Yacoub v Endeavour Hills Shopping Centre Pty Ltd
[2024] VSC 593
•26 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 05106
| MOUSSA YACOUB | Plaintiff |
| v | |
| ENDEAVOUR HILLS SHOPPING CENTRE PTY LTD | First Defendant |
| and | |
| SVEN TAN | Second Defendant |
| and | |
| ASSOCIATE PROFESSOR ANDREW HARDIDGE | Third Defendant |
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JUDGE: | O’Meara J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 August 2024 |
DATE OF JUDGMENT: | 26 September 2024 |
CASE MAY BE CITED AS: | Yacoub v Endeavour Hills Shopping Centre Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2024] VSC 593 |
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ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel – Plaintiff claimed to have fallen at a shopping centre – Pre-existing and subsequent condition of left knee – Referral of medical question to a medical panel – Panel found soft tissue injury to left knee now resolved – Panel determined that degree of whole person impairment does not satisfy the ‘threshold level’ – Whether panel misconstrued and otherwise erred in respect of s 28LL(3) of the Wrongs Act 1958 (Vic) – Amendola v Coles Supermarkets Australia Pty Ltd [2008] VSC 36, Chua v Lowthian & Ors [2011] VSC 468, Mitchell v Malios [2013] VSC 480, Ingle v Australia Pacific Airports (Melbourne) Pty Ltd & Ors [2021] VSC 50, Vision Precast Pty Ltd & Ors v Ferguson & Ors [2021] VSC 808 and CD v Central Gippsland Health Service [2022] VSC 462 considered – No error – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | SJ Moloney with LBR Allan | Carbone Lawyers |
| For the First Defendant | D Masel SC with R Kumar | Wotton + Kearney |
| For the Second Defendant | No appearance | |
| For the Third Defendant | No appearance |
HIS HONOUR:
AIntroduction
The plaintiff was born in 1944 and is presently 79 years of age.
The plaintiff underwent left total knee joint replacement in August 2011 and right total knee joint replacement in October 2012.
In February 2021, the left prosthetic knee joint developed septic arthritis; which was treated with a knee replacement arthrotomy washout and prolonged antibiotics. The plaintiff used a single crutch to walk before 10 May 2021, and his walking distance was limited.
The plaintiff’s medical history included several chronic illnesses, including osteoarthritis in the right wrist and elbow.
The plaintiff claimed that on 10 May 2021 he tripped over an uneven floor tile at Endeavour Hills Shopping Centre and fell onto his right and left knees and his outstretched right and left hands. His left knee became swollen and he was taken by ambulance to the emergency department at Dandenong Hospital. Severe left knee pain and swelling was noted and imaging was performed. Mild right elbow pain was also noted. The plaintiff was given analgesia and noted to be able to walk ‘more than 10m without issue’. He was discharged from the emergency department with advice relating to management of his left knee.
The plaintiff continued to complain of left knee pain and swelling in the period that followed. Subsequent medical entries are indicative of a degree of improvement, although ongoing pain on weight bearing was noted. In October 2021, worsening left knee pain and swelling was noted following cessation of antibiotics about a month earlier.
In January 2022, the plaintiff suffered a recurrence of left prosthetic knee joint septic arthritis and was readmitted to hospital. The following day his knee was treated surgically with arthrotomy and washout.
In mid-February 2022, the plaintiff underwent first stage revision left total knee replacement. In May 2022, it was noted that the left knee was ‘slightly swollen and slightly sore if he bends it too much’, although it was ‘improving’. At that time he was using ‘one crutch’. In late August 2022, the plaintiff underwent second stage revision left total knee replacement. He took antibiotics ‘throughout’.
On 27 January 2023, Mr Raf Asaid, orthopaedic surgeon, certified that the plaintiff’s ‘left knee injury’ met the threshold of ‘significant injury’ for the purposes of s 28LB of the Wrongs Act 1958 (Vic) (‘Act’).
On 3 May 2023, in accordance with s 28LWE(1) of the Act, the first defendant referred a medical question for determination by a medical panel. In substance, the issue was whether the plaintiff had sustained a ‘significant injury’.[1]
[1]Wrongs Act 1958 (Vic) (‘Act’) ss 28LB (definition of ‘threshold level’), 28LF(1)(b).
