Eastern Health v Neill [2022] VSC 203

2 Ms Mortimer is not entitled to recover damages for non-economic loss unless she has suffered a 'significant injury' as that term is defined in the Wrongs Act 1958 ('the Act').[1] For practical purposes, this requires either a certificate from a psychiatrist or a determination by a medical panel that her degree of impairment when assessed in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) ('A.M.A. Guides'), but as if for Chapter 14 of those guides there were substituted 'The Guide to the Evaluation of Psychiatric Impairment for Clinicians' ('GEPIC'), was at least 10%, being the threshold level.[2]

3 On 14 July 2021, a medical panel, consisting of two psychiatrists, ('the Panel') certified that the degree of Ms Mortimer's psychiatric impairment did satisfy the threshold level. Eastern Health and Dr Agaskar have now applied for an order quashing the Panel's determination. The Panel is, or the members of the Panel are, named as the first defendant. They did not participate in this proceeding.[3]

B. The referral to the Panel and the Panel's conclusion

4 Ms Mortimer served a certificate of assessment of degree of impairment signed by the psychiatrist Dr Ingram in which he certified that the degree of impairment resulting from her injury and symptoms was more than 10%. In an accompanying report, Dr Ingram expressed the view that Ms Mortimer had 'suffered a significant injury and permanent impairment in relation to the death of her sister', and that:

Ms Mortimer is suffering from an atypical grief reaction or bereavement, associated with significant depression. There has also been a slight worsening of her underlying schizophrenia.

5 Eastern Health and Dr Agaskar had earlier arranged for an assessment by the psychiatrist Dr Epstein. Dr Epstein said that Ms Mortimer had a 'partially remitted chronic Paranoid Schizophrenic illness', and that although she had been 'distressed by the factors leading to her sister's death', and had some associated anger and grief, she did not have any 'mental health issues arising from' that death.

6 Eastern Health and Dr Agaskar did not accept Dr Ingram's assessment and referred to a medical panel the following question:

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

7 As would be expected, the referral identified 7 August 2009 as the 'date of incident', the death of Ms Lloyd as 'the incident', and 'psychiatric injury' as the injury that Ms Mortimer claims to have suffered as a result. The Panel was provided with Dr Epstein's report, Dr Ingram's report, reports from Ms Mortimer's treating psychiatrist, and a large amount of other material including records relating to Mr Mortimer's medical history.

After disregarding unrelated impairment, the Panel concluded that the degree of impairment resulting from the psychiatric injury to the claimant alleged in the claim is 10% or more, is permanent and as such does satisfy the threshold level as prescribed by Section 28LB of the Act as amended.

C. Grounds 1, 3 and 4: Did the Panel fail properly to apply s 28LL(3) of the Wrongs Act 1958?

9 Eastern Health and Dr Agaskar's first ground of review is as follows:

1. The Medical Panel erred by:

1. assessing the impairment caused by injury other than the injury alleged in the claim;

2. failing to consider the extent to which the impairment was caused by the injury alleged in the claim.

Particulars

The history relied on for the diagnosis of an adjustment disorder was not limited to the claimant's response to the incident but also to her response to: the treatment of people with a disability by society in general, her sister's management in general, her experiences in institutions as well as being sexually abused, protracted disputes she had had for decades about 'what people have put in files about me', Eastern health applying to have her guardianship of her sister rescinded, perceived excess radiation doses delivered to her pregnant mother 70 years ago as well as 'themes of loss, fixity on themes of transgressions against her, [her sister], her mother and all persons with a disability allegedly against health, social and legal services'. [4]

10 Their third ground is that the Panel erred by 'having regard to injury, impairment or symptoms arising as a consequences of an unrelated injury or impairment' and thus '[h]ad regard to an irrelevant consideration and/or [f]ailed to answer the statutory question'. Their fourth ground is that the Panel 'erred by having regard to impairment arising from injury other than the injury alleged in the claim.' It is convenient to deal with these three grounds together. Each depends, at base, on whether the Panel properly applied s 28LL(3) of the Act_._ That section provides as follows:

For the purposes of this Part, impairments from unrelated injuries or causes are to be disregarded in making an assessment.

11 While Eastern Health and Dr Agaskar accepted that the Panel had disregarded the impairment consequences of her schizophrenia, they contended that the Panel had not disregarded impairment from the other 'unrelated causes', being the other stressors to which she had been subject. Eastern Health and Dr Agaskar similarly submitted that it was not sufficient simply to consider the impairment associated with an adjustment disorder that they found that Ms Mortimer had, because there might have been some impairment existing before her sister's death or that condition was or might have been contributed to by matters other than her sister's death. They disputed, as I understood it, that the Panel by implication had concluded that the adjustment disorder was a new condition.

