Plaintiff v Defendants

Supreme Court of Victoria|2013-05-22|Before: KYROU J

ADMINISTRATIVE LAW - Judicial review - O 56, Supreme Court (General Civil Procedure) Rules 2005 - Medical panel - Alleged errors of law on the face of the record - Alleged misconstruction and misapplication of pt VBA of the Wrongs Act 1958 ss 28LL(3), 28LZG(4) - Alleged failure to take into account relevant considerations - Findings allegedly not supported by any evidence - No evidence ground of review upheld.

1 On 10 December 2008, the plaintiff commenced a proceeding in the County Court ('County Court proceeding') against the State of Victoria and three teachers who worked at the plaintiff's former secondary school, Neerim District Secondary College ('School'), seeking damages arising out of an incident that occurred at the School on 8 November 2005 ('2005 incident'). The State of Victoria is the first defendant and the three teachers are the second, third and fourth defendants (collectively 'State defendants').

2 The 2005 incident involved the suspension and subsequent expulsion of the plaintiff from the School due to his alleged involvement in the tying of a fellow student with duct tape and rolling that student down a grassy embankment. The plaintiff claims that he was falsely accused of participating in those events and that, as a result of the false allegations and the suspension and subsequent expulsion, he suffered shock, nervousness and anxiety ('Injury').

3 The relief sought by the plaintiff in the County Court proceeding includes damages for non-economic loss in respect of the Injury. Given the events that have occurred, the effect of pt VBA of the Wrongs Act 1958 ('Act') is that the plaintiff cannot recover such damages unless a medical panel determines that the Injury has resulted in a permanent psychiatric impairment that satisfies the 'threshold level', that is, more than 10%.[1]

4 The State defendants referred the following medical question to a medical panel comprising Dr Diane Neill and Dr James Carson ('Medical Panel'):

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

5 On 15 October 2012, the Medical Panel answered the medical question by way of the following determination under s 28LZG(2)(a) of the Act ('Determination'):

The Panel determined that the degree of psychiatric impairment resulting from the psychiatric injury alleged in the claim does not satisfy the threshold level.

6 In deciding whether the Injury satisfied the threshold level, the Medical Panel considered and disregarded any psychiatric impairment resulting from physical injuries the plaintiff sustained in separate assaults in 2008 and 2009.

7 The effect of the Determination was that the plaintiff was precluded from pursuing his claim for damages for non-economic loss.

8 The plaintiff has commenced this proceeding against the State defendants and the Medical Panel as the fifth defendant, seeking judicial review of the Determination under O 56 of the Supreme Court (General Civil Procedure) Rules 2005. The plaintiff alleges that the Medical Panel misconstrued the Act, failed to take into account relevant considerations and made findings in the absence of any evidence to support those findings.

9 The Medical Panel did not participate in the hearing in accordance with R v Australian Broadcasting Tribunal; Ex parte Hardiman.[2]

10 For the reasons that follow, I have concluded that the Medical Panel erred by finding that the 2008 assault resulted in a psychiatric impairment when there was no evidence to support this finding. Accordingly, the Determination must be set aside and the medical question must be redetermined.

11 The facts set out at [12] to [30] below are based on documents that were provided to the Medical Panel.

12 After the plaintiff completed his secondary education in Victoria, he moved to the Gold Coast and enrolled in a course at Griffith University.

13 In December 2008, the plaintiff was evicted from the Cocktails and Dreams Nightclub in Surfers Paradise ('Nightclub') by a bouncer, resulting in a fractured arm ('2008 incident').

14 On 5 December 2009, while the plaintiff was at the Nightclub, he was punched in the jaw by another patron, resulting in his jaw being fractured in three places ('2009 incident'). The plaintiff was taken to the Gold Coast Hospital and on the following day, he underwent an operation described as 'open reduction and internal fixation (ORIF) of the mandible'.

