fairness - Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Mr G A Worth	Colin Biggers & Paisley
For the Second Plaintiff	Mr G A Worth	Sparke Helmore
For the First Defendant	Ms F C Spencer	National Compensation Lawyers
No appearance for the Second to Fourth Defendants

HER HONOUR:

Introduction and background

The plaintiffs in this proceeding are Vision Precast Pty Ltd, the occupier of industrial premises in Brooklyn (‘premises’), and DRW Investments Pty Ltd, the owner of a transport company. The plaintiffs seek to challenge an opinion of a medical panel (‘Panel’) regarding the Panel’s assessment of the psychological and/or psychiatric impairment of the first defendant. The first defendant, Mr Ryan Ferguson (‘claimant’) was at the relevant time a man of 26 who was the owner of a small but flourishing business providing labour to concrete panel fabricators, including the first plaintiff.[1]
[1]The second to fourth defendants are members of the Panel and the Convenor of Medical Panels (‘Convenor’), and have informed the Court that they do not wish to take an active part in this proceeding.

My reference to “the relevant time” is in fact a reference to a single shocking incident on 31 March 2016 (‘incident’). On that day, the claimant and two of his employees were engaged by the first plaintiff to work at the premises. When the claimant and his employee Michael (who was also a personal friend of the claimant) were inspecting a seven tonne concrete panel which had been loaded and secured by the second plaintiff to its truck, the chain holding the panel snapped and the panel fell from the truck, trapping the claimant and Michael. At least on the day, the claimant was lucky, escaping with relatively minor injuries to his leg, which healed reasonably quickly. Michael was not so fortunate: he eventually lost one of his legs below the knee.

However, while the claimant’s physical injuries healed promptly and well, he has been psychologically scarred by the incident, and, save for a brief attempt to return to work in 2016, he has lost his business, and has not worked since. A number of treating and medico‑legal doctors and other health practitioners have diagnosed him with post‑traumatic stress disorder and a major depressive disorder arising from the incident. Opinions regarding his prognosis over time have ranged from cautiously optimistic to poor. Prior to the incident, the claimant, while having had a difficult childhood and a truncated secondary school education, described himself as someone who had always been “strong headed and thrived on stress and was successful and driven and motivated and active and worked long hours and enjoyed doing so”.[2]
[2] Medical panel reasons dated 26 September 2019, 9 (‘first reasons’).

Between 2016 and 2018 the claimant received weekly compensation payments, although at a far lower level than his previous earnings from his business, which he reports at having ranged between $5,000 and $10,000 per week. Since 2018, he has been largely dependent upon government benefits.

On 27 March 2019, the claimant issued a generally endorsed writ in the Personal Injuries List of this Court, claiming damages for negligence and/or breach of statutory duty against the plaintiffs (‘common law proceeding’). The common law proceeding is defended by the plaintiffs on the basis that, among other things, any injury suffered by the claimant was caused in whole or in part by his own negligence prior to and during the incident. The plaintiffs have each filed notices of contribution directed at the other. The trial is scheduled to commence in February 2022.

Shortly prior to the issue of the common law proceeding, Dr David Weissman, a consultant psychiatrist, issued a certificate of assessment pursuant to s 28LN of the Wrongs Act 1958 (Vic) (‘Act’). Dr Weissman described the psychiatric injury assessed by him as relevant to the incident as (1) a chronic post-traumatic stress disorder of moderate intensity or severity; and (2) a chronic major depressive disorder with anxious distress and agitation of moderately severe intensity or severity. Dr Weissman certified that he was satisfied that:

[t]he degree of impairment resulting from this person’s psychiatric injury and symptoms (which has not arisen as a consequence of, or secondary to, a physical injury) satisfies the threshold level.

The reference to “the threshold level” (‘threshold’) is a reference to the gateway provisions of the Act, whereby a claimant is precluded from recovering damages at common law for non‑economic loss unless the degree of impairment caused by the injury concerned exceeds the threshold.

The material before me does not reveal whether the plaintiffs dispute the claimant’s diagnosis, or whether, absent consideration of any other possible causes of the claimant’s psychiatric condition, whether the claimant’s level of impairment satisfies the threshold. Rather, the plaintiffs query whether the claimant’s impairment is referable to the psychiatric injury suffered by the claimant as a consequence of the incident, or has been caused or exacerbated by unrelated injuries or issues.

On 13 and 14 June 2019 the plaintiffs referred the following medical question (‘medical question’) to the Convenor:

Does the degree of impairment resulting from the psychiatric or psychological injury to the Claimant alleged in the claim satisfy the threshold level?

The referral to the Convenor arose in the context of the claimant’s claim for damages in the common law proceeding. In his statement of claim, the claimant has pleaded that the psychiatric injury suffered by him as a consequence of the incident (which in turn was said to have occurred as a consequence of the plaintiffs’ negligence) was a significant injury within the meaning of the Act.

Relevant statutory framework

The assessment and determination of whether the claimant has suffered a significant injury is governed by Part VBA of the Act.

Section 28LC(1) of the Act provides that Part VBA of the Act applies to all claims for the recovery of damages for non‑economic loss, subject to certain exceptions which are not relevant to the current case.

Section 28LE of the Act provides that a person is not entitled to recover damages for non‑economic loss unless that person has suffered a significant injury. Section 28LF(2) of the Act provides that:

Restrictions on recovery of damages for non-economic loss
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 threshold level for psychiatric injury is defined in s 28LB of the Act as impairment of 10 per cent or more.

Section 28LJ provides as follows:

Regard not to be had to secondary psychiatric or psychological impairment
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.

Section 28LL of the Act provides as follows:

Assessment in relation to injuries arising out of the same incident
(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.

Section 28LN provides as follows:

Certificate of assessment
(1) Subject to section 28LNA and this section, an approved medical practitioner who makes an assessment of degree of impairment under this Part must provide to the person seeking the assessment a certificate of assessment.
(2)The certificate of assessment must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.
(3)If not all the injuries to a person have stabilised, a certificate of assessment can only be provided under this section in respect of the person if the injuries that have stabilised are sufficient to determine a degree of impairment that satisfies the threshold level.

Section 28LT of the Act provides as follows:

Copy of certificate of assessment to be served on respondent
(1)A claimant must serve on the respondent a copy of a certificate of assessment (if any) obtained under this Part on which the claimant intends to rely.
(2)The copy of the certificate of assessment must be accompanied by the prescribed information (if any) in the prescribed form (if any) unless the information has already been provided to the respondent under section 28LO.
(3)The information prescribed for the purposes of subsection (2) may include information relating to—
(a)       the identity of the claimant;
(b)       the nature of the claim;
(c)       the injury;
(d)      the incident out of which the alleged injury arose;
(e)       any medical practitioner who has treated the injury.

Section 28LZC of the Act provides:

What can a Medical Panel ask a claimant to do?
(1) A Medical Panel may ask a claimant—
(a) to meet with the Panel and answer questions;
(b)to supply to the Panel copies of all documents in the possession of the claimant that relate to the medical question;
(c)to submit to a medical examination by the Panel or by a member of the Panel.

(2)A request under this section must be made within 30 days after the medical question is referred to the Medical Panel.

Section 28LZG of the Act provides:

Determination of Panel
(1)A Medical Panel must not determine the degree of impairment of a person unless it has made an assessment of the degree of impairment in accordance with Division 3.
(2)After making the assessment, the Medical Panel must give the claimant and the respondent—
(a)its determination of the medical question in accordance with subsection (4); or
(b)its certificate, in accordance with subsection (5), that it is unable to determine the medical question but that it is satisfied that the degree of impairment will satisfy the threshold level when the injury has stabilised; or
(c)its certificate that it is unable to determine the medical question and a statement of the time fixed for further assessment of the person under subsection (6).

(3) The Medical Panel must give the determination or certificate—
(a) within 30 days after the last of the following to occur—
(i)the last date on which the claimant complies with a request under section 28LZC;
(ii)the last date on which a registered health practitioner complies with a request under section 28LZE or if a request is made to more than one registered health practitioner, the last date on which the last of the registered health practitioners to comply, complies with the request; or

(b)within such longer period as is agreed by the claimant and the respondent.

(4)If, after making the assessment, the Medical Panel determines the degree of impairment, the determination of the medical question must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.
(5)If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised, but the Medical Panel is satisfied that the degree of impairment resulting from injury will satisfy the threshold level once the injury has stabilised, the Medical Panel may certify in writing to that effect.
(6)If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised and subsection (5) does not apply, the Medical Panel must in writing—
(a)certify that it is unable to determine the medical question; and
(b)fix a time (not being later than 12 months after the first assessment) for a further assessment of the degree of impairment of the person to be made under this section.

(7)The time fixed under subsection (6) must be the earliest time by which the Medical Panel considers that the injury will have stabilised.
(8)More than one further assessment may be made under this section but each further assessment must be made within the period of 12 months following the first assessment.
(9)A determination of the Medical Panel under subsection (4) must be given in writing and be certified by the Medical Panel.
(10)If the Medical Panel gives a certificate under subsection (5) in relation to an injury, the injury is deemed to be significant injury.

The referral to the medical panel

On 13 June 2019, the second plaintiff (followed by the first plaintiff on 14 June 2019) referred the medical question to the Convenor pursuant to s 28LWE of the Act.

The details provided to the plaintiffs of the claimant’s injuries by the claimant’s solicitors on 16 April 2019 in accordance with s 28LO(5) of the Act (‘prescribed information’) and included in the referral materials the following:

•        Anxiety;
•        Severe psychological disturbance;
•        Post-traumatic stress disorder;
•        Depression;
•        Nervousness;
•        Suicidal ideations;
•        Chronic depression;
•        Social withdrawal;
•        Disturbance of libido;
•        Insomnia;
•        Disturbance of memory and concentration;
•        Agoraphobia;
•        Laceration to right leg;
•        Bone bruising to right leg;
•        Scarring.

The particulars above are identical to the particulars of injury in the claimant’s statement of claim, save that the statement of claim omits the injuries in the last three dot points above, that is, the physical injuries said to have been caused by the incident.

The medical panel appointed by the Convenor to consider and opine upon the medical question (‘first panel’) comprised of two psychiatrists. The examination of the claimant by the first panel and the first reasons bear some attention in the current case, given that the Panel referred to the first reasons in the Panel’s reasons, and where the Panel said that it had confirmed the matters in the first reasons with the claimant during the course of its examination in May 2020.

The first panel was provided with a number of reports by treating practitioners and medico-legal experts engaged by the parties, and written submissions provided by the solicitors for the parties. The first panel examined the claimant in person on 30 August 2019, and provided the first reasons, which were quite lengthy and detailed, on 26 September 2019.

On 26 September 2019, the first panel concluded as follows:

The Panel is unable to determine the medical question because the psychiatric injury to the claimant alleged in the claim has not stabilised and the Panel is not satisfied that the degree of psychiatric impairment resulting from the injury alleged in the claim will satisfy the threshold level once the injury has stabilised.
The Panel fixed April 2020 as the month when the Panel will make further assessment of the degree of psychiatric impairment resulting from the psychiatric injury to the claimant alleged in the claim.