12 They submitted that these errors were revealed by, among other things, the Panel's identification as relevant to the claimant's current presentation 'many events long-pre-dating those the subject of the claim against the plaintiffs', and the lack of any comparison between Mr Mortimer's condition before and after her sister's death. They submitted that, read as a whole, the Panel 'has simply based its conclusion on the whole of the mental state examination, without disregarding the pre-existing impairment'; it failed to consider whether 'there was any impairment caused by the whole concatenation of incidents before the incident' and then to disregard that impairment.

13 I do not agree that the Panel has failed properly to apply s 28LL of the Act.

(a) reviewed Ms Mortimer's medical history over the years prior to, and subsequent to, Ms Lloyd's death. The review referred to numerous stressful events to which Ms Mortimer had been subjected;

(b) met with Ms Mortimer and took a history of her past psychiatric treatment and stressors, and how she had been affected by her sister's death and by the circumstances surrounding that death;

(c) took a history from her as to her current activities and symptoms;

(d) performed a thorough mental state examination;

(e) expressed its view that Ms Mortimer was suffering from 'pre-existing schizophrenia, with an associated affective component and manifestations of persecutory and grandiose ideation';

(f) expressed its view that she was now also suffering from an 'adjustment disorder with mixed mood disturbance';

(g) referred to s 28LL(3) of the Act, said that the pre-existing schizophrenia was playing a part in Ms Mortimer's current impairment but this was an 'impairment from an unrelated injury or cause' that it was obliged to disregard; and

(h) expressed its conclusion, set out above, that:

After disregarding unrelated impairment, the Panel concluded that the degree of impairment resulting from the psychiatric injury to the claimant alleged in the claim is 10% or more, is permanent and as such does satisfy the threshold level as prescribed by Section 28LB of the Act as amended.

15 The Panel then noted that it had reached a different conclusion to Dr Epstein (who had opined that Ms Mortimer did not have any mental health issues arising from her sister's death).

16 It is apparent from the structure of its reasons that the Panel:

(a) concluded that Ms Mortimer had a pre-existing schizophrenic condition and that Ms Lloyd's death (and the surrounding circumstances) had not worsened her schizophrenic condition (and that in this respect, they disagreed with the opinion of Dr Ingram, who had opined that her sister's death had had aggravated Ms Mortimer's schizophrenic condition);

(b) concluded that Ms Mortimer's also had an 'adjustment disorder with mixed mood disturbance' that was a separate psychiatric condition from her pre-existing schizophrenia;

(c) concluded that Ms Lloyd's death (and the surrounding circumstances) was a cause of Ms Mortimer's adjustment disorder with mixed mood disturbance, and that Ms Mortimer did not have this adjustment disorder before her sister's death; and

(d) concluded that the adjustment disorder was associated with a relevant level of additional impairment that, when assessed in accordance with the GEPIC, met the statutory threshold.

17 The A.M.A. Guides has been designed, for the most part, as a means of measuring a person's impairment, rather than as a means of measuring the effects of any particular injury. A person who has never been injured could well be assessed as having an impairment. Further, the A.M.A. Guides has different chapters dealing with the body's different systems. Thus, a practitioner making 'an assessment of degree of impairment... in accordance with ... the A.M.A. guides', as required by s 28LH(1) of the Act, would, strictly, be required separately to assess each of a person's bodily systems in accordance with the different processes provided, and then to combine each result using a special chart contained in the A.M.A. Guides for that purpose, to reach an ultimate, 'whole body' impairment. One purpose of s 28LL(3) must be to prevent this happening. For example, if someone is claiming for a back injury, there does not have to be a search for any impairment that that person may have in his or her cardiovascular system, and if there is an impairment in the cardiovascular system, that impairment does not have to be assessed.

18 However, its application is more problematic when the unrelated injuries or causes relate to the same bodily system, and perhaps even more so where, as is the case here, the assessment is of psychiatric impairment.

19 The apparent simplicity of the sentence in s 28LL(3) set out in para 10 above, and the use of the word 'unrelated', conceal the complexities that attend any analysis of causation. Take, for example, the often-discussed situation of a person with an egg-shell skull who suffers an injury and associated impairment due to a blow that would not have caused an injury or associated impairment but for that egg-shell skull. Each of the egg-shell skull and the blow is a necessary cause of the impairment. In those circumstances, the impairment results both from the existence of the egg-shell skull and from the blow. If the egg-shell skull were considered to be an 'unrelated' cause, then, on one view, s 28LL of the Act would require the consequential impairment to be disregarded, because it would an impairment 'from' an unrelated cause. But that could not be the legislative intention of s 28LL. In my view, with multiple necessary causes, none should be considered to be an 'unrelated' cause of a consequential impairment.