15 On 13 January 2010, Dr Anthony Crombie of the Gold Coast Hospital completed a police statement in which he stated that the injuries sustained by the plaintiff in the 2009 incident were consistent with the definition of 'grievous bodily harm' in the Criminal Code (Qld).

16 On 6 July 2010, the plaintiff completed an application form for financial assistance under the Victims of Crime Assistance Act 2009 (Qld) in respect of the 2009 incident ('Crime assistance application'). In the form, the plaintiff stated the following about why he was entitled to additional financial assistance on the basis that his circumstances were exceptional:

I suffered a significant assault at Cocktails and Dreams Nightclub. The offender attacked me from behind striking the left hand side of my jaw. Since being king hit I have feared to go out with friends as I don't want my safety jeopardised once more. The thought of another attack has caused a great deal of grief, fear and caution. As a result I have had to change my whole lifestyle, simply because I'm paranoid I could be struck again from behind. Consequently I'm seriously concerned about my security especially considering the attacker isn't known to me, and I fear if they see myself again this time it could be life threatening. Considering I have lived in Surfers Paradise for some time and play AFL football in the local area the offender could easily ascertain who I am and where I live from several sources. This further intensifies my fear of my personal well being and security following the assault.[3]

17 On 25 July 2010, the plaintiff wrote to the Queensland authority that was handling his Crime assistance application, about the delay that was taking place. In the letter, the plaintiff stated that the delay was 'affecting [him] as the longer [his application was] put on hold the more adverse effects [it was] having on [him].'

18 On 6 January 2011, the plaintiff had an initial consultation with Dr Mohammad Javadi of the Labrador Park Medical Centre in Queensland. The plaintiff saw Dr Javadi again on 12 and 13 January 2011 and on subsequent occasions. Dr Javadi prepared notes for each consultation.

19 In his notes for the consultation on 6 January 2011, Dr Javadi stated that the plaintiff presented at the Gold Coast Hospital on 5 December 2009 after an alleged assault injury and that 'counselling [was] provided'.

20 In his notes for the consultation on 12 January 2011, Dr Javadi stated under the heading 'Problem':

ANXIETY DEPRESSION

history of assault injury in Dec 2009

depressed mood, anhedonia,

anxiety, difficulty getting to sleep, low-quality sleep, impaired concentration

Dr Javadi also stated that he provided 'extended counselling'.

21 On 11 January 2011, the plaintiff prepared a letter addressed 'To Whom It May Concern' in support of his Crime assistance application. In the letter, the plaintiff stated:

Hopefully now this can be settled and I can achieve some closure on these injuries and the consequences it has caused for me and my family. My doctor has also referred me to see a psychologist to help deal with some of the trauma and detriment these injuries have inflicted on me mentally and socially.

22 On 13 January 2011, Dr Javadi prepared a referral letter to a psychologist, Ms Angela Elia of the Alegna Health Centre, in which he sought her opinion regarding the plaintiff's 'mixed depression and anxiety'. Enclosed with the letter was a 'GP Mental Health Care Plan Assessment' which described the 'Presenting Problem' as:

ANXIETY DEPRESSION

history of assault injury in Dec 2009

depressed mood, anhedonia,

anxiety, difficulty getting to sleep, low-quality sleep, impaired concentration

23 The plaintiff saw Ms Elia on 22 February 2011, 9 and 22 March 2011, and 7, 14 and 27 April 2011. Ms Elia prepared notes of each consultation. The notes deal extensively with the 2005 incident and its effects.

24 On 15 April 2011, the plaintiff completed a 'Background History Schedule' for Ms Elia. In the Schedule, under the heading 'Medical History', and in response to the direction to 'Describe any serious illnesses, accidents, diseases or medical conditions of which you are aware', the plaintiff wrote:

Broken arm: a nightclub bouncer broke my arm at 20. Key reason being I refused to leave the club when he wrongly accused me of being involved in a fight.