In the first reasons, the first panel:

(a) recounted what occurred during the incident;

(b) referred to the claimant’s account of his attempts to return to work, including an arrangement to return to part-time work on a small construction site which did not eventuate after the claimant fractured his foot while playing football in May 2018 (‘foot injury’);

(c) referred to the claimant’s report that some of his habits led others to describe him as having an obsessive compulsive disorder;[3]
[3]There is no evidence that the claimant had received a formal diagnosis of obsessive compulsive disorder by a qualified medical practitioner: indeed, in his report of 9 December 2019, Dr Weissman opined to the contrary.

(d) referred to the claimant’s account of a severe skin condition (‘cystic acne condition’) which had developed over the course of 2019, which was uncomfortable and unsightly, and was being treated with medication by a dermatologist;

(e) referred to the treatment of the foot injury with a series of steroid injections, and the limitations on the claimant’s physical activity caused by the foot injury;

(f) referred to the claimant’s attendances for psychological counselling, the claimant’s desire to avoid psychotropic medication, and the breakdown of his long-term relationship in 2017;

(g) noted the claimant’s report that his psychological symptoms had worsened significantly in recent months;

(h) referred to the claimant’s living arrangements, daily activities, social and family relationships, employment history and financial circumstances in some detail;

(i) referred to the claimant’s report of his symptoms and level of functioning in some detail;

(j) reported upon its findings regarding its mental state examination; and

(k) concluded as follows:

The Panel formed the opinion that the Claimant has developed a chronic Post Traumatic Stress Disorder with panic attacks and a Major Depressive Disorder with melancholic and psychotic features.
The Panel noted the Claimant having described psychotic symptomatology, specifically auditory hallucinations as having occurred in recent months and also a worsening of his symptoms. The Panel also noted that the Claimant had missed many appointments with his treating psychologist because he could not drive or was unable to get out of bed. The Panel also noted that the Claimant has not had pharmacological treatment and has only had diazepam prescribed and has no pharmacological treatment for his severe depressive illness and no TMS or ECT or psychiatric inpatient treatment.
The Panel noted the Claimant’s preference to not take psychotropic medications, but as the Panel also noted the worsening of symptoms and now the recent development of psychotic symptoms, the Panel formed the opinion that the Claimant’s current psychiatric condition is not stable and may be significantly positively changed by the provision of active treatment modalities such as psychotropic medication (other than diazepam) and/or TMS and/or ECT, in an inpatient setting.
The Panel conducted a psychiatric impairment assessment in accordance with the Guide for the Evaluation of Psychiatric Impairment for Clinicians (GEPIC), as required by Section 28LJ of the Wrong’s Act 1958. [sic][4]
After making the assessment, the Panel is unable to determine the medical question, because the psychiatric injury to the Claimant alleged in the claim has not stabilised and the Panel is not satisfied that the degree of psychiatric impairment resulting from the psychiatric injury to the Claimant alleged in the claim, will satisfy the threshold level once the injury has stabilised.
The Panel fixes April 2020 as the month when the Panel will make an assessment of the degree of psychiatric impairment resulting from the injury to the Claimant alleged in the claim.

[4]This should read as a reference to s 28LI(1) of the Act.

The Panel, this time comprised of two different psychiatrists,[5] examined the claimant by audio‑visual link on 25 May 2020. It seems that most or all of the materials which were before the first panel were provided to the Panel, along with the following documents:
[5]It is not apparent from the materials why the composition of the Panel differed from the composition of the first panel. It may simply have been a matter of administrative convenience.

(a) further submissions by the claimant’s solicitors dated 21 May 2020;

(b) a report from Dr De Alwis, the claimant’s treating general practitioner, dated 20 November 2019;

(c) a report from Dr Kerry Gemmell, the claimant’s treating clinical psychologist, dated 21 November 2019;

(d) a report from Dr David Weissman, a medico‑legal expert retained by the claimant’s solicitors, dated 9 December 2019;

(e) a report from Mr Mark Creamer, a medico‑legal expert engaged by the claimant’s solicitors, dated 5 February 2020; and

(f) a vocational assessment report prepared by Mr Paul Hartley of Vocational Directions Pty Ltd dated 23 February 2020.

On 9 June 2020, the Panel determined the medical question as follows:

The Panel determined that the degree of impairment resulting from the psychiatric injury to the claimant alleged in the claim does satisfy the threshold level.

The Panel’s reasons were considerably briefer than the first reasons. The Panel stated as follows:

… the Panel confirmed the details provided in [the first reasons] of the injury, his response to it, his treatment, his past history, his family history and his developmental history until the date of [the first panel’s] examination. The current Panel assessed the Claimant’s progress since the previous Panel interview.

Accordingly, while the Panel did not say so expressly, it is apparent from the statement above and the content and focus of the balance of the Panel’s reasons that the Panel’s reasons should be read together with the first reasons, with the Panel providing in effect an opinion supplementary to the opinion of the first panel.

Following the passage of the reasons reproduced at paragraph 30 above, the Panel’s reasons then went on to report upon its examination of the claimant. In summary, the Panel:

(a) referred to the claimant’s changed living circumstances, as the claimant had recently moved in with his mother after being evicted from his previous accommodation for non‑payment of rent;

(b) referred to the claimant’s statement to the effect that he was no longer capable of looking after himself, and that he lacked motivation because he feels “too down and depressed”;

(c) referred to the claimant’s (lack of) social relationships and activity, including his statement that he does not play sport because of the foot injury;

(d) referred to the claimant’s reports of nightmares, anxiety, auditory hallucinations, poor concentration and suicidal ideation, and clarified with the claimant his past history of obsessive compulsive disorder;[6]
[6]See footnote 2.

(e) referred to the claimant’s treatment and medication, noting that the cystic acne condition had improved over the past six months, and that the claimant had ceased taking medication for the cystic acne condition;

(f) referred to the claimant’s plans to attend a psychiatrist for further treatment, and his negative views regarding medication;

(g) reported upon its examination of the claimant’s mental state; and

(h) concluded as follows:

The Panel noted the diagnosis and assessment of impairment contained in the report and Certificate of Assessment of psychiatrist, Dr David Weismann [sic] dated 22 March 2019.
The Panel noted the Submissions of the Respondent’s lawyers, Sparke Helmore Lawyers, dated 13 June 2019 and Claimant’s lawyers, National Compensation Lawyers, dated 26 June 2019 and 20 May 2020.
The Panel noted that the previous Panel formed the opinion that the Claimant developed a chronic post traumatic stress disorder with panic attacks and major depressive disorder with melancholic and psychotic features.
The Panel formed an opinion that the Claimant is suffering from a chronic post traumatic stress disorder and a major depressive disorder, currently in partial remission. The Panel was of the opinion that the claimant is not suffering from a panic disorder.
The Panel considers that due to the nature of the psychiatric injury, the duration of the symptoms and no definitive plans to seek further psychiatric treatment, his psychiatric condition has stabilised.
The Panel conducted a psychiatric impairment assessment in accordance with the Guide for the Evaluation of Psychiatric Impairment for Clinicians (GEPIC) as required by Section 28LI of the Wrongs Act 1958 (the Act).
In making an assessment of impairment, the Panel took into account the Claimant’s history and referral material to determine if there is any impairment that the Panel considers is from unrelated causes or injuries and which the Panel is required to disregard in accordance with Section 28LL(3) of the Act.
In the Panel’s opinion there is no impairment from unrelated causes or injuries that should be disregarded pursuant to 28LL(3) of the Act.
The Panel concluded that there is some impairment secondary to a physical injury that should be disregarded pursuant to Sections 28LJ of the Act.
The Panel determined that the degree of impairment resulting from the psychiatric injury to the Claimant alleged in the claim is permanent and is 10% or more and therefore does satisfy the threshold level as prescribed by Section 28LB of the Act as amended.
The Panel considers that it has assessed psychiatric impairment arising from the Claimant’s psychiatric injury alleged in the claim in accordance with GEPIC and considers that further explanation or detailed reasons of the basis on which it has calculated impairment is prohibited by Section 28LZG(4) of the Act.
The Panel also considers that it is not required to make a finding in relation to the issue of whether or not the Claimant’s current impairment which the Claimant attributes to the injuries alleged in the claim, was caused by the circumstances of the incident, as alleged, that gave rise to the claim but the Panel has assessed impairment only arising from the injuries to the Claimant that are potentially compensable.
(emphasis added)

The originating motion

In their amended originating motion filed on 5 May 2021, the plaintiffs sought an order in the nature of certiorari quashing the Panel’s opinion, and an order in the nature of mandamus remitting the medical question to a differently constituted medical panel, on the basis that the Panel’s opinion contains the following errors of law:

(a)The Second Panel failed to properly apply the principles set out in Wilson v Liquorland Pty Ltd [2014] VSC 545, and failed to properly disregard pre-existing and/or unrelated impairment pursuant to s.28LL(3) of the Act;
(b)The Second Panel failed to take into account submissions dated 14 June 2019 made by Colin Biggers & Paisley, representatives of the first Plaintiff:
(i) sufficiently or at all;
(ii) in so far as they related to s.28LL(3) of the Act;
(iii)in so far as they related to the Second Panel’s powers pursuant s.28LZC of the Act.

And thereby failed to take into account relevant considerations, and failed to accord the First Plaintiff procedural fairness.
(c)The Second Panel’s finding that there is some impairment secondary to a physical injury that should be disregarded pursuant to sections (sic) 28LJ of the Act, is internally inconsistent with its finding in respect of s.28LL(3) of the Act, lacks an evident and intelligible justification, or demonstrates that the Second Panel misconceived its task, and failed to apply the correct legal test.
(d) In concluding that there was no pre-existing or unrelated impairment that it was required to disregard in accordance with s 28LL(3) of the Wrongs Act, the Second Panel misconceived its task and arrived at a conclusion lacking an evident and intelligible justification.

The evidence

The plaintiffs rely upon two affidavits Ms Rosemary Hamer of Sparke Helmore, the solicitors for the second plaintiff, made on 6 August 2020 and 27 July 2021. In her first affidavit, Ms Hamer deposed largely to formal matters, and exhibited the documents provided to the first panel and the Panel, along with the first reasons and the Panel’s reasons.

In her second affidavit, Ms Hamer deposed that the Panel had before it clinical notes of the Altona Superclinic from February 2009 to 27 December 2018, but did not have any clinical notes from Altona Superclinic post‑dating December 2018, any clinical notes from the dermatologist treating the cystic acne condition, or any clinical notes of the claimant’s treating psychologists. She exhibited the clinical notes obtained by the solicitors for the second plaintiff in the course of the common law proceeding (‘clinical records’).[7]
[7]I refer to the claimant’s objection to the admissibility of the clinical records later in these reasons.