The Medical Panel comprised a physician and an orthopaedic surgeon (‘Panel’). The Panel was given an unusually large collection of medical records and other documents and examined the plaintiff on 4 August 2023.
On 12 September 2023, the Panel provided its certificate of determination which states, relevantly –
Question:Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?
Answer:The Panel determined that the degree of whole person impairment resulting from the injury to the claimant alleged in the claim does not satisfy the threshold level.
The certificate of determination was accompanied by the Panel’s written reasons.
B. The Panel’s reasons
The Panel noted that it had formed its opinion with regard to the documents and information provided, together with the history provided by the plaintiff and its findings on examination.
The Panel referred to the incident on 10 May 2021 and noted the following claimed physical injuries –
•Injury to the left lower limb, including but not limited to the left knee, and/or aggravation thereof;
•Injury to the right upper limb, including but not limited to the right elbow and right wrist, and/or aggravation thereof; and
•Scarring and disfigurement.
The Panel confirmed aspects of the plaintiff’s medical history. In that connection, the Panel referred in some detail to the plaintiff’s progress after the incident. That included reference to entries in various medical records.
The Panel recorded the plaintiff’s account of his current symptoms and treatment as follows –
Mr Yacoub reported his current symptoms include moderate left knee pain at the front of the knee, especially when he stands, walks and climb[s] stairs, and made worse occasionally with cold weather. He reported constant left knee swelling. Mr Yacoub reported occasional mild right elbow and right wrist soreness but did not consider this a major issue for him currently.
He lives with his family. His wife assists him with some of his personal activities, such as putting on his pants and occasionally in the shower. He also uses a shower chair. He finds standing makes his left knee pain worse. He is able to sit but only with his knee in a straightened position. He is able to drive in an automatic car but not for long distances. He is unable to bend his knee easily. He finds that the left knee pain is disturbing his sleep.
He manages his left knee pain with daily paracetamol, 4 tablets a day. He uses warm compresses occasionally for his left knee and massages his left knee occasionally. He continues to use a single crutch in his right arm/hand to help with his walking. He reports the left knee pain has slightly improved since the operation in February 2022.
Mr Yacoub was previously seeing a physiotherapist but not currently. He sees his general practitioner every two months. He is not seeing any other specialists or allied health practitioners in regards to this left knee or his right upper limb symptoms. He is not aware of any further surgical procedures that is required for his left knee. He is no longer on any antibiotics for his left knee. He reported the antibiotics were stopped after the second stage left knee replacement surgery. Mr Yacoub told the Panel that there is no further planned surgery for his left knee.
The Panel recorded the substance of the physical examination, including that the plaintiff had been able to walk without his crutch, albeit that he had an antalgic and stiff gait with his left knee in a locked position. With his crutch, the plaintiff demonstrated slightly more left knee flexion.
The plaintiff stood with a normal alignment and demonstrated good extension of his knees.
In respect of the left knee, in particular, the Panel recorded –
On examination of the left knee, the scar was pink, pale, non-tethered, and measured 24cm in length in extension and 6mm wide. There was generalised tenderness on palpation of the left knee joint. There was a mild left knee effusion with no patellar tap evident. There was mild synovitis. There was marked patellofemoral crepitus on movement of the left knee joint. There was no flexion contracture. There was 00 mechanical femoral-tibial alignment. There was some passive hyperextension noted. There was full extension and flexion to 1100. There was no extension lag. There was 60 medio-lateral instability. There was no antero-posterior instability. There was an area of reduced sensation in the distribution of the left infrapatellar branch of the saphenous nerve.
The Panel recorded the relevant substance of a significant number of radiological investigation reports and concluded that no additional investigations were required in order for the Panel to complete its assessment and answer the medical question.
Under the heading ‘Diagnostic conclusions’ the Panel referred to the decision of Osborn J in Chua v Lowthian & Ors (‘Chua v Lowthian’),[2] particularly that –
The Panel must identify an injury potentially caused in the manner alleged in the claim.