20 This allows for the possibility that two injuries or causes, acting together, could result in an impairment assessment that can be attributed to each of them, as well as to both of them. In those circumstances, there may be no obligation to 'apportion' the impairment assessment across the two of them having regard in some way to their relative significance.[5] In this respect, it is worth remembering that the obligation to disregard certain impairments does not mean that a medical panel is obliged to 'apportion' an impairment across all possible causes. Apportionment as a concept is specifically referred to, albeit incompletely, in the A.M.A. Guides. It is described in its glossary as 'an estimate of the degree to which each of various occupational or non-occupational factors may have caused or contributed to a particular impairment.' The concept of apportionment thus involves, as the word itself would suggest, the distribution of a total assessed impairment across different causes, with the sum of the distributed impairments equalling the current total impairment. The A.M.A. Guides gives a specific example where someone has a pre-existing spinal impairment. It directs that in those circumstances, if an apportionment 'is needed', the estimated pre-existing impairment be subtracted from the present total impairment.[6] Unfortunately, the A.M.A. Guides does not otherwise identify in what circumstances apportionment is needed. But there is nothing in the A.M.A. Guides or the GEPIC, let alone in s 28LL of the Act, that requires a medical panel assessing a psychiatric injury to form an assessment of the claimant's entire present psychiatric impairment, and then to distribute that percentage across different causes.

21 Likewise, it would be wrong to consider that the Panel has 'to disentangle' an impairment. That language, which was used in oral argument, tends to suggest a divisible injury with divisible causes that can be divided up neatly. At the least, it tends to distract from the statutory language.[7]

22 It follows from the above that the impairment that the Panel was required to assess included the impairment that arose for Ms Mortimer because of Ms Lloyd's death even if other stressors were also a cause of that impairment. Accordingly, the fact that the Panel referred in detail to Ms Mortimer's background and the other stressors to which she had been exposed does not indicate that it failed to apply s 28LL of the Act, but is entirely consistent with it doing so.

23 Indeed, it is apparent that the Panel assessed the consequences to Ms Mortimer of her sister's death in the context of the full history of her relationship with her sister, and in the full context of her history of feeling that her views had repeatedly been disrespected by officials with power, as she says they were here, by reason of her recorded schizophrenic condition. It seems likely that this context was a contributing reason for which, the Panel thought, Ms Mortimer developed her adjustment disorder. But that does not mean that panel failed to comply with s 28LL of the Act; it does not mean that the impairments associated with that psychiatric illness were impairments 'from' an 'unrelated' cause. They were impairments from the incident the subject of the application and fell to be assessed.

24 That said, clearly enough, impairment[8] that existed before Ms Lloyd's death would have to be disregarded when assessing the impairment that could be said to result from Ms Lloyd's death and its surrounding circumstances. An assessment of impairment under the GEPIC requires a Panel to evaluate the extent to which a person's mental functions - their 'intelligence', 'thinking', 'perception', 'judgement', 'mood' and 'behaviour' - have been interfered with. The obligation to disregard pre-existing impairment cannot be side-stepped simply by the making of a fresh diagnosis. For example, someone whose judgement is impaired from an anxiety condition, who then develops as a result of an incident also a depressive condition, will, it may be assumed, continue to have impaired judgement that might be relevant to the diagnosis or evaluation of the depressive condition. But by reason of s 28LL of the Act, the level of impairment associated with the depressive condition cannot be assessed as if the anxiety condition had not already existed. In the context of this case, that means that the Panel were not just obliged to limit their assessment to Ms Mortimer's adjustment disorder, but were also obliged to disregard any measurable impaired mental functioning in the relevant areas that already existed by reason of, or which were otherwise associated only with, Ms Mortimer's pre-existing schizophrenic condition.

25 However, that is what I consider the Panel has done. The Panel stated:

In making an assessment of impairment, the Panel took into account the claimant's history and referral material to determine the level of impairment present prior to the incident which gave rise to the claim and which the Panel ought to disregard in accordance with Section 28LL(3) of the Act as impairment from unrelated causes or injuries.

...

On the basis of the claimant's history, the Panel's findings on examination and on review of the referred material, the Panel considered that it was satisfied that there is evidence of impairment from an unrelated injury or cause which is playing a part in the claimant's current impairment and which the Panel is obliged to disregard in accordance with Section 28LL(3) of the Act. In the Panel's opinion, the unrelated impairment comprises pre-existing schizophrenia with associated affective component and manifestations of persecutory and grandiose ideation.