Ms Hamer also deposed to locating a report by the claimant’s treating dermatologist, Dr Paul Curnow dated 15 November 2019, and addressed to the claimant’s solicitors, amongst the clinical records. Dr Curnow’s report stated, omitting formal parts, as follows:

I have been treating Ryan since 31/05/2019 for his severe nodulo-cystic acne. He had severe acne 10 years prior which responded well to isotretinoin. He has subsequently restarted this treatment to get his acne under control again.
I do not believe his current presentation relates to his injuries suffered in incident on 31/3/2016. He is not on any medications that could trigger his acne and acne is very rarely related to mental health or stress issues.
His treatment will likely take 12-18 months to complete and he has a good chance of complete remission from this episode of acne, albeit with significant scarring. He is on a combination of isotretinoin, bactrim and low dose steroids.
His prognosis is good but there will be difficulties along the way with pain and soreness and potential medication side effects.

Ms Hamer deposed that “[I]t is unclear to me why a report which on its face was in the possession of the [claimant’s] solicitors on or about 15 November 2019 was not sent to the [Panel] prior to their examination of the [claimant] on 25 May 2020.”.

The claimant relied upon an affidavit of his solicitor, Ms Amy Caldow, made on 29 July 2021. In her affidavit, Ms Caldow referred to the steps taken by the parties in the common law proceeding, including the issue of subpoenas at the request of the second plaintiff on 30 August 2019, which resulted in the production of the clinical records. She deposed that the clinical records were available for inspection by the plaintiffs from about 27 September 2019, and were inspected and copied by an employee of her firm on or about 3 October 2019. She deposed that prior to that time, the only clinical notes from the claimant’s treating practitioners she had in her possession had been provided to the first panel.

Ms Caldow deposed that she received a copy of Dr Curnow’s report dated 15 November 2019 and his clinical notes on or about 28 January 2020. She deposed that she did not include these documents in the documents forwarded to the Panel by the claimant’s solicitors on 20 May 2020 (see Enclosure B to the Panel’s reasons), because the claimant did not need to rely upon them, given that the medical question concerned the psychiatric impairment arising out of the incident.

Ms Caldow also deposed as to correspondence between the Convenor and the parties to this proceeding leading up to and following the Panel’s examination of the claimant on 25 May 2020, and exhibited that correspondence, which she assumed had been sent to all parties. This correspondence included the following:

(a) a letter sent on behalf of the Convenor on 4 March 2020 which advised that an examination of the claimant had been scheduled for 3 April 2020, noted that the Panel had been provided with the first reasons and the documents referred to in the schedule of attachments to the first reasons, and invited the provision of any further medical reports and any submissions concerning the opinion of the first panel and the first reasons;

(b) a letter from the Convenor dated 23 March 2020 cancelling the examination scheduled for 3 April 2020 because of the developing COVID-19 pandemic;

(c) a letter from the Convenor dated 18 May 2020 advising that the examination had been rescheduled for 25 May 2020, confirming that the Panel had been provided with the first reasons and the schedule of attachments to the first reasons, and again invited the parties to provide any further documents they wished to rely upon and any further submissions;

(d) a letter from the claimant’s solicitors to the Convenor of 20 May 2020 enclosing further medical reports and submissions (ultimately referred to in Enclosure B to the Panel’s reasons), which was also copied to the solicitors for the plaintiffs;

(e) a letter from the Convenor dated 21 May 2020, which advised that the Panel had invited the plaintiffs to comment upon or respond to the additional materials provided to the Panel by the claimant within 14 days; and

(f) a letter from the Convenor dated 30 May 2020 confirming what additional documents the Panel had received and inviting further submissions.

Ms Caldow then went on to depose as follows:

The second Medical Panel delivered its determination on 9 June 2020. Neither the first nor the second plaintiff provided any of the records returned by Altona Superclinic and Psychology on Parade pursuant to the 30 August 2019 subpoenas to the Medical Panel before it returned its determination. Nor did the first or second plaintiffs take up the invitation to supply any further reports or make further submissions.
…
Ms Hamer’s further affidavit furthermore does not exhibit two reports of the first defendant’s treating psychologist, Dr Gemmell, which were contained in the subpoenaed file of Psychology on Parade returned to the Court in 2020. Those reports are dated 23 April 2020 and 23 July 2020. Now produced and shown to me marked “AC-8” are copies of the reports.[8]

[8]The report dated 23 July 2020 was actually a report of Dr Dush Shan, a consultant psychiatrist, which was addressed to the solicitors for the first plaintiff. This report was largely consistent with the reports of the medico‑legal experts commissioned by the claimant. It is unclear whether this report was before the Panel.

The parties’ submissions with respect to each of the grounds of review in the originating motion follow.

Ground 1: the Panel’s failure to assess the claimant’s pre‑existing or unrelated impairment pursuant to s 28LL(3) of the Act
The plaintiffs’ submissions

The plaintiffs referred to the authorities concerning the meaning, operation and effect of s 28LL(3) of the Act, and in particular the summary of the relevant principles in the decision of Niall JA (sitting in the Trial Division) in City of Melbourne v Neppessen & Ors,[9] along with the discussion by McDonald J in Bazouni v State of Victoria[10] and John Dixon J in Summers v Director of Housing.[11] The plaintiffs observed that s 28LL(3) imposes a statutory requirement upon a medical panel, when determining the level of a claimant’s impairment, to identify any pre‑existing or unrelated impairment (where there is any evidence of such impairment) and to disregard that impairment when undertaking the impairment assessment in respect of the claimed injuries.
[9][2019] VSC 84 (‘Neppessen’).
[10][2019] VSC 407.
[11][2012] VSC 395.

The plaintiffs submitted that the correct mechanism for disregarding unrelated impairment is s 28LL(3) of the Act, and the correct mechanism for disregarding secondary psychiatric impairment from a claimed injury is s 28LJ. The plaintiffs submitted that, if a medical panel were allowed to choose which of the two sections could be used to disregard unrelated impairment, that would result in “absolute confusion” whenever this Court comes to consider a medical panel opinion.

The plaintiffs submitted that the Panel’s conclusion that there is no impairment that should be disregarded pursuant to s 28LL(3) cannot sit together with its conclusion that there is some impairment secondary to a physical injury that should be disregarded pursuant to s 28LJ. The plaintiffs submitted that s 28LJ applies in circumstances of secondary psychiatric or psychological impairment referable to the claimed physical injury. Accordingly, this provision is directed at the sequela of a physical injury and, as a result, if the claim is for a psychiatric injury, as in the current case, then s 28LJ has no work to do. The plaintiffs submitted that the ambit of s 28LL(3) is not so confined, as it is not concerned with whether the nature of the injury is physical or psychiatric, but is solely directed at unrelated injuries. Given that s 28LJ relates to the psychiatric or psychological consequences secondary to claimed physical injuries, the Panel’s conclusion is incomprehensible, as there is no evidence of any secondary consequences of the physical injuries to the claimant arising out of the incident, and no means by which the parties or the Court can determine which injury or injuries the Panel disregarded pursuant to s 28LJ.

The plaintiffs submitted that the Panel should have disregarded the psychiatric or psychological consequences secondary to the foot injury under s 28LL(3). The plaintiffs submitted that the evidence, in particular the report of Mr Mark Creamer of 23 March 2018, shows that by that time, the claimant was reporting a significant improvement in his psychiatric state, such that Mr Creamer expressed “cautious optimism”, and that the claimant’s prognosis was “reasonably good”. However, the situation deteriorated significantly after the foot injury in May 2018, and there was abundant evidence before the Panel that the claimant’s deteriorating mental state was at least in part due to the foot injury, and its consequential impact upon the claimant’s ability to engage in exercise, play sport, and fulfil his plan for a staged return to work.

Accordingly, it was not open to the Panel to disregard the impairment arising out of the foot injury, particularly given the following evidence of impairment by reason of the foot injury:

(a) Dr Weissman’s report of 23 March 2019, where he assessed the claimant’s whole person psychiatric impairment as a consequence of the foot injury at 3 per cent; and

(b) Mr Creamer’s report of 5 February 2020, which referred to a marked deterioration in the claimant’s psychiatric condition since March 2018, and observed that the chronic pain suffered by the claimant as a consequence of the foot injury added to the claimant’s distress and functional impairment.

The plaintiffs also relied upon the following matters as supporting their submissions to the effect that it was not open for the Panel to conclude that there was no psychological or psychiatric impairment arising out of the foot injury:

(a) engaging in sport and other physical activity was important to the claimant prior to the incident;

(b) the claimant had been encouraged by his psychologist to return to playing sport;

(c) playing football and socialising at the football club assisted the claimant’s recovery from his psychiatric injury, as evidenced by the improvement of his condition in 2017 and 2018;

(d) in March 2018 the claimant told Mr Creamer that he felt capable of undertaking part‑time employment, had in fact sourced such employment, and would have commenced work save for the foot injury;

(e) the claimant suffered a rapid and significant decline in his mental health following the foot injury;

(f) the foot injury required extensive and ongoing treatment, and had a significant impact upon the claimant’s life, with the claimant reporting ongoing pain and impairment to the Panel in May 2020; and

(g) the plaintiff’s submissions on this ground of review concluded as follows (omitting footnote):

For a man whose recreational outlets pre-morbidly were, by and large, sporting endeavours, and who had returned to sport at the urging of his treating psychologist, who had gained a social outlet in the Laverton Football Club, and had gained the confidence to attempt a return to work, it is common sense that a severe left foot injury impairing his capacity to play the sports he had enjoyed, socialise at the football club and return to work, would cause secondary psychiatric impairment.
Moreover, the evidence before the Medical Panel strongly indicated secondary psychiatric impairment attributable to the football injury, the medico-legal opinion explicitly stated that there was secondary impairment attributable to the football injury, and the Medical Panel itself had taken a history of the worker being unable to play sports due to the football injury, having earlier enjoyed sports and exercise.
In those circumstances, it simply was not open for the Medical Panel to find that there was no psychiatric impairment attributable to a pre-existing or unrelated injury or condition that had to be disregarded pursuant to s.28LL(3).

The claimant’s submissions regarding this ground of review were to the effect that:

(a) the plaintiffs’ contentions are premised upon an erroneous assumption regarding the proper construction and application of s 28LJ of the Act; and

(b) even if any psychological impairment secondary to the foot injury was to be disregarded under s 28LL(3) of the Act (as contended for by the plaintiffs) rather than s 28LJ of the Act (as referred to by the Panel in its reasons) the evidence before the Panel did not compel the Panel to conclude that the claimant was suffering a permanent impairment from the foot injury (emphasis added).

With respect to (a) above, the claimant submitted that the plaintiffs did not refer to any authority to support their contention that any secondary impairment arising from the foot injury should be disregarded under s 28LL(3) of the Act rather than s 28LJ of the Act.

The claimant submitted that the operation of s 28LJ is not restricted to symptoms or impairment arising as a consequence of, or secondary to the claimed injury, but includes any physical injury. As observed by J Forrest J in Dixon v Hacker,[12] the purpose of s 28LJ of the Act is to quarantine from any assessment of psychiatric injury any impairment or symptoms secondary to a physical injury. The claimant submitted that whether or not the secondary symptoms or impairment are related to the claimed injury is irrelevant. In comparison, the purpose of s 28LL(3) is to ensure that any pre‑existing or unrelated primary impairment is excluded from the assessment of the primary impairment for the claimed injury.
[12][2007] VSC 342 (‘Hacker’).