The Panel will not be able to do so if it concludes that the claimant’s current impairment is the result of the ordinary progression of a pre-existing condition.
[2][2011] VSC 468 (‘Chua v Lowthian’).
Shortly thereafter, the Panel referred to the decision of Kaye J in Amendola v Coles Supermarkets Australia Pty Ltd (‘Amendola’),[3] particularly that –
Axiomatically, an impairment cannot result from an injury, where there is no injury. It would, in my view, be inconceivable that the legislation contemplated that a Medical Panel was required to assess an impairment notwithstanding that the Panel could not elicit any evidence of injury.
[3][2008] VSC 36 (‘Amendola’).
In that general context, the Panel expressed the opinion that the plaintiff had suffered ‘a soft tissue injury to the left knee, which has now resolved’. In that regard, the Panel stated –
In the Panel’s opinion, there is now no clinical evidence of persisting injury to the left knee.
The Panel considered the claimant is suffering from persistent knee dysfunction in the context of previous and subsequent spontaneous left prosthetic knee septic arthritis episodes following left total knee replacement requiring surgical treatments, which the Panel does not identify as an injury potentially caused in the manner alleged. The Panel considered that there were no pre-existing imaging including skyline views of the left knee for comparison. While the Panel noted the presence of lateral subluxation of the patella lateral subluxation of the patella on skyline view more than one month after the alleged injury date, which the Panel cannot necessarily exclude as due to the alleged injury, the Panel also noted that there was no plan to surgically revise the knee in the period following ‘the incident’ and this was only considered after the recurrence of a septic left knee. The Panel is also of the expert opinion that any soft tissue injury of the left knee, attributable to the incident, would have been addressed at the subsequent surgery of the left knee for a recurrence of left knee septic arthritis in 2022.
Accordingly, while the Panel considered that the claimant has scarring of the left knee, a sensory deficit in the distribution of the left infrapatellar branch of the saphenous nerve, in the context of left total knee joint replacement and surgical treatments for episodes of spontaneous left prosthetic knee septic arthritis, the Panel does not identify this as a potentially compensable ‘injury’, ie a change in circumstances other than that constituted by the ordinary progression of any pre-existing condition.
…
As the Panel is of the opinion that the Claimant is not suffering from any physical injury attributable to the incident, the Panel concluded that the Claimant has no impairment to assess in accordance [with] the American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition) … .
The Panel therefore concluded that the degree of whole person impairment resulting from the physical injury to the Claimant alleged in the claim is not more that 5%.
For completeness, the Panel noted the written submissions of the plaintiff and first defendant respectively.
C. The proceeding
The plaintiff commenced proceedings by originating motion for judicial review dated 30 October 2023.
The originating motion outlines various circumstances, including the following claimed ‘consequential injuries’ –
(a)Significant lateral sublaxation [sic: subluxation] of the left patella (15 June 2021);
(b) Ossification of the distal femoral diaphysis (12 July 2021);
(c) Persistent effusion and built up fluid on the left knee (12 January 2022);
(d)Cortical irregularity anterior medial distal femoral shaft, unchanged in appearance from prior study (28 January 2021 [sic: 2022] – X-Ray);
(e)Swollen painful red hit to left knee since last night, large complex joint effusion within the suprapatellar pouch (28 January 2021 [sic: 2022] – Ultrasound)
(f)Infection in left knee (staphylococcus) on aspiration (28 January 2022) and arthrotomy and wash out;
(g)Further build up of material in the subpatellar [sic: suprapatellar] pouch (10 February 2022 – X-Ray);
(h) Revision knee replacement, first stage, left knee (18 February 2022);
(i) Periosteal based ossification/calcification in relation to the distal femoral shaft and medial latera epicondyles, consistent with calcifies/ ossifies haematoma (4 August 2022, CT Scan);
(j)Knee replacement, second stage, left knee (26 August 2022).
The originating motion states the following grounds of judicial review –
Ground 1: Jurisdictional Error – Wrong Question
12.The Medical Panel, pursuant to s 28LL(3) of the Act, in order to determine whether an impairment exists under the Act, was required to:
(a)determine whether the injuries as suffered in the incident are unrelated to the consequential injuries … ; and
(b)determine whether the consequential injuries … are caused by the injuries as suffered in the incident.