Broken jaw: Was assaulted in a nightclub by a man trying to attack girl, when I said what he was doing was wrong, his friend king hit me from behind breaking my jaw in three places.

Dislocated shoulder: My shoulder has been dislocated ten times due to football and cricket.

25 At the request of the plaintiff's solicitor, on 18 May 2011, Ms Elia prepared an expert report on the effects of the 2005 incident on the plaintiff, for use in the County Court proceeding. She diagnosed the plaintiff as suffering a Post Traumatic Stress Disorder as a result of the 2005 incident. In her report, Ms Elia stated that the plaintiff 'reported no previous psychological or physical injuries.' The report did not mention the 2008 or 2009 incidents.

26 On 7 June 2011, the plaintiff was awarded $2,610 pursuant to his Crime assistance application. That amount comprised $2,250 for 'special assistance', $300 for 'damage to clothing' and $60 for 'medical expenses'. The award was made on the basis that the plaintiff had suffered grievous bodily harm.

27 On 15 August 2012, the plaintiff's solicitor wrote to Dr Ian Jackson, psychiatrist, seeking a certificate of assessment of the degree of the plaintiff's impairment resulting from the 2005 incident. The documents that were provided to Dr Jackson included the medical records of Dr Javadi and Ms Elia and also documents relating to the Crime assistance application. In his certificate dated 22 August 2012, Dr Jackson described the plaintiff's injury as '[a]djustment disorder with mixed anxiety and depressed mood' and certified that the degree of impairment exceeded 10%.

28 Dr Jackson prepared a report dated 20 August 2012. In that report, Dr Jackson described the 2005 incident and the treatment that the plaintiff had received in relation to the Injury. He stated the following in relation to the plaintiff's continuing symptoms:

He has pervasive anger with frustration and lowered mood. This includes angry outbursts and behaviours particularly in the face of unfair and unreasonable authority as he sees it. This has included a fractured arm and, 6 months later, a broken jaw, in nightclub incidents (as in the documentation I was sent). He has loss of sociability with inability to maintain a major relationship.

29 In his report, Dr Jackson expressed the following opinion:

Brodie Hatswell presents with significant depressive and anxiety symptoms from at least the time of his move to Queensland. This is significantly, and clearly, the product of the matters to hand, particularly the subsequent fracturing of his relationships and functioning in his local small community.

...

Brodie Hatswell is suffering from a now chronic Adjustment Disorder with Mixed Anxiety and Depression. This remains significantly and materially related to the 8.11.05 incident.

30 The State defendants did not accept Dr Jackson's certificate of assessment. As required by s 28LWE(1) of the Act, they referred the medical question to the Medical Panel.

Relevant provisions of the Wrongs Act

31 Section 28LE of the Act precludes the recovery of damages for non-economic loss in respect of an injury caused to a person by the fault of another person, unless the person injured 'has suffered significant injury.'

32 The term 'significant injury' is defined in s 28LF(2) of the Act. For present purposes, it means a determination by a medical panel 'that the degree of impairment resulting from the injury satisfies the threshold level.'[4]

33 The 'threshold level' for a psychiatric injury is a permanent impairment of more than 10%.[5]

34 Sections 28LH and 28LI provide that an assessment of the degree of impairment under pt VBA must be made in accordance with The Guide to the Evaluation of Psychiatric Impairment for Clinicians ('GEPIC').

35 Section 28LL(3) provides that 'impairments from unrelated injuries or causes are to be disregarded in making an assessment.'

36 Division 5 of pt VBA, which comprises ss 28LY to 28LZL, sets out the powers and procedures of medical panels. Section 28LZ(1) provides that a medical panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit. Section 28LZ(2) provides that a medical panel must act informally without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows. Section 28LZC(1) provides that a medical panel may ask a claimant to meet with the panel and answer questions and to submit to a medical examination by the panel.

37 Section 28LZG of the Act states the following in relation to a determination by a medical panel of a medical question that is referred to it:

(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);

...

(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. ...