Further, the claimant submitted, a medical panel is only required to disregard unrelated impairment under s 28LL(3) if the evidence demonstrates, and the medical panel is positively satisfied that there is a permanent impairment from an unrelated injury or cause. In that regard, in addition to the evidence relied upon by the plaintiffs in their submissions, the other evidence before the Panel included:

(a) a report by Dr Das, a medico‑legal expert engaged by the solicitors for the plaintiffs, dated 11 January 2019, which referred to the claimant’s report that the foot injury had healed, and that he was in no physical discomfort from the foot injury. Dr Das reported that after the claimant had recovered from the foot injury, he tried to recommence the part‑time work the claimant planned to undertake prior to the foot injury, but was unable to cope by reason of his incident related anxiety. Dr Das made no diagnosis of or any reference to any secondary psychiatric condition or impairment related to the foot injury;

(b) the claimant’s treating psychologist, Dr Kerry Gemmell has not diagnosed or referred to any secondary psychiatric impairment as a consequence of the foot injury; and

(c) Dr De Alwis, the claimant’s general practitioner, reported in November 2019 that the claimant was only getting foot pains “on and off”, and that the physical symptoms associated with his foot injury were stable.

The claimant submitted that, any secondary impairment, however arising, and whether related or unrelated to the claimed injury, falls to be disregarded under s 28LJ. In contrast, if there is unrelated non-secondary impairment, then that falls to be disregarded under s 28LL(3).

As for the plaintiffs’ submission that there had been a rapid and significant decline in the claimant’s psychiatric condition following the foot injury, the claimant submitted, in summary, as follows:

(a) the plaintiffs’ submissions with respect to the assessment undertaken by Mr Creamer just prior to the foot injury were not a fair and accurate summary of Mr Creamer’s findings regarding the claimant’s psychiatric state and prognosis, noting that Mr Creamer in his report of 23 March 2018 stated that “The extent of his psychological reactions to the incident, and the severity and duration of his symptoms, and a bad prognostic sign”;

(b) there was a wealth of other evidence available to the Panel concerning the severity of the claimant’s reaction to the incident prior to the foot injury;

(c) Dr Weissman’s report in March 2019 said that the foot injury contributed to the claimant’s depressive syndrome in a “small/mild” manner. He attributed 3 per cent whole person impairment to the foot injury, and 22 per cent as a consequence of the injury caused by the incident; and

(d) later, in December 2019, Dr Weissman noted that the claimant reported that he rarely experienced foot pain, and identified no psychiatric symptoms or impairment associated with the foot injury.

The claimant submitted that the weight to be given to the evidence before it is a matter for the Panel, and it could not be said there was a preponderance of evidence before the Panel of significant psychiatric or psychological symptoms secondary to the foot injury.

The claimant’s submissions in relation to the first ground of review concluded as follows:

In summary, while the evidence raised a secondary psychiatric reaction to the football injury (of minor overall dimension) as a possibility, it does not demonstrate that that the Panel was bound to so conclude. Still less that the Panel was bound to conclude that there was psychiatric impairment secondary to the football injury persisting at the time of the Panel’s examination that was permanent. It was a matter for the Panel to evaluate the evidence before it in light of its medical expertise and to determine in its professional judgment whether it was sufficient to demonstrate permanent impairment from an unrelated injury or cause. It is not sufficient for the plaintiffs to suggest that another conclusion about unrelated impairment was possible or open. They must demonstrate that there was an impairment which the Panel was bound to disregard and failed to do so in order to demonstrate the error alleged under ground 1. For the foregoing reasons, the Court should not be satisfied that the plaintiffs have discharged their onus.

Ground 2: denial of procedural fairness
Plaintiffs’ submissions

In their submissions concerning this ground of review, the plaintiffs submitted that in its reasons, the Panel “noted” the submissions of Sparke Helmore and National Compensation Lawyers, but made no reference to the submissions provided by Colin Biggers & Paisley on behalf of the first plaintiff (‘CBP panel submissions’). The plaintiffs submitted that from this omission in the Panel’s reasons, it can be inferred that the Panel failed to have regard to the CBP panel submissions, which of itself amounts to a denial of procedural fairness, particularly given the focus of the CBP panel submissions upon the potential impact of the foot injury and the cystic acne condition upon the claimant’s mental health.

The plaintiffs submitted that this omission was material, as the CBP panel submissions went further than Sparke Helmore’s submissions in asserting that the claimant’s psychiatric impairment was associated with causes unrelated to the incident. The CBP panel submissions specifically referred to the foot injury, and the first plaintiff’s contention to the effect that s 28LL(3) of the Act was engaged. Further, the CBP panel submissions referred to the paucity of clinical notes from the claimant’s treating practitioners available to the plaintiffs and the Panel (and the first panel), and submitted that the Panel should use its powers under s 28LZC of the Act to compel the production of the clinical records, which were not at the time of the referral to the Convenor available to the plaintiffs through the common law proceeding.

The plaintiffs submitted that the failure of the Panel to obtain the clinical records amounted to a failure on the part of the Panel to discharge its statutory function, and a failure to afford the first plaintiff procedural fairness. This failure was material: the clinical records from Psychology on Parade, which were not before the Panel[13] confirm a number of the matters relied upon by the plaintiffs to support their submissions that the claimant’s psychiatric impairment was at least in part caused by matters unrelated to the incident, being the matters referred to in paragraph 48 above.
[13]The question of the admissibility of the clinical records will be addressed later in these reasons.

The plaintiffs submitted that, as a consequence of the Panel’s failure to obtain the clinical records, the Panel failed to consider a considerable body of evidence regarding the extent and the severity of the secondary psychiatric impairment associated with the foot injury and the cystic acne condition. Further, if the Panel had concluded that the cystic acne condition was related to the incident, that finding was not open on the evidence, and was thus legally unreasonable. If the cystic acne condition was not related to the injury arising out of the incident, then any secondary impairment associated with the cystic acne condition fell to be disregarded by reason of s 28LL(3) of the Act. However, the Panel had no access to any clinical records from the claimant’s treating dermatologist, or a substantial sub‑set of the clinical records held by Dr De Alwis, amongst which was a note of a report by the claimant of suicidal ideation associated with the foot injury, along with frequent references to the cystic acne condition and its severity.

Claimant’s submissions

The claimant accepted that the Panel was required to have regard to the CBP panel submissions in order to comply with its obligations to afford the parties procedural fairness. However, the claimant submitted that the matters raised in the CBP panel submissions were not necessarily mandatory relevant considerations the Panel was bound to take into account, such that any failure to take those matters into account could have materially affected the Panel’s findings and ultimate determination.

In any event, the claimant submitted that the Court should not be persuaded that the Panel failed to take the CBP panel submissions into account: they were referred to in the schedule to the Panel’s reasons, and the CBP panel submissions were part of the covering letter to the original referral materials provided by the solicitors for the first plaintiff to the Convenor.

Turning to the contents of the CBP panel submissions, the claimant observed that:

(a) the first 11 paragraphs of the CBP panel submissions contain introductory or background material of no great moment;

(b) paragraphs 12 to 18 of the CBP panel submissions, which referred to the evidence of unrelated causes of the claimant’s psychiatric condition, raised matters also referred to in Sparke Helmore’s submissions; and

(c) the first reasons and the Panel’s reasons make it quite clear that both medical panels were alive to the issue of whether the claimant suffered from any pre‑existing or unrelated impairment.

The claimant noted that the balance of the CBP panel submissions invited the first panel to exercise its powers under s 28LZC(1)(b) of the Act to compel the production of the clinical records. The claimant submitted that the first panel clearly declined to accept the invitation, and the Panel must be presumed to have done so as well. Accordingly, the Panel can be taken to have considered that it had sufficient information before it to provide an informed opinion on the medical question without the need to obtain the clinical records. Further, given the evidence that the solicitors for the claimant did not have the clinical records in their possession until after the determination of the first panel, any request by the first panel for the clinical records may have been unproductive.

Finally, the evidence shows that the clinical records were available to the plaintiffs to review from about 27 September 2019, and no explanation has been provided as to why the plaintiffs did not provide them to the Panel, given the months which had elapsed between the production of the clinical records to this Court for the purposes of the common law proceeding and the date of the Panel’s examination of the claimant.

The claimant also submitted that, in any event, the plaintiffs’ submissions concerning the significance of the clinical records should be rejected, on the basis that:

(a) the plaintiffs’ submissions concerning the improvement in the claimant’s mental state prior to the foot injury, and his deterioration after the foot injury appear to “have been plucked out of context from hard to decipher clinical notes”;

(b) the clinical records cover the same matters as referred to in the other materials before the Panel;

(c) the clinical records cover the period up to October 2018, but the more up to date material before the Panel tells against there being any ongoing or permanent secondary psychiatric impairment from the foot injury; and

(d) Dr Gemmell’s reports in 2019 and 2020 focus on the claimant’s significant ongoing psychological distress caused to the claimant by the incident, and do not refer to there being any psychiatric or psychological condition or impairment secondary to the foot injury.

The claimant submitted, similarly, that the plaintiffs’ complaints regarding the Panel’s asserted failure to have regard to any secondary psychiatric impairment from the cystic acne condition by reason of its failure to obtain the clinical records should be rejected. The claimant submitted that the Panel’s reasons show that:

(a) the Panel clearly had regard to the first reasons, which contained a detailed description of the cystic acne condition, and the Panel confirmed this history with the claimant;

(b) the claimant reported to the Panel that he had ceased all medications for the cystic acne condition, and the condition of his skin had improved over the previous six months;

(c) the Panel clearly understood that its task included consideration of whether there was any impairment it had to disregard pursuant to s 28LJ or s 28LL(3) of the Act, and its questioning of the claimant regarding the cystic acne condition was relevant to that task; and

(d) it was not necessary for the Panel to state the nature and cause of any secondary impairment that it did in fact disregard.

The claimant observed that the Panel was prohibited by s 28LZC(4) from specifying the actual degree of impairment it assessed, or from providing further information which would reveal the degree of impairment it had assessed.

Finally, the claimant submitted, referring to the reasons of the Court of Appeal in Chang v Neill,[14] even if the Panel erred by assessing the impairment caused by the skin condition under s 28LJ rather than s 28LL(3) of the Act, any such error was not material, as the outcome of the Panel’s impairment assessment would be unchanged, given the Panel’s examination of the claimant, where it obtained an up to date history from the claimant regarding the cystic acne condition.
[14](2019) 62 VR 174 [94]-[99].