13.In breach of s.28LL(3) and the duty as alleged in 12 (a) hereof, the Medical Panel failed to consider whether the consequential injuries are related to the injuries suffered in the incident.
14.In the premises, the Medical Panel committed jurisdictional error by failing to apply section 28LL(3) of the Act by not considering, as it was obliged to, whether the impairment caused by the consequential injuries arose from the existence of a related impairment constituted by the injuries suffered in the incident. In so doing, the Medical Panel fell into jurisdictional error by failing to carry out its proper statutory function, asking itself the wrong question and not forming a conclusion for which there was a requirement to do so, on available evidence. The consideration of whether the consequential injuries were caused by the injuries suffered in the incident, as performed by the Medical Panel, is not the consideration of whether they were related to one another.
Particulars
(a)The Medical Panel confused or misunderstood its task of assessing the claimed impairment by failing to consider whether the injuries are related to the consequential injuries based upon all available investigations.
(b)The Medical Panel only considered whether the consequential injuries were caused by the injuries suffered in the incident.
15.The penultimate paragraph of the Reasons of the Medical Panel asked the wrong question and thereby exposed jurisdictional error in the making of the Determination. The consequential injuries were never assessed as to whether they were either related or aggravated by the injuries suffered in and caused by incident. Accordingly, the wrong question was asked.
Ground 2: Jurisdictional Error: Asking the Wrong Question
16.In the second paragraph of the Medical Panel’s reasons at page 9 in the assessment of whether there is a potentially compensable injury the Medical Panel applied the quoted test expressed in Chua v. Lowthian [2011] VSC 468 at [161] imposing an “ordinary progression” test concerning a pre-existing injury.
Particulars
The reasons are exhibited to the Affidavit of Samantha Mercuri at Exhibit SM-3.
17.By reason of the formulation of the reasons as alleged in [16] hereof, the Medical Panel applied the incorrect test as those words by the use of the ordinary progression test are not the words of s.28LL(3) and which words bear different meaning.
18.By reason thereof, in the premises, the Medical Panel has asked the wrong question and committed a jurisdictional error.
In that connection, the plaintiff seeks an order in the nature of certiorari quashing the Panel’s determination.
The plaintiff and first defendant each filed and served written submissions and, in the case of the plaintiff, a written reply.
The plaintiff contended that ground 1 was directed to the proper construction of s 28LL of the Act, particularly s 28LL(3).
In substance, the plaintiff contended that the Panel had erred in considering only whether injuries were ‘caused by’ the incident and not, also, whether the claimed injuries were ‘related to’ the incident. Accordingly, counsel submitted that the Panel had ‘only applied half the test found in s 28LL(3) and not all of it’.[4]
[4]Transcript (‘T’) 1-2.
In that regard, counsel contrasted a ‘causal connection’ and a ‘related connection’[5] and explained the submission further as follows –
… the word ‘causes’ and the word ‘from’ in s 28LL(3) does import a need on the part of the panel to identify whether there is an impairment that’s been sustained in the incident which is caused by the incident as the medical panel assesses it as a matter of its expertise as a panel of doctors.
In my submission, that’s the way that sub-section must be read. But equally so, the medical panel must also identify that which I opened …; whether there are injuries that are suffered which relate[d] to the incident as a matter of their medical opinion. At bottom, … ‘relate’ is not cause. ‘Relate’ is a broader word with a broader meaning.[6]
[5]T8.
[6]T13-14.
In that connection, counsel submitted that there was ‘a glaring presence of two alternative tests’ and that ‘each must be looked at’.[7]
[7]T14. In written submissions, the plaintiff said that s 28LL(3) contained a ‘dual test’ which also required that the Panel ‘ascertain whether the claimed injuries are “unrelated” to the incident’: Court Book (‘CB’) 17 [13].
That said, counsel submitted that it was for a court to determine ‘whether those injuries were caused in the traditional sense’ and thereafter referred to authority.