38 A determination by a medical panel is conclusive and no appeal lies from the determination.[6] However, a determination is amenable to judicial review.

Guide to the Evaluation of Psychiatric Impairment for Clinicians

39 GEPIC provides that the assessment of psychiatric impairment is based on the systematic application of empirical criteria and takes into account both the diagnosis and other factors unique to the individual. It also provides that it is relevant to consider motivation, and to review the history of the illness as well as the treatment and rehabilitation methods. These considerations are summarised in five principles. Principle 5 is as follows:

A careful review must be made of the treatment and rehabilitation methods that have been applied or are being used. No final judgement can be made until the whole history of the illness, the treatment, the rehabilitation phase, and the individual's current mental and physical status and behaviour have been considered.

40 On the day that the Medical Panel made the Determination, 15 October 2012, it published reasons for the Determination ('Reasons').

41 In the Reasons, the Medical Panel stated that it examined the plaintiff for one hour and 50 minutes on 20 September 2012.

42 The Reasons recorded in considerable detail the plaintiff's version of the events surrounding the 2005 incident and the effect that he said that the incident had on his mental health.

43 The Reasons set out the following information that the plaintiff provided to the Medical Panel about the 2008 and 2009 incidents.

The Claimant told the Panel that he suffered a fractured left arm in December 2008. He said that he was with his girlfriend at Cocktails and Dreams nightclub and a fight broke out on the dance floor and he said a bouncer tried to throw him out and grabbed him by the arm and caused the fracture when the Claimant pushed him away. He said that he was attempting to break up the fight and said he was not part of it.

He said that on 5 December 2009 he suffered fracture of his mandible at Cocktails and Dreams nightclub. When asked about the cause of this he said, 'it was such a minor thing, I don't remember'. The Panel asked the Claimant for further details regarding the fractured mandible and he continued to state, 'I don't remember' he said, 'I haven't thought of these incidents for two years' and said that he had never been back to Cocktails and Dreams where both incidents occurred and said, 'I now go to the pub'.

44 The Reasons concluded with the following observations and opinions:

There was no obvious disorder of concentration and although the Claimant denied all memory related to the assault, which occurred in the nightclub when he sustained a fractured mandible in 2009, there was no evidence of any other memory disorder. The Panel noted the Claimant's signed statement regarding this incident and also the fact that he had been the recipient of victims of crime payment. The Panel also noted two other statements related to this incident which were signed by the Claimant in which he states, 'my Doctor has also referred me to see a psychologist to help to deal with some of the trauma and detriment these injuries have inflicted on me mentally and socially' dated 11 January 2011, and another statement by the Claimant of December 2009 relating the event of the assault. The Claimant also told the Panel that he had no recollection of a letter written by him to Victim Assist Queensland dated 25 July 2010 in which he again states 'it is also affecting me, as the longer this is put on hold the more adverse effects it's having on me'.

The Panel concluded that the Claimant is suffering from an adjustment disorder with depressed and anxious mood.

The Panel considers that due to the nature of the psychiatric injury and the duration of the symptoms, the Claimant's psychiatric condition has stabilised and is permanent.

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 [Act].

In making an assessment of impairment, the Panel took into account the claimant's history and referral material to determine the level of impairment that may have been present prior to or occurred following the incident which the Panel considers are from unrelated causes or injuries and which the Panel ought to disregard in accordance with Section 28LL(3) of the [Act].

...

The Panel is satisfied that the information in the history and clinical findings are capable of providing sufficient information to estimate a psychiatric impairment unrelated to the incident, associated with the Claimant's physical and emotional injuries sustained in 2008 and 2009.

The Panel considers this impairment can be estimated in accordance with the Criterion in GEPIC for which the Panel considers is from unrelated causes or injuries and are not potentially compensable injuries.

The Panel therefore considered that it was appropriate to disregard the estimated unrelated impairment in accordance with Section 28LL(3) of the [Act].