Ground 3: the Panel’s decision under s 28LJ of the Act lacked an evident and intelligible justification
Plaintiffs’ submissions

The plaintiffs’ submissions with respect to this ground of review were premised upon their contention that s 28LJ of the Act only applies in circumstances where the Panel is required to assess whether a claimant suffered psychological or psychiatric impairment secondary to a claimed physical injury, and that the Panel should have assessed any impairment connected with the foot injury and/or the cystic acne condition pursuant to s 28LL(3) of the Act, which refers to unrelated injuries or causes. In such circumstances, the Panel’s conclusion that there was some impairment secondary to a physical injury which should be disregarded pursuant to s 28LJ of the Act was illogical, lacks an intelligible justification, and was not open to the Panel to make.

The plaintiffs observed that the only physical injury referred to in the claimant’s materials were lacerations, bruising and scarring arising out of the incident, which all healed a long time ago. These injuries were not referred to in the claimant’s particulars of injury in the common law proceeding. The plaintiffs submitted as follows:

There was no evidence of any ongoing impairment to the right leg as of May 2020, much less any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, the injuries to the worker’s right leg.

The plaintiffs submitted that the lack of evidence regarding any impairment secondary to the right leg injury suffered at the time of the incident is to be contrasted with the considerable body of evidence of impairment attributable to the foot injury.

Further, the plaintiffs submitted that the Panel’s reference to s 28LJ cannot be satisfactorily explained by the claimant’s cystic acne condition. In particular:

(a) the cystic acne condition was not a claimed injury;

(b) while the cystic acne condition could conceivably have been alleged to be a sequela to the claimed psychiatric injury, there was no evidence by which the Panel could be satisfied that the cystic acne condition was causally related to the claimed injuries;

(c) the Panel failed to obtain any material relevant to the cause of the cystic acne condition, and it is not apparent from the Panel’s reasons that the Panel took any history from the claimant regarding any psychiatric impairment secondary to the cystic acne condition; and

(d) the plaintiffs’ submissions regarding this ground of review concluded as follows:

The only other physical injury about which the Medical Panel took a history is the football injury. If it is the secondary psychiatric impairment referrable to the football injury to which the Medical Panel is referring in that paragraph referencing s.28LJ, the Medical Panel has misconceived its tasks, misunderstood the Act, and failed to apply the correct legal test.
Perhaps the clearest indicator of legal unreasonableness is the fact that it is not at all clear which physical injury the Medical Panel is referring to when referencing s.28LJ, and the reasons lack an evident and intelligible justification for the finding in respect of s.28LJ regardless of which physical injury the Medical Panel is actually referring to.

In response, the claimant submitted as follows:

The plaintiffs’ submissions under ground 3 are again premised on the assumption that any psychiatric impairment secondary to the football injury or the first defendant’s skin condition fell to be disregarded under s 28LL(3) and not s 28LJ of the Act. For the reasons set out in B.2.1 above, that assumption should be rejected.
The Panel’s finding that there was some impairment secondary to a physical injury that should be disregarded pursuant to s 28LJ was apt to include secondary impairment arising as a result of both the football injury and the skin condition. In any event, even if, contrary to the submissions in B.2.1 above, impairment secondary to the football injury and skin condition fell to be disregarded under s 28LL(3) instead of s 28LJ, any such error was not material for the reasons already explained.

Ground 4: the Panel’s conclusions regarding s 28LL(3) of the Act lacked an evident and intelligible justification
Plaintiffs’ submissions

This ground in some respects mirrors the third ground of review.

The plaintiffs submitted as follows (omitting footnote):

A decision will be unlawful by reason of legal unreasonableness if there is no evident and intelligible justification for the decision.
In view of the evidence of unrelated psychiatric impairment referrable to the football injury, it is the Plaintiffs’ respectful submission that there is not, demonstrable in the Reasons, nor could there possibly be, an evident and intelligible justification for the Medical Panel’s conclusion that there is no impairment from unrelated causes or injuries that should be disregarded pursuant to s.28LL(3).

The plaintiffs submitted that the lack of clarity concerning what secondary impairment was disregarded by the Panel under s 28LJ means that it is not possible for the Court to comprehend how the Panel’s decision was arrived at. The plaintiffs referred to the decision of the High Court in Minister for Immigration and Citizenship v Li[15] as authority for the proposition that, notwithstanding that reasons have been provided, a Court may nevertheless conclude that it is not possible to comprehend how the decision was arrived at, such that the decision may be considered legally unreasonable.
[15](2013) 249 CLR 332 [76] (‘Li’).

Claimant’s submissions

The claimant submitted as follows (omitting footnote):

The availability of irrationality, illogicality and unreasonableness as grounds of review of a medical panel opinion remains uncertain. If the Panel’s conclusions in this case are reviewable for legal unreasonableness, it is a stringent test:
The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient weight or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even through [sic] that judgment is rationally open to the decision-maker.

The plaintiffs’ contentions under ground 4 largely rehearse matters already raised under other grounds.
For the foregoing reasons, it was rationally open and not legally unreasonable for the Panel to conclude that there was no impairment from an unrelated injury or cause that was required to be disregarded under s 28LL(3) of the Act. It was also open and not legally unreasonable for the Panel to conclude that there was, however, impairment secondary to a physical injury that should be disregarded pursuant to s 28LJ.

In response to the plaintiffs’ submission that the Court cannot clearly discern from the Panel’s reasons what was disregarded under s 28LJ, the claimant observed that inadequacy of reasons is not a ground of appeal for review of a medical panel opinion under the Act. The claimant submitted that the plaintiffs’ submission concerning the alleged inadequacy of reasons has been conflated with the plaintiffs’ contention that the Panel’s determination was unreasonable or irrational. The claimant observed that Li[16] is not authority for the proposition that inadequacy of reasons necessarily equates to legal unreasonableness. Rather, the decision in Li[17] stands for the proposition that, if the outcome of the relevant decision is one that appears to be legally unreasonable, the Court may look to the reasons to see if it can discern a rational basis for the decision. Accordingly, the first step in the analysis involves a determination that the decision is, on its face, unreasonable.
[16]Ibid.
[17]Ibid.

The claimant submitted that it is not permissible to progress from a finding that the Panel had provided inadequate reasons to a finding that the decision was legally unreasonable: to do so would be to apply Li in reverse.[18] Rather, the starting point, which the plaintiffs must establish, and have not established, is that the Panel’s conclusions are legally unreasonable. Further, it does not matter whether this Court can discern what was and was not disregarded under s 28LJ, as there was no need for the Panel to specify those matters in its reasons.
[18]Ibid.

Finally, the claimant referred to the decision of J Forrest J in Hacker[19] as authority for the proposition that the Panel’s reasons cannot be found to be inadequate merely by reason of a failure by a medical panel to set out precisely how it had taken into account any secondary psychological impairment. The Panel’s conclusion that there was no unrelated impairment, but that there was secondary impairment consequent upon a physical injury, was open to the Panel, and there was no need for the Panel to go further and elaborate on those conclusions in its reasons. To the contrary, if the Panel had gone any further in the Panel’s reasons, the Panel would have run the risk of contravening the terms of s 28LZG(4) of the Act.
[19][2007] VSC 342.

Preliminary issue: the admissibility of the clinical records

Prior to turning to the plaintiffs’ grounds of review, there is one preliminary matter to deal with. The plaintiffs sought to rely upon the clinical records, which included records produced by Altona Superclinic (where the claimant’s treating general practitioner practised), Psychology on Parade (where the claimant’s treating psychologist practised) and Dr Paul Curnow, the dermatologist treating the claimant’s cystic acne condition, along with a report prepared by Dr Curnow in November 2019. To recapitulate, the clinical records were produced to this Court on or around 20 September 2019 pursuant to subpoenas issued on behalf of the second plaintiff (the second defendant in the common law proceeding), and were exhibited to an affidavit of Rosemary Hamer of Sparke Helmore made in this proceeding on 27 July 2021.

The claimant objected to the admission of the clinical records on the basis that they were not relevant to any fact in issue, as the clinical records were not before the Panel when it was considering the medical question. The parties’ submissions proceeded on the basis that the clinical records may well be admitted into evidence.

The claimant referred to the recent decision of the Court of Appeal in Mackenzie v Head, Transport for Victoria,[20] which concerned, at least in part, the admissibility of evidence in an application for judicial review which was not before the original decision‑maker. The Court of Appeal stated as follows:
[20][2021] VSCA 100.

Ordinarily, in a judicial review proceeding, the legality of a decision is determined by reference to the material that was before the decision-maker when he or she made the impugned decision and therefore evidence that was not then before the decision-maker is usually inadmissible. However, there are some classes of evidence that is admissible even though it was not before the decision-maker. The classes that require consideration in the present case are:
(5) Evidence that constitutes an admission by the decision-maker.
(6)Evidence that falls within the Prasad principle, that is, evidence that is capable of showing that the decision-maker failed to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, and the failure renders the decision legally unreasonable or constitutes a constructive failure to exercise jurisdiction.
(7)Evidence that is capable of showing that the decision-maker made an error as to a jurisdictional fact and therefore did not have jurisdiction to make the decision.
(8)Evidence that is capable of showing that the decision-maker made an error as to a non-jurisdictional fact of such a nature that he or she thereby constructively failed to exercise jurisdiction.
(9)Expert evidence that is capable of showing that there was no intelligible foundation for the decision.[21]

[21]Ibid [153] (omitting citations)

The claimant submitted that the Prasad principle referred to above had not been engaged, because the plaintiffs had not contended that it was legally unreasonable for the Panel to decline to exercise its powers to compel the production of the clinical records, and it was not open to the plaintiffs to invoke the Prasad principle in circumstances where their grounds of review focussed upon the Panel’s alleged denial of procedural fairness and failure to take into account mandatory relevant considerations.

I accept that, in the ordinary run of cases, this Court should be very cautious to admit into evidence documents and other evidence not before the relevant medical panel. However, in Neppessen,[22] Niall JA “reluctantly” admitted an expert report containing an analysis of a medical panel’s opinion, on the basis that the applicant before him had challenged the legal reasonableness of the medical panel’s opinion. In the current case, the plaintiff also challenged the Panel’s opinion on the grounds of legal unreasonableness, although that challenge is somewhat predicated on their submissions that the Panel erred in applying s 28LJ rather than s 28LL(3) (‘statutory construction point’), such that the clinical records might be less relevant to the issue of the legal unreasonableness of the Panel’s determination in this case, as was the case in Neppessen.[23]
[22][2019] VSC 84.
[23]Ibid.

However, given the nature in which the plaintiffs have put their case, in particular, the contention that it was not unreasonable for the Panel not to find that it should disregard any impairment upon the foot injury, I accept that the clinical records may be relevant to that question. I accept the plaintiffs’ submission that it is not necessary for the plaintiffs to assert that it was legally unreasonable for the Panel to refuse to compel the production of the clinical records in order to invoke the Prasad principle.

Further, I accept also that, given the plaintiffs also rely upon their ground of review asserting a denial of procedural fairness, which turns at least in part upon their contention that the Panel erred in failing to exercise its discretion to compel production of the clinical records, the clinical records may be relevant to determining whether any error on the part of the Panel in that regard was material to the Panel’s determination.[24] Accordingly, I have admitted the clinical records into evidence.
[24]See Schmael v Leach [2020] VSC 562 [25].