After disregarding unrelated impairment, the Panel concluded that the degree of impairment resulting from the psychiatric injury to the claimant alleged in the claim is 10% or more, is permanent and as such does satisfy the threshold level as prescribed by Section 28LB of the Act as amended.

26 The first passage set out above indicates that the Panel engaged in a 'before and after' exercise, in that it assessed Ms Mortimer's impairment prior to 'the incident', and disregarded that impairment. And these passages, read together, also show that the Panel did not simply base its conclusion on the whole of Ms Mortimer's current mental state examination, or simply assess Ms Mortimer's adjustment disorder as if she did not have a pre-existing psychiatric condition. There is no reason to doubt the Panel's assertion that it looked for, found, and disregarded any impairment that existed prior to the death of Ms Lloyd, or which otherwise was not associated with that death but was associated instead with her pre-existing condition. I am satisfied, for example, that to the extent that Ms Mortimer's 'affect' was impaired either before her sister's death or otherwise as a result of her schizophrenic condition, the Panel did not have regard to that degree of impaired affect when considering the level of impairment that resulted from her sister's death. Rather, it ascertained the extent to which her sister's death had led to impairments that had not existed beforehand, and formed the view that they amounted to at least a 10% impairment when assessed under the GEPIC.

27 Accordingly, I am not satisfied that the panel erred in the ways alleged by Eastern Health and Dr Agaskar.

28 Eastern Health and Dr Agaskar's second ground of review was that the decision reached by the Panel was legally unreasonable. I am prepared to assume that legal unreasonableness is a ground of review.[9]

29 The Panel's reasons refer to symptoms that pre-existed Ms Lloyd's death, and to the ways in which Ms Lloyd's death had affected Ms Mortimer. Some aspects of the reasons suggest that the impairment that resulted from Ms Lloyd's death was modest. Eastern Health and Dr Agaskar have emphasised those aspects. But some aspects of the reasons suggest that the impairment that resulted from Ms Lloyd's death was significant. For example, Ms Mortimer told the Panel that she was unable to 'come to terms' with the treatment of her sister, and that she 'is angry'. On mental state examination, the Panel noted that there were 'themes of loss' and 'fixity on themes of transgressions', and that Ms Mortimer's insight was only 'partial'. An evaluation of the these matters and their causes and associated impairment is a matter that requires expertise. There is no reason to conclude that the panel's conclusion that Ms Lloyd's death, and its surrounding circumstances, resulted in an impairment of at least 10% was not a conclusion to which an expert body such as themselves could reach or that it was otherwise a product of some irrational reasoning process. Accordingly, this ground of appeal is not made out.

30 The proceeding should be dismissed. I will hear the parties on the question of costs.

DR DIANE NEILL AND DR STEVEN ADLARD CONSTITUTING THE MEDICAL PANEL PURSUANT TO THE WRONGS ACT 1958 (VIC)

[1] Wrongs Act 1958 (Vic) s 28LE.

[2] Wrongs Act 1958 (Vic) ss 28LI(1), 28LF(2)(a)-(b), 28LH(a)(ii), 28LI(1), 28LB (definitions of 'A.M.A Guides' and 'threshold level').

[3] They wrote a letter to the Court in accordance with the principles enunciated in R v Australian Broadcasting Tribunal, ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13.

[4] A minor typographical error has been corrected.

[5] Cf Gennimatas v Transport Accident Commission [2002] VSC 552; (2002) 5 VR 547, 558 [58]. Ashley JA was dealing with a spinal impairment where the A.M.A. Guides specifically refer to apportionment in the case of a pre-existing measurable impairment.

[6] A.M.A. Guides, (4th ed, 1995) 2/10. See also 3/101.

[7] See Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, [19]-[20] (Redlich JA); Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; (2008) 20 VR 605, 608-611 [9]-[22] (Ashley JA).

[8] I note that the word 'impairment' is defined in s 28LB of the Act to mean 'permanent impairment'.

[9] See Sidiqi v Kotsios [2021] VSCA 187, [53]-[58] (Beach, Kaye, Osborn JJA), quoting Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, 572-4 [78]-[83] (Nettle and Gordon JJ), SZMDS (2010) 240 CLR 611, 648 [133] (Crennan and Bell JJ), Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356 (Mason CJ) and Total Transport Pty Ltd v Tasiopoulos [2019] VSC 266, [22] (Richards J), citing Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17 (Neave JA) and Mailton Holdings Pty Ltd v Jussy [2019] VSC 421, [40] (Richards J); Nguyen v Disler [2021] VSC 140, [10]-[14] (Gorton J).