The Panel concluded that the degree of whole person impairment resulting from the psychiatric injury to the claimant is permanent, but is not more than 10%.

The Panel considers that it has assessed psychiatric impairment arising from the Claimant's psychiatric injuries alleged in the claim in accordance with GEPIC and considers that further explanation or detailed reasons of the basis on which it has calculated the impairment is prohibited by Section 28LZG(4) of the [Act].

...

The Panel also noted the assessment of Dr H Jackson dated 20 August 2012.

Legal principles relating to judicial review of decisions of medical panels

45 The meaning and effect of the phrase 'impairments from unrelated injuries or causes are to be disregarded' in s 28LL(3) of the Act are important issues in the present case. That phrase also appears in s 91(7) of the Accident Compensation Act 1985 ('AC Act').

46 In Alcoa Holdings Ltd v Lowthian,[7] J Forrest J considered s 91(7)(c) of the AC Act in the context of the fourth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment ('Guides') and the two-step procedure in cl 9 of s 3.3f of the Guides for apportioning impairments resulting from unrelated injuries or causes. His Honour set out the following principles:

[T]he statutory command to the Panel is to evaluate only the impairment related to the compensable injury and to put to one side any impairment produced by non-related injuries or causes. Accordingly, if the evidence establishes a pre-existing impairment from an unrelated injury or cause, then the Panel is obliged to consider that impairment and to ensure its estimate of the current impairment disregards any pre-existing impairment (or for that matter, any subsequent impairment flowing from an unrelated injury or cause).

... I do not accept ... that the evaluation of [an] unrelated impairment must be carried out applying the tests laid out in the Guides.

The Act ... does not permit any discretionary evaluation. The previous impairment from an unrelated injury or cause must be disregarded. Nor does the Act insist upon the historical information and previously compiled medical data being 'verified as being accurate'. Rather, it obliges the Panel to evaluate the unrelated impairment on the material presented to it.

In engaging in its statutory task the Panel must do the best it can to evaluate the extent to which impairment from the unrelated injury or cause is playing a part in the worker's current impairment. If the evidence enables it to determine the extent of the present impairment and that of the pre-existing impairment, then it must make allowance for the pre-existing impairment.

...

... it may be that the Panel using its collective expertise and knowledge simply attributes an estimate of the compensable injury related impairment after taking into account (and disregarding) the non-related contribution to the impairment.[8]

47 J Forrest J stated that, in summary, the AC Act and the Guides require the following approach where there is evidence of a pre-existing impairment of the same body part:

(a) if the evidence is sufficient to demonstrate the existence of a pre-existing impairment from an unrelated injury or cause, then the Panel must, as best it can, determine the extent of that impairment so it can be disregarded and evaluate the impairment related solely to the compensable injury;

(b) the Panel is required to apply s 91(7)(c); this does not necessitate the application of clause 9 in evaluating the pre-existing impairment. Indeed, in some cases, to utilise the clause 9 criteria (and its inbuilt evidentiary requirements) would result in error; and

(c) in an appropriate case, the two-step approach provided for in clause 9 may be appropriate, provided that in conducting the evaluation the assessment complies with the obligation imposed by the Act. There is no discretion in the Panel (as clause 9 would seem to convey) to ignore any pre-existing impairment.[9]

48 In Chua v Lowthian,[10] Osborn J quoted certain passages from Alcoa, including the summary of the approach set out at [47] above, and accepted that similar principles substantially apply to the interpretation of s 28LL(3)[11]f the Act.11 His Honour made the following statements which are apposite in the present case:

[T]he impairment to which s 28LL(3) refers is by definition permanent impairment ...

...

In my view, the Act does not require the Panel to assume that a pre-existing condition caused a permanent impairment when the evidence does not demonstrate that it did so. It does not require the Panel to speculate. It requires the Panel to disregard pre-existing impairment which is established by evidence to have resulted from a cause other than the relevant injury.

...