Relevant legal principles

Prior to turning to the specific issues raised by the plaintiffs’ grounds of review, it is appropriate to briefly canvass some general principles regarding the reviewability of the opinions of medical panels and the role of this Court upon review. These matters were the subject of recent consideration and recapitulation by the Court of Appeal in Sidiqi v Kotsios.[25] While Sidiqi[26] concerned a medical panel determination under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRCA’), most of the Court’s statements apply equally to determinations made under the Act.
[25][2021] VSCA 187 (‘Sidiqi’).
[26]Ibid.

In Sidiqi,[27] the Court identified a number of matters which need to be borne in mind in applications of the current kind, which I have summarised below:[28]
[27]Ibid.
[28]Ibid. This summary is an adaptation of the Court’s reasons at [29]-[61].

(a) save in exceptional circumstances, the merits of a medical panel’s decision are not open to review, as might be the case in an appeal by way of rehearing;

(b) accordingly, it is not open to argue that “the decision reached by [the medical panel] was contrary to competing inferences to be drawn from the evidence as a whole”;

(c) the statutory function of a medical panel is to form and give its own opinion on the medical question referred to it by applying its own medical experience and expertise, being expertise which the Court does not possess;

(d) the medical expertise of a medical panel informs not only the opinion it forms, but the means by which it forms its opinion, and upon what evidence it informs its opinion;

(e) it will be difficult to conclude that an opinion was not open to a medical panel if that opinion was materially informed by the expertise of that medical panel, particularly where the medical panel is composed of practitioners with relevant specialist expertise;

(f) a medical panel may inform itself on any relevant matter in any matter if it sees fit, and it is for the medical panel to determine what information it requires to form its opinion;

(g) while a medical panel opinion will be amenable to judicial review if it reached a conclusion of fact not open to it, establishing a ground of review based upon “no evidence” may be very problematic, whether it be a specific finding of fact based upon direct evidence or an inference drawn from evidence concerning a number of primary facts, or circumstantial evidence;

(h) different facts or combinations of facts may support different inferences, upon which reasonable minds may differ;

(i) a decision made by the exercise of a statutory power may be unreasonable in a legal sense where it lacks an evident and intelligible justification, which may necessitate an evaluation of not only the decision itself, but the decision‑making and reasoning process behind the decision;

(j) while there remains some uncertainty as to whether and how the principles of irrationality and illogicality (as explained by the High Court in Minister for Immigration and Border Protection v SZVFW),[29] there is much to be said for the view that, given the line of authority to the effect that legal reasonableness is a condition of the lawful exercise of statutory power, the opinion of a medical panel is not immune from review on the grounds of illogicality, irrationality, or unreasonableness;
[29](2018) 264 CLR 541, 572-4 per Nettle and Gordon JJ.

(k) however, while legal unreasonableness is necessarily fact‑dependent, acceptance of the availability of legal unreasonableness (however expressed) as a ground of review does not open the door to merits review of medical panel determinations, as the test for legal unreasonableness is stringent, and allows room for reasonable minds to differ; and

(l) the Court stated as follows:

… a medical panel will commit jurisdictional error if it fails to give genuine consideration to matters which it is required by statute to consider and that consideration could have materially affected its decision, or to fundamental issues raised by the facts of the case.[30]

[30]Ibid [61].

In Sidiqi,[31] the Court of Appeal was concerned with the opinion of a medical panel under the WIRCA, and then went on to identify the relevant principles governing the standard of reasons to be provided by a medical panel, which are not relevant for present purposes, as inadequacy of reasons is not available as an independent ground of review of determination made by medical panels under the Act. That does not mean that a medical panel’s reasons are irrelevant to an application for judicial review of a medical panel’s opinion made under the Act. Examination of a medical panel’s reasons may be useful or necessary in determining whether a medical panel has asked itself the proper question, understood the task before it, had taken into account mandatory relevant considerations, or had an evident or intelligible justification for its opinion.[32]
[31]Ibid.
[32]See Chang v Neill (2019) 62 VR 41 [54] and Bazouni v State of Victoria [2019] VSC 407 [11].

However, while a medical panel’s reasons may be relevant to the inquiry this Court is required to undertake in an application for judicial review of an opinion of a medical panel, the Court should be alert to any attempt to challenge the opinion of a medical panel using the device of what might be described as “traditional” grounds of judicial review, when the real complaint concerns the adequacy of a medical panel’s reasons.

Another Court of Appeal decision of particular relevance to the current case is Chang v Neill,[33] where the Court canvassed the implications of a possible error of fact on the part of a medical panel regarding a significant issue before it. This discussion took place following reference by a number of judges sitting in the Trial Division (including this author) to a “fundamental” error of fact amounting to jurisdictional error, when considering applications for review of medical panel decisions.
[33](2019) 62 VR 174.

It was in this context that the Court considered the relevance of “materiality” in determining whether a decision-maker’s error regarding a non‑jurisdictional fact could amount to jurisdictional error. That is not the current case, but the Court’s discussion about the concept of “materiality” is of particular relevance to the current application.

The Court commenced its discussion by reference to the following passage in the decision of Minister for Immigration and Multicultural Affairs v Yusuf[34] which the Court of Appeal described as a “non-exhaustive statement as to what constitutes jurisdictional error”:[35]

[I]dentifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute. In other words, if an error of these types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.[36]

[34](2001) 206 CLR 323.

[35](2019) 62 VR 174 [75].

[36](2001) 206 CLR 323 [82] (emphasis added).

After a discussion concerning when a failure to take into account relevant material could amount to jurisdictional error, the Court went on to consider the relevance of the “materiality” of any factual error on the part of a medical panel in determining whether the medical panel’s opinion was initiated by jurisdictional error, and stated as follows:

The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decisionmaker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material — properly construed — is an essential feature of a valid exercise of the function.[37]

[37](2019) 62 VR 174 [92] (omitting footnote).

The Court then went on to define “material” to mean that “the outcome of the exercise of the relevant power could have been different if the factual error had not been made”.[38]
[38]Ibid [93].

The Court[39] then referred to the reasons of the plurality of the High Court in Hossain v Minister for Immigration and Border Protection,[40] including the statement of the plurality that “[t]he statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non‑compliance”.[41] The Court referred to the following statement of the plurality as reflecting the “substance of the materiality threshold”.

[T]he threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of ‘the possibility of a successful outcome’, or where a decision-maker failed to take into account a mandatory consideration which in all the circumstances was ‘so insignificant that the failure to take it into account could not have materially affected’ the decision that was made.
...
Ordinarily, ... breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision.[42]

[39]Ibid [94]

[40](2018) 264 CLR 123.

[41]Ibid [29].

[42]Ibid [30]-[31] (omitting citations).

The Court[43] then went on to refer to the subsequent decision of the High Court in Minister for Immigration and Border Protection v SZMTA,[44] which concerned, among other things, an alleged denial of procedural fairness, where Bell, Gageler and Keane JJ stated as follows:

Materiality, whether of a breach of procedural fairness in the case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an incorrect and invalid notification, is thus in each case essential to the existence of jurisdictional error. A breach is material to a decision only if compliance could realistically have resulted in a different decision.[45]

[43](2019) 62 VR 174 [97]-[99].

[44](2019) 264 CLR 421.

[45]Ibid [45].

The Court concluded its analysis of the authorities as follows:

The observations of the plurality in both Hossain and SZMTA as to the role of materiality in informing whether an error is jurisdictional were not confined to any particular type of jurisdictional error. Accordingly, pending further clarification by the High Court, we will proceed on the basis that those observations apply to a jurisdictional error constituted by a decision-maker failing to have regard to, or misconstruing, a factual matter. However, the additional requirement of materiality is unlikely to make much difference in practice in relation to such an error. That is because an error in relation to a factual matter, consideration of which is an essential feature of a valid exercise of the relevant statutory function, will usually satisfy the materiality requirement.[46]

[46](2019) 62 VR 41 [100] (omitting footnote).

What can be seen from the recent discussion by the Court of Appeal in Sidiqi[47] and Chang v Neill[48] referred to above, is that applications for judicial review of the current kind must proceed on the basis that they are not to be used as a vehicle for merits review, particularly given where a medical panel’s opinion is formed using its own knowledge and expertise, and any factual, procedural, or other legal error must be shown to have materially altered the outcome of the medical panel’s determination, such that if the medical panel had not so erred, there may have been a different result. And, while the preponderance of authority supports the availability of the unreasonableness/illogicality grounds of review, the test is a stringent one indeed.
[47][2021] VSCA 187.
[48](2019) 62 VR 174.

The plaintiffs’ grounds of review

While the plaintiffs have identified four grounds of review, grounds 1, 3 and 4 (‘substantive grounds of review’) substantially cover the same ground. Ground 2 concerns the alleged failure of the Panel to afford the first plaintiff procedural fairness, and will be dealt with separately in these reasons.

In the substantive grounds of review, the plaintiffs advance the following proposition:

(a) there was substantial evidence of the claimant’s psychiatric and psychological impairment from causes unrelated to the incident, particularly arising out of the foot injury, but also possibly from the cystic acne condition;

(b) impairment of that kind fell to be disregarded by the Panel under s 28LL(3) as that provision concerns unrelated impairment;

(c) however, the Panel determined that there was no impairment to disregard under s 28LL(3), but that there was impairment secondary to a physical injury, which it had disregarded under s 28LJ, but that provision should be read as referring to any psychological or psychiatric impairment secondary to the claimed physical injury;

(d) in referring to secondary impairment and disregarding that impairment pursuant to s 28LJ, the Panel was in error, as any such impairment should have been disregarded pursuant to s 28LL(3), and as such, the Panel’s opinion is irrational and/or illogical, and vitiated by jurisdictional error;

(e) the Panel’s failure to disregard any psychiatric or psychological impairment arising from the foot injury pursuant to s 28LL(3) was also unreasonable, given the ample evidence before the Panel of the significant psychological distress caused to the claimant by the foot injury, and the impact of the foot injury upon the claimant’s recovery from the psychiatric injury caused by the foot injury.

The above propositions can be boiled down to two issues:

(a) whether the Panel’s reference to and application of s 28LJ to assess the claimant’s impairment was in error, and if so, was the Panel’s error material to its determination (‘statutory construction issue’); and

(b) was the Panel’s failure to disregard any psychiatric or psychological impairment associated with the foot injury unreasonable in the legal sense?

The statutory construction issue

As a preliminary matter, the statutory construction issue is predicated on the assumption that, when the Panel referred to its reasons to its conclusion that “… there is some impairment secondary to a physical injury that should be disregarded pursuant to [s 28LJ] of the Act”, the Panel was referring to the psychological or psychiatric injury secondary to the foot injury.