When asked to give an example of an injury related to an incident, but not caused by it, counsel initially said that the question was ‘medical’ and then submitted that –
… there must be a circumstance where for - well, there may be a medical circumstance where a symptom or injury A directly arises within minutes or hours of the incident, and then the consequence of that Injury A may well cause the development of an Injury B by reason of Injury A’s mere existence. If Injury B then arises, then Injury B will relate to the incident because its cause arose from the existence of Injury A. In those circumstances Injury B may or may not have been caused by the incident. Or you could have Injury C or Injury D or Injury E.
And so in this particular case, Your Honour, there was a cascading series of circumstances where a fusion occurred within the knee. There was swelling, there was bleeding and there was subsequent problems with the knee which had to be dealt with over many months. Those problems did not exist prior to the incident of the kind that existed after the incident, and even this panel concluded that one injury may have potentially been caused.
Now, if it was potentially caused, and I have taken issue with the expression ‘potentially caused’, but if it was potentially caused, in my submission it must have been related …[8]
[8]T18.
Counsel for the plaintiff later submitted as follows –
The question that Your Honour asks me, with respect, doesn’t bear on the analysis in any of it. No one at this Bar table and, with respect, in this court can satisfactorily deal with the question of how can something relate but not be caused. The question for this court is, as a matter of assessment of the jurisdictional power exercised, was the question asked? And it is utterly orthodox that if a question which is required to be asked has not been asked, then the jurisdiction’s failed.[9]
[9]T19.
Counsel thereafter advanced submissions in relation to the meaning of the word ‘or’; which was a point addressed further in reply.
As to the central point, counsel for the plaintiff submitted in reply that –
The panel cannot discharge its function by solely doing the causation exercise and not the relation exercise.[10]
[10]T43.
As to ground 2, counsel for the plaintiff described it as ‘the logical extension of ground 1’ and submitted that the Panel was required to ‘apply [s] 28LL(3), not Chua v Lo[w]thian’.[11]
[11]T22-24.
For its part, the first defendant submitted that the Panel had not erred in determining that the plaintiff suffered a soft tissue injury to his left knee that had since resolved.
Senior counsel for the first defendant said that there was ‘logical error’ in the plaintiff’s submissions and endeavoured to explain further as follows –
The negation of a logical proposition, ‘if condition A or B is satisfied, then C follows,’ is not, ‘if proposition A or B is not satisfied, then C does not follow.’
I can illustrate this a number of ways. Let’s take away the language of this - we will come back to the language of the section in a moment. But, to give a simpler example, a school wants its students to get out at lunchtime and play in the sunshine, in the playground. And it has two rules. The first rule is that, unless expressly excluded, students should go into the playground at lunchtime. That’s the equivalent of, the default position is that if an injury is alleged in the claim, it is to be included in the impairment assessment. The default position is, go to the playground at lunchtime.
But that’s subject to there being express direction not to go to the playground. And so we have Rule 2: students are not to go to the playground if it’s raining, or if the temperature is over 40. Where it’s raining and the temperature is 20 degrees, students do not go to the playground, because they’re precluded by the first limb: don’t go to the playground if it’s raining. If it’s not raining, but it's a heatwave – it’s 42 degrees - students don’t go to the playground. Students only go to the playground if both conditions, in the negative, are satisfied: if it's not raining, and not over 40, then students go to the playground.
So the negation of the logical command, ‘If A or B, then C,’ is not ‘If not-A or not-B, then not-C’; it's ‘If not-A and not-B, then not-C.’ That must be so. Otherwise, the express command in [s] 28L[L](3) is being disobeyed, and there would be appellable error.[12]
[12]T29-30.
Later, senior counsel for the first defendant submitted that impairments from unrelated causes and unrelated injuries were both excluded, and that ‘exclusion under one head is sufficient’. In that regard, senior counsel described s 28LL(3) as ‘a single rule with two components’ and said that counsel for the plaintiff were seeking to ‘rewrite it into two rules’.[13]
[13]T44-45.
D. Applicable provisions and principles
The Act precludes the recovery of damages for non-economic loss in a wide range of common law personal injury cases, except where the person concerned has suffered ‘significant injury’ defined in pt VBA of the Act.[14]
[14]Part VBA of the Act was introduced by the Wrongs and Limitation Acts (Insurance Reform) Act 2003 (Vic).