[A]ny assessment of pre-existing impairment must be evidence based. It cannot simply be speculative. The Panel must have an evidentiary basis on which it can be positively satisfied of a pre-existing impairment which it then disregards. The Panel is not bound by rules or practices as to evidence but it must act on the basis of evidence of some sort.

...

I accept that it was not open to the Panel to reason that simply because no assessment could be made in accordance with the Guides it followed that no valid estimate of pre-existing impairment could be made. The conclusion that the Panel had insufficient information to assess any pre-existing impairment of the left lower leg and ankle in accordance with the Guides did not of itself justify the conclusion that there was no pre-existing impairment to be disregarded in accordance with s 28LL(3) of the Act. I accept for the reasons I have already stated that s 28LL(3) imposed an overriding obligation upon the Panel. [12]

49 In my opinion, Osborn J's observations about an impairment from a pre-existing cause apply equally to an impairment from a subsequent cause.

50 In H J Heinz Company Australia Ltd v Kotzman,[13] I stated the following in relation to an application for judicial review of a determination of a medical panel on the ground of jurisdictional error:

A medical panel is amenable to judicial review. Its opinion can be quashed if it makes a jurisdictional error. It does not commit a jurisdictional error merely because it employs illogical reasoning. However, if its reasoning demonstrates that it asked itself the wrong question, took into account irrelevant considerations or failed to take into account relevant considerations, then it commits a jurisdictional error. What factors a medical panel is bound to consider in forming its opinion is determined by construction of the statute conferring its jurisdiction ...[14]

51 In the present case, the grounds of review include an allegation that the Medical Panel failed to take into account a relevant consideration. Minister for Aboriginal Affairs v Peko-Wallsend Ltd[15] makes it clear that this ground can only be made out if a decision-maker fails to take into account a consideration which he or she was lawfully bound to take into account.[16] The considerations that a decision-maker is bound to take into account are not necessarily confined to the considerations (if any) which are expressly set out in the applicable legislation. The subject-matter, scope and purpose of the legislation may, by implication, require the taking into account of other considerations.[17]

52 The grounds of review in the present case also include an allegation that the Medical Panel made findings in the absence of any evidence to support them. It is an error of law to make a finding of fact or to draw an inference for which there is no evidence. An inference which is the product of illogical reasoning will not amount to an error of law, provided that there was some basis for an inference to be drawn - that is, the particular inference was reasonably open.[18]

53 In his amended originating motion, the plaintiff relied on the following grounds of review:

The [Medical Panel] failed to provide the adequate reasons required by the Deputy Convenor's directions under ... s 28LZ [of the Act], which amounted to an error of [law on] the face of the record.
The [Medical Panel] erred in law when it determined that subsection 28LZG(4) of the [Act] precluded it from providing further explanation or detailed reasons concerning the basis for its calculation of the plaintiff's impairment, which amounted to an error on the face of the record.

3A. The [Medical Panel] failed to consider a relevant consideration in that it failed to consider the following material that was before it:

(a) The report of Ms Angela Elia, psychologist, dated 18 May 2011;

(b) The clinical notes of Ms Elia concerning the plaintiff;

(c) The records of the Labrador Park Medical Centre concerning the plaintiff.

3B. The [Medical Panel] erred in law when concluding that it was able to estimate a psychiatric impairment unrelated to the plaintiff's 2005 injury associated with injuries in 2008 and 2009, on the basis that:

(a) in doing so the [Medical Panel] misapplied s 28LL(3) of [the Act]; or

(b) the [Medical Panel] made the conclusion in the absence of evidence.

54 The plaintiff conceded that Ground 2 cannot succeed in the light of the decision of the Court of Appeal in Colquhoun v Capitol Radiology Pty Ltd.[19] However, the plaintiff did not formally abandon Ground 2 because Colquhoun is the subject of an application for special leave to appeal to the High Court.

55 In Colquhoun, the Court of Appeal held that directions given by the Convenor of Medical Panels under s