However, when having regard to the medical question, the material before the Panel, including the initial referral material, the other evidence before the Panel (including the history provided by the claimant to the Panel), and the Panel’s reasons, I am not necessarily convinced that the Panel’s reference to an impairment secondary to a physical injury must have been a reference to the foot injury. However, given the absence of evidence regarding any psychological or psychiatric consequences of the physical injuries suffered by the claimant during the course of the incident, I shall proceed on the basis that the plaintiffs’ assumption is correct.

If, however, contrary to this assumption, the Panel was in fact referring to it having disregarded the secondary consequence of the physical injuries referred to in the claimant’s prescribed information, the statutory construction issue does not arise, as the Panel was clearly correct to apply s 28LJ of the Act.

However, on the assumption that the Panel was in fact referring to the foot injury when it referred to disregarding impairment secondary to a physical injury pursuant to s 28LJ of the Act, the plaintiffs submitted that the reference to “a physical injury” in s 28LJ should be read as being to “the physical injury claimed by the claimant”. The claimant rejected this submission, contending that the language of s 28LJ suggested that the section encompassed any physical injury, and any construction to the contrary required the word “claimed” to be read into s 28LJ of the Act, which should not be done in the absence of a clear legislative intention to that effect.

I accept that any party seeking to contend that words ought to be read into a statute faces a very high bar,[49] and, as I said in Director of Public Prosecutions v Moreno,[50] “… a court must approach the question of whether it is permissible to read words into a statute with extreme caution”.[51] That statement reflects the view expressed by Maxwell P in Ian Street Developer v Arrow International,[52] where his Honour said:

On ordinary principles, however, words cannot be implied into a statute unless those words are essential to make the express provisions workable. Axiomatically, to read words into any statute ‘is a strong thing and, in the absence of clear necessity, a wrong thing’.[53]

[49]See Director of Public Prosecutions v Leys (2012) 44 VR 1; Taylor v The Owners – Strata Plan 11564 (2014) 253 CLR 531; Ian Street Developer v Arrow International [2018] VSCA 294.

[50](2018) 57 VR 1.

[51]Ibid [76].

[52][2018] VSCA 294.

[53]Ibid [56] (omitting citations).

However, while this issue was not the subject of extensive argument, I would lean to the view that, read in its proper context, and having regard to the purpose of s 28LJ and its place in the relevant statutory scheme, the reference to “a physical injury” ought be read as a reference to the physical injury claimed by the claimant, or words to the same effect. My observations in that regard follow.

Division 3 of Part VBA of the Act provides, in effect, a series of instructions to a medical practitioner (or a medical panel, as the case may be) in assessing the impairment of a claimant. Each of s 28LJ and s 28LL(3) instruct the Panel to disregard certain categories of impairments. Section 28LL(3) is uncontroversial, in that it is consistent with the long standing principles of causation in the compensation jurisdiction, that impairments arising from unrelated injuries or causes ought to be excluded from any assessment or impairment arising out of a particular event or series of events which take place in compensable circumstances, reflecting the principle that a wrongdoer is only liable for the damage they caused. However, s 28LJ has a different history and purpose. The instruction by the legislature to exclude the secondary psychological or psychiatric consequences of a physical injury, even where that injury has occurred in potentially compensable circumstances, has been a significant feature of the landscape in the personal injuries jurisdiction in this state since 1996.[54] However, the exclusion of “secondary” psychological consequences of physical injuries is not necessarily consistent with the traditional approach to causation at common law, but rather represents a deliberate and arguably artificial limitation upon the potential exposure of defendants in personal injury actions, by excluding a particular type of injury or impairment when assessing, in the current context, a claimant’s entitlement to damages for non‑pecuniary loss. This is an observation, not a criticism: for the purposes of the current application, what is important is that the term “secondary to a physical injury” has a particular purpose, and the consequences of its application are frequently significant.
[54]A provision to similar effect was enacted by the Accident Compensation (Further Amendment) Act 1996 (Vic).

However, while the term “secondary to a physical injury” has significant work to do, its field of its operation is narrow. That is, the question of whether a psychiatric injury, impairment or symptoms have developed as a consequence of a physical injury, or, whether, as stated by the relevant Minister in the Second Reading Speech to the Legislative Council concerning the Accident Compensation (Further Amendment) Act 1996, there is “… a direct causal link can be demonstrated between [the psychological element] and the event or circumstances in the workplace that gave rise to the serious injury”,[55] is a question that is only particularly relevant in the context of assessing impairment or incapacity in the compensation jurisdiction. While the distinction between primary and secondary psychiatric injuries or symptoms may be of interest to a clinician in diagnosing and treating a patient, the distinction outside the compensation context has no legal consequences for the patient. In the compensation context, the distinction may be very consequential.
[55]Victoria, Parliamentary Debates, Legislative Council, 10 December 1996, 1247.

Accordingly, the reference to secondary psychiatric or psychological symptoms or injury only makes sense or has any practical effect if the physical injury said to be the origin of the psychiatric or psychological impairment or symptoms is an injury which occurred in compensable circumstances, and was the subject of a claim for, in this case, common law damages. In those circumstances, if it was necessary to reach a concluded view on the matter, I would lean into reading the necessary words into s 28LJ of the Act.

My view in that regard is also bolstered by the language of s 28LL(3) of the Act, which contains the legislature’s instructions to the Panel to disregard impairment from unrelated injuries or causes. Section 28LL(3) makes no distinction between secondary and non-secondary injuries, understandably so, because any such distinction is immaterial to the Panel’s task. All injuries and impairment from unrelated causes of whatever kind or however characterised, if they are permanent, must be excluded from the Panel’s assessment of impairment.

There is another distinction here which is of relevance to the current application. Section 28LL(3) requires the Panel to disregard “impairments” from unrelated causes. As observed by McDonald J in Bazouni,[56] impairment means impairment, not “issues”.[57] Further, in s 28LB of the Act, “impairment” means “permanent impairment”.
[56][2019] VSC 407.
[57]Ibid [19].

In contrast, s 28LJ requires the Panel to disregard any “psychiatric or psychological injury, impairment [that is, permanent impairment] or symptoms … secondary to a physical injury”. Therefore, this provision contemplates, indeed directs, the Panel to disregard a wider range of matters than it must disregard under s 28LL(3). By way of illustration, the Panel must disregard psychiatric or psychological symptoms, even if they are not permanent, provided that those symptoms are a consequence of, or secondary to a physical injury.

Accordingly, if, as is likely, the Panel was referring to the psychological distress and symptoms caused by the foot injury as being distress it had disregarded under s 28LJ, then the plaintiffs’ submissions to the effect that the Panel should have referred to and applied s 28LL(3) of the Act rather than s 28LJ of the Act in assessing the claimant’s impairment are correct, as s 28LJ is only concerned with the secondary consequences of the claimed physical injury, and in the current case, there is no claimed physical injury. However, the difficulty with the plaintiffs’ case is that any error on the Panel’s case in that regard is immaterial, because the analytical exercise required of the Panel is substantially the same under both provisions, and therefore, applying either of the sections would lead to the same result, subject to one qualification to which I will refer to in more detail later in these reasons, namely, the requirement that any impairment that is to be disregarded under s 28LL(3) must be permanent impairment.

To illustrate my conclusion, the medical question before the Panel was whether the claimant’s impairment from psychiatric or psychological injuries or symptoms exceeded the threshold. It seems to me that it was completely open on the evidence for the Panel to conclude that the claimant suffered from PTSD and a depressive disorder, and that he was considerably impaired by those conditions. There was also evidence that there were, at least potentially, adverse psychological consequences of the foot injury and possibly the cystic acne condition, which were clearly unrelated to the incident. In the event that the Panel reached a conclusion that the claimant was impacted psychologically by the foot injury, as a matter of logic, that must be an injury “secondary” to a physical injury, in the sense generally understood in this jurisdiction. However, that secondary impairment has an unrelated cause, and thus should have been disregarded in accordance with the instructions in s 28LL(3), if the Panel found that the psychiatric or psychological impairment caused by the secondary consequences of the foot injury was permanent. However, the characterisation of the impairment as a secondary impairment does not alter the impact upon the Panel’s assessment of the claimant’s impairment: its characterisation does not affect its nature or severity.

While the Panel is not permitted to disclose the numerical result of its assessment of the claimant’s impairment by reason of the terms of s 28LN, it must, in order to arrive at its answer to the medical question, have undertaken an arithmetical exercise had it identified any psychological impairment secondary to the foot injury. For the purposes of illustration only, the Panel may have concluded that the claimant’s whole person impairment referable to his psychiatric injuries or symptoms was 25 per cent. The Panel may have also concluded that part of the claimant’s impairment, or the severity of that impairment, was referable to the foot injury, that is, “secondary” to the foot injury, and it would have been open on the evidence for the Panel to do so. If so, the Panel was then required to assign a value to the psychological impairment unrelated to the foot injury, and subtract that from its assessment of whole person impairment from all causes, and, in effect, report upon whether or not the net result exceeds the threshold. This arithmetical exercise, and thus the result, is the same regardless of whether the Panel is disregarding secondary impairment under s 28LJ, or pre-existing or unrelated impairment under s 28LL(3), subject to my qualification below. The cause and characterisation of impairment differ between the two sections, but the analytical process and the result remains the same.

In fact, concluding that regardless of which provision the Panel has reference to in disregarding any psychiatric or secondary impairment secondary to the foot injury would make no material difference to the outcome of the Panel’s consideration and determination of the medical question may be generous to the plaintiffs. I have noted previously the difference between the matters which the Panel must disregard when making an assessment of impairment under s 28LL(3) and s 28LJ. If the plaintiffs’ view about the proper role and application of s 28LJ of the Act is correct (and I agree that it is the preferable view), the Panel was in error in assessing any impairment arising from the foot injury under s 28LJ of the Act. But in doing so, it may well have discounted its assessment of the claimant’s net compensable impairment by a greater amount than it would have if it had disregarded any impairment under s 28LL(3), because s 28LJ required the Panel to also disregard any injury and symptoms referable to the foot injury, not just any impairment and there was no requirement for the Panel to find that those injuries and symptoms were permanent. Indeed, given the Panel’s express finding that there was, in effect, no permanent impairment arising from unrelated causes, it may well be that the Panel considered that the claimant’s psychological condition was affected by the injuries or symptoms related to the foot injury, but that those injuries or symptoms were not permanent.

Accordingly, while I tend to agree with the plaintiffs’ submissions regarding the statutory construction issue, any error on the part of the Panel in assessing the claim and level of impairment under s 28LJ rather than s 28LL(3) was not material, in the sense referred to by the Court of Appeal in Chang v Neill,[58] and the authorities canvassed by the Court concerning the relevance of materiality to any determination of jurisdictional error.
[58](2019) 62 VR 41.

Given my reasons regarding the statutory construction issue, the plaintiffs’ contention to the effect that the Panel’s determination was unreasonable in the legal sense can be dealt with quite promptly. As observed by the Court of Appeal in Sidiqi,[59] that legal unreasonableness is probably an available ground of review in proceedings of the current kind does not alter the position to the effect that the test for legal unreasonableness is a very stringent test.
[59][2021] VSCA 187.