Section 28LE, in div 2 of pt VBA of the Act, states the preclusion in the following terms –
A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.
In that connection, injury to a person (other than psychiatric injury) will be ‘significant injury’ if, relevantly –
a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level.[15]
[15]Act (n 1) s 28LF(1)(b).
Division 3 of pt VBA of the Act is directed to the assessment of impairment by both medical practitioners and medical panels.[16] In particular, s 28LL provides that –
[16]Cf Act (n 1) ss 28LG, 28LZG(1).
28LL 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.
In Mitchell v Malios (‘Mitchell’),[17] Beach J referred to ss 28LL(2) and (3) as follows –
Sub-sections (2) and (3) of s 28LL pose little difficulty. Sub-section (2) requires different physical impairments to be combined using well known combination tables that are based on the idea that a second or succeeding impairment should apply not to the whole, but only to the part that remains after the first and other impairments have been applied. … Sub-section (3) merely excludes unrelated injuries or causes to the injured person’s claim.[18]
[17][2013] VSC 480 (‘Mitchell’).
[18]Ibid [31].
More recently, in City of Melbourne v Neppessen (‘Neppessen’),[19] Niall JA described the function of s 28LL(3) as follows –
122It was not controversial and follows from s 28LL(3) that, in making an impairment assessment, any impairment from an unrelated injury or cause must be disregarded so as to ensure that the impairment assessment relates solely to that resulting from the claimed injury. It would be inconsistent with that obligation for a medical panel to assess the impairment of an injured limb at large without adverting to the potential for impairment to be caused by different injuries or causes. The medical panel is obliged to identify any impairment arising from an unrelated injury or cause, whether pre-existing or subsequent, and ensure that its estimate of impairment disregards any other impairment.
123In identifying the unrelated impairment, and in estimating its extent, the panel is not required to apply the Guides. It is obliged to evaluate the unrelated impairment on the material presented to it and do its best to evaluate the extent to which that impairment is playing a part in the person’s current impairment. The process of attribution does not require the panel to speculate, but requires it to disregard any impairment, either pre-existing or post-dating the injury, which is established by evidence to have resulted from a cause other than the relevant injury.
124The purpose of the assessment is to identify a current or operative loss of function. If a supervening event results in a complete impairment of the relevant part of the body, in the sense of a complete loss of function, then it cannot be said that the initial injury is the cause of an ongoing or operative impairment. Amputation of a limb provides a paradigm example. If a person sustains an injury to the right ankle resulting in a certain level of impairment and subsequently has his or her leg amputated for an unrelated reason, the initial injury is not productive of any ongoing impairment.
125If the supervening event is not of that extent, and there remains some level of impairment that relates to the initial injury, then it is necessary for a medical panel to assess the level of impairment using the Guides but disregard the level of impairment caused by the supervening event. This latter assessment requires some evidentiary basis but is not required to be undertaken in accordance with the Guides. There is no error in using the Guides to assess the overall current level of impairment and then disregarding any non-related impairment.[20]
[19][2019] VSC 84 (‘Neppessen’).
[20]Neppessen (n 19) (citations omitted).
Even more recently, in Vision Precast Pty Ltd & Ors v Ferguson & Ors,[21] Daly AsJ stated –
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.[22]
[21][2021] VSC 808 (‘Vision Precast’)
[22]Ibid [111].
In that context –
(a) a panel does not only consider injuries ‘at large’;[23]
(b) a panel may find that an injury was ‘temporary or transient’ and not ‘extant at the time of examination’ and, in such circumstances, no impairment assessment is made;[24] and
(c) s 28LL(3) requires a panel to ‘reach some conclusion as to the cause of a particular impairment elicited by the Panel’ and ‘must first determine whether the applicant actually suffers from the injury complained of’.[25]
[23]Chua v Newman-Morris [2009] VSC 582, [34]-[40].
[24]Amendola (n 3) [27]. See also Chua (n 2) [149]-[151], [161].
[25]Amendola (n 3) [32].
For completeness, the 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.[26]
[26]Sidiqi v Kotsios [2021] VSCA 187, [32]-[34].