Based upon the materials before the Panel, it would certainly have been open to the Panel to conclude that the claimant had suffered from some impairment secondary to the foot injury, which the Panel was obliged to disregard when making its assessment of the claimant’s impairment suffered as a consequence of the incident. There was evidence that there was some improvement in the claimant’s mental health by early 2018, although the claimant’s submission that the plaintiffs’ submissions in that regard are somewhat overstated has some merit. There was also evidence that the foot injury deprived the claimant of the benefit of the physical activity and social interaction associated with playing football, that the foot injury derailed the claimant’s return to work plans, and that the foot injury caused the claimant significant physical discomfort and emotional distress.

However, it seems to me to have been also open to the Panel to conclude, as it must be taken to have done, given the express reference to s 28LL(3) in the Panel’s reasons, that the claimant suffered no permanent psychiatric impairment as a consequence of the foot injury, particularly given the broad consensus of opinion between the claimant’s treating practitioners and the medico-legal experts regarding the claimant’s psychiatric condition and prognosis, and their relationship to the incident. It could not be said that, absent any other material error, the Panel’s conclusions regarding the medical question was so unreasonable or illogical that no reasonable medical panel would reach the conclusion that the Panel in fact reached. That it did not expressly spell out its reasoning in the Panel’s reasons is not of any great moment: while one might have recourse to the Panel’s reasons in search of a justification for an otherwise aberrant outcome, the Panel’s conclusion was one which was open to it to reach, and, of course, any inadequacy of the Panel’s reasons is not a ground for granting the plaintiffs the relief they seek in this proceeding.

Accordingly, the plaintiffs’ substantive grounds of review have not been made out. I will now turn to the plaintiffs’ contention that there was a denial of procedural fairness on the part of the Panel.

Denial of procedural fairness

There are two limbs to the plaintiffs’ contention that the first plaintiff was denied procedural fairness by the Panel. First, the plaintiffs said that it was apparent from the Panel’s reasons that the Panel failed to have regard to the CBP panel submissions. Secondly, the plaintiffs contend that the Panel, in failing to exercise its powers under s 28LZC(1)(b) of the Act to compel production of the clinical records, deprived the plaintiffs of an opportunity to review and consider the clinical records, to highlight relevant material in the clinical records for the attention of the Panel, and to make submissions regarding the matters identified in the clinical records which supported the plaintiffs’ contention that at least part of the claimant’s psychiatric condition and symptoms could be attributed to matters unrelated to the incident.

With respect to the first limb of the plaintiffs’ argument concerning the Panel’s asserted failure to afford procedural fairness, I accept the claimant’s submission that the plaintiffs have not established the factual basis for their submissions in that regard, such that I can conclude on the balance of probabilities that the Panel failed to have regard to the CBP panel submissions.

I accept that the failure of the Panel to refer expressly to the CBP panel submissions in the Panel’s reasons (while expressly referring to the submissions of the solicitors for the other parties) would raise a concern as to whether the Panel had regard to the CBP panel submissions. However, I am not positively satisfied that the Panel did not read or have regard to the CBP panel submissions.[60] In particular:
[60]Noting that there is no reference to the CBP panel submissions, or any other submissions, in the first reasons.

(a) while there is no express reference to the CBP panel submissions in the main body of the Panel’s reasons, in paragraph 3 of the Panel’s reasons, the Panel stated that it had focussed its opinion with regard to the documents and information in Enclosures A and B;

(b) the CBP panel submissions were incorporated in the covering letter from the first plaintiff’s solicitors referring the medical question to the Convenor, and were referred to in the index to Enclosure A; [61]
[61]Curiously, there is no express reference to the Sparke Helmore submissions in Enclosures A and B, but one can assume the Panel had regard to those submissions given the express reference to those submissions in the Panel’s reasons.

(c) there are numerous decisions in this Court to the effect that the Court is entitled to rely upon, at least in the absence of persuasive evidence or submissions to the contrary, statements made by a medical panel regarding what matters and material it had regard to; [62]

(d) given that the CBP panel submissions were incorporated in the original referral letter, which also contained the prescribed information, it seems inherently unlikely that a medical panel would overlook or ignore a document of that nature; and

(e) the statement in (c) above has to be viewed in the context of the volume of documents provided to the medical panel to review, which does not seem to be particularly voluminous compared to the volume of material provided to other medical panels with which I am familiar. Enclosure A, which appears to largely mirror the documents provided to the first panel, totals some 268 pages, after excluding the first reasons, and Enclosure B, which contained documents which post-dated the first reasons, totalled 61 pages. Accordingly, the total volume of documents before the Panel would barely fill a slim folder. As such, it is improbable that the Panel could not find or may have overlooked the CBP panel submissions, given the relatively modest volume of documents the Panel was required to review as part of its decision-making process.

[62]These authorities are referred to in footnote 37 to the claimant’s written outline of submissions, and include Maribyrnong City Council v Malios [2014] VSC 452 [48]; Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 644 [83]; Haq v Dodgshun [2015] VSC 450; Alcoa of Australia Ltd v Edwards [2016] VSC 630 [23]; Humphries v Allianz Australia Workers Compensation (Vic) Ltd [2016] VSC 761 [42]; Donevski v Hunter [2019] VSC 163 [14]; Johnston v Damjanoski [2019] VSC 272 [11]; and Valspar Paint (Australia) Pty Ltd v Ma [2020] VSC 304 [36].

In any event, even if I am wrong about the question of whether the Panel read and had regard to the CBP panel submissions, and there was a solid factual basis for the plaintiffs’ contention that any failure to have regard to the CBP panel submissions was a denial of procedural fairness which warranted a remedy in the nature of certiorari, I accept the claimant’s submission to the effect that it is difficult to see how any failure to take into account the CBP panel submissions would have materially affected the Panel’s determination and reasons. In particular, having reviewed each of the plaintiffs’ submissions side by side, the plaintiffs’ submission to the effect that the CBP panel submissions went much further than Sparke Helmore’s submissions with respect to the nature and impact of the unrelated matters upon the claimant’s level of impairment is somewhat overstated. While Sparke Helmore’s submissions did not expressly refer to s 28LL(3), or the cystic acne condition, Sparke Helmore’s submissions made it clear that the question of any impairment from pre-existing and/or unrelated causes was a matter to which the Panel should give careful attention.

Further, I agree that it is apparent from the first reasons, the Panel’s reasons, and the other material before the Panel, such as the reports of the medico‑legal experts retained by the parties, that the issue of psychiatric or psychological impairment owing to unrelated causes including both the foot injury and the cystic acne condition was squarely before the Panel, and the issue was expressly dealt with in the Panel’s reasons. The Panel’s reasons made direct reference to both s 28LJ and s 28LL(3) of the Act.

As for the second limb of this ground of review, regarding the Panel’s refusal to exercise its powers under s 28LZC(1)(b) of the Act, I agree with the claimant’s submissions to the effect that the question of whether to seek the clinical records was a matter for the Panel. Not only is the Panel’s power under s 28LZC(1)(b) a discretionary power, the authorities make it clear that a medical panel may inform itself in the manner in which it sees fit.[63]
[63]Section 28LZ(1) of the Act; Sidiqi [2021] VSCA 187 [38].

While I accept the plaintiffs’ submissions to the effect that the clinical records contained material which may have been relevant to the Panel’s consideration of the medical question, some deference has to be given to an expert tribunal such as a medical panel to determine how much or how little information it requires. It is apparent from the reports of the claimant’s treating practitioners and the medico‑legal experts that the treating practitioners had been seeing the claimant regularly over a considerable period of time, and the Panel could be taken to know that there would inevitably be clinical notes recording those consultations. The Panel would also have been aware that the claimant was receiving treatment for the cystic acne condition from a specialist, and thus there were likely to be records of those attendances too. I consider it is safe to assume that if the Panel considered that the clinical records were necessary for the purpose of forming its opinion on the medical question it would have asked for them, whether prompted by the plaintiffs or not.

Further, it does seem odd that the plaintiffs assert that the failure of the Panel to obtain the clinical records denied them procedural fairness in circumstances where the plaintiffs had had the opportunity to inspect and copy the records since late September 2019, and had been invited by the Convenor on at least three occasions in early 2020 to put forward any additional documents or submissions they wished the Panel to consider, but declined to provide any further documents or submissions.

Finally, the plaintiffs’ focus on what was not before the Panel (being the clinical records) ignores the nature and quality of the material which was before the Panel. While I have observed that the volume of documents before the Panel was not large, the reports of the medico‑legal experts in particular were content-rich, being detailed, thorough and considered, and any differences between them regarding the claimant’s history, symptoms, diagnosis and prognosis were matters of degree and emphasis, rather than matters of substance.

The Panel also had the benefit of the first reasons, and its own examination of the claimant, which, as is apparent from the Panel’s reasons, was also detailed and thorough. While this issue was not the subject of submissions by the parties, this does not appear to be a case where the credibility of the claimant was of particular significance, such that the clinical records might well have been of substantial forensic assistance to the plaintiffs and the Panel. The claimant’s psychiatric condition and symptoms, and the accuracy and credibility of his reports of those symptoms does not seem to be seriously in dispute, at least for present purposes. Rather, the key factual issues before the Panel were the extent and significance of any issues unrelated to the incident. The claimant’s family history and relationship issues, the foot injury, and the cystic acne condition were all canvassed in the medical reports, the first reasons, and the Panel’s reasons.

Further, the current case is not one where there is any scope for dispute regarding what precipitated the decline in the claimant’s mental health, or where the injury presented itself as a gradual deterioration over time, such that notes of clinicians would be relevant to when an injury occurred and/or when the claimant reported symptoms. While I accept that the plaintiffs contend that the claimant’s impairment is contributed to by other matters, it could hardly be said that the incident was not a significant cause of the claimant’s psychological distress, even if the claimant’s recovery was impeded by other matters. Further, there was no great dispute between the treating practitioners and the medico‑legal experts regarding the claimant’s symptoms, diagnosis and prognosis such that recourse to the clinical records would assist the Panel to resolve medical issues which were in hot dispute between the parties and the medical practitioners. The clinical records may well have been relevant and useful, but their forensic significance has been significantly overstated by the plaintiffs.

Accordingly, the plaintiffs have not made out this ground of review.

Conclusion

Accordingly, the proceeding will be dismissed. If any party seeks any order other than an order that the plaintiffs pay the claimant’s costs of the proceeding on a standard basis, to be taxed in default of agreement, then that party should notify the other parties and the Court within seven days of the date of delivery of these reasons.

SCHEDULE OF PARTIES

S ECI 2020 03198
BETWEEN:
VISION PRECAST PTY LTD	First Plaintiff
DRW INVESTMENTS PTY LTD	Second Plaintiff
- v -
RYAN ANTHONY GEORGE FERGUSON	First Defendant
ASSOCIATE PROFESSOR ABDUL KHALID	Second Defendant
DR JULIAN FREIDIN	Third Defendant
ASSOCIATE PROFESSOR PETER GIBBINS Convenor of Medical Panels	Fourth Defendant

[2021] VSC 808

8 December 2021