E. Ground 1: the test(s) in s 28LL(3) of the Act
As I have noted, the plaintiff, in substance –
(a) described the present issue as based in the ‘proper construction of s 28LL(3)’;
(b) sought to contrast ‘caused by’ and ‘related to’; and
(c) contended that the Panel had erred in applying only ‘half’ of the test in s 28LL(3).
The applicable principles of statutory construction are not in dispute. A court will start with the ordinary and grammatical meaning of the words taking into account both context and legislative purpose. Context includes surrounding provisions and other aspects of the statute as a whole.[27]
[27]R v A2 (2019) 269 CLR 507, [32]-[33] (Kiefel CJ & Keane J), [124] (Bell and Gageler JJ).
Part VBA of the Act broadly precludes the recovery of damages for non-economic loss unless the person injured has suffered ‘significant injury’.
As has been noted more than once, the context is one in which the person concerned may seek, or is seeking, to recover damages for injury. Accordingly, the stated preclusion attaches to the recovery of damages for non-economic loss ‘in respect of an injury to a person caused by the fault of another person’ unless the injury is a ‘significant injury’.[28] It may be noted that causation forms an element of the stated preclusion.
[28]Act (n 1), s 28LE.
In that context, it is unsurprising that whether or not a person has suffered a ‘significant injury’ will depend upon the degree of whole person impairment ‘resulting from’ the claimed injury.[29] To say that an impairment is ‘resulting from’ a claimed injury is to do no more than state a straightforward relationship of cause (claimed injury) and effect (degree of whole person impairment).
[29]See Act (n 1) ss 28LB (definition of ‘medical question’), 28LF(1)(b).
The provisions of div 3 are directed to the assessment of impairment. As earlier noted, s 28LL, provides, relevantly, that –
28LL 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)…
(3)For the purposes of this Part, impairments from unrelated injuries or causes are to be disregarded in making an assessment.[30]
[30](emphasis added).
It may be noted that –
(a) s 28LL(1) picks up relevant language in earlier and surrounding provisions;[31]
(b) the expressions ‘resulting from’ and ‘arose out of’ are both simple expressions of cause and effect;[32] and
(c) s 28LL(3) gives effect to ‘long standing principles of causation in the compensation jurisdiction … reflecting the principle that a wrongdoer is only liable for the damage they caused’.[33]
[31]See, eg, Act (n 1) s 28LN(2).
[32]As to ‘arising out of’, see Kavanagh v The Commonwealth (1960) 103 CLR 547, 556 and Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310, 315.
[33]Cf Vision Precast (n 21) [111].
In that sense, it is unsurprising that, in Mitchell, Beach J described s 28LL(3) as –
(a) posing ‘little difficulty’; and
(b) operating ‘merely’ to exclude ‘unrelated injuries or causes’.[34]
[34]Mitchell (n 17) [31].
That is, like other provisions in pt VBA, s 28LL(3) is premised in a straightforward relationship of cause and effect: any impairment resulting from things (causes or injuries) unrelated to the claimed injury is to be disregarded.
In that connection, the extent to which a claimed injury and any unrelated cause or injury might be said to sponsor any impairment is a question of fact and degree that an expert medical panel is well placed to consider and determine.
Of course, none of the above is supportive of the presence in s 28LL(3) of ‘dual’ or ‘alternative’ tests of ‘causation’ and ‘relation’.
In that regard, in my view –
(a) the statutory context and an ordinary grammatical reading of s 28LL(3) does not support the submission that it provides for two ‘tests’ of, as the case may be, ‘causation’ and ‘relation’;
(b) the notion that s 28LL(3) ought be construed to give rise to two such tests is not reflected in any of the authorities to which I have referred (which, I might add, have been decided over a period of many years since the introduction of pt VBA into the Act);
(c) in a compensation context of the present kind, it is not clear how or why it would be of any utility to posit a test of ‘relation’ that is, presumably, in some way different to that of ‘causation’;
(d) in that regard, and without meaning to be in any way disrespectful to the argument of counsel for the plaintiff, it is hard to imagine that the legislature was intending to give effect to two such ‘tests’ when counsel had so much difficulty describing any practical difference between them; and
(e) in that connection, the example ultimately proffered by counsel in argument posited a ‘cascading series of circumstances’ culminating in the proposition that an injury was ‘potentially caused’ by an incident which, to me, leaves unanswered the question of whether the incident caused the injury, or is related to it.
I should say that part of the argument of counsel for the plaintiff was directed to passages in the reasoning of Cavanough J in Ingle v Australia Pacific Airports (Melbourne) Pty Ltd & Ors[35] and Croucher J in CD v Central Gippsland Health Service[36] (‘CD’).
[35][2021] VSC 50, [50]-[55]. See also T16-17.
[36][2022] VSC 462, [205]-[206], [234]-[240]. See also T36-37.
For my part, however, I can discern no part of the reasoning in either case which affords any real support to the proposition that s 28LL(3) should be taken to state two ‘tests’. Indeed, in CD, Croucher J referred to s 28LL(3) as making it ‘abundantly clear that matters of causation are within the remit of a panel’.[37]
[37]Ibid [218].
In that context, it will be evident from the earlier references to critical parts of the Panel’s reasons that it understood the history and clinical course of the plaintiff’s left knee before and after the alleged incident on 10 May 2021.
In that regard, the Panel seems to have referred to all or most of the sources from which the originating motion has derived what was there described (rather tendentiously) as the ‘consequential injuries’.
It that general setting, the Panel addressed itself to the question of whether, at the time of examination, there was ‘persisting injury to the left knee’.[38]
[38]CB 67.
In that sense, the Panel ultimately reasoned no differently to the panel considered by Kaye J in Amendola.[39] Indeed, the Panel referred directly to Amendola, as well as the reasoning of Osborn J to similar relevant effect in Chua v Lowthian.[40]
[39]Amendola (n 3).
[40]Chua v Lowthian (n 2).
In so reasoning, the Panel twice used the expression ‘attributable to the incident’ when considering whether there was ‘injury’.[41] That expression is indicative of a consideration by the Panel of whether there was, in fact, a relationship between the stated cause and any effect. In short, the Panel directed itself to the question of whether there was a causal relationship between the incident and ‘any physical injury’.
[41]CB 67.
In that context, the Panel expressed its expert opinion that –
(a) the plaintiff had suffered no more than a ‘soft tissue injury to the left knee, which has now resolved’;
(b) accordingly, the plaintiff was ‘not suffering from any physical injury attributable to the incident’ and therefore ‘has no impairment [relevantly] to assess’; and
(c) therefore, ‘the degree of whole person impairment resulting from the physical injury to the Claimant alleged in the claim’ was not more than the threshold level.
In the course of the passage of reasoning to which I have referred, the Panel directly considered whether lateral subluxation of the patella detected on radiological investigation was ‘due to the alleged injury’.[42] The Panel acknowledged the possibility – as it said that it could not ‘necessarily exclude’ it – but also pointed to the absence of any plan to surgically revise the knee in the same period and the fact that revision was ‘only considered [later] after the recurrence of a septic left knee’. In context, the Panel plainly considered whether any such pathology was ‘attributable to the incident’, but concluded that it was not.
[42]Ibid.
In so reasoning, in my view, the Panel did not misconstrue or fail to comply with any relevant provision of the Act, including s 28LL(3).
In light of the above, ground 1 must be rejected.
F. Ground 2: alleged application of an ‘incorrect test’
As I have noted, counsel for the plaintiff described ground 2 as directed to an alleged error of the Panel in referring to or applying Chua v Lowthian,[43] rather than s 28LL(3).
[43]Chua v Lowthian (n 2).
It will be evident from what I have already said that the Panel did not err in construing and applying the relevant provisions of the Act, including s 28LL(3).
It addition, it is hard to accept that the decision of the Panel should be considered to have erred in referring to Chua v Lowthian when that decision was relied upon in the plaintiff’s own written submissions to the Panel.[44]
[44]CB 4699.
It follows that ground 2 must also be rejected.
G. Conclusion
The proceeding must be dismissed. I will hear from counsel concerning the form of final orders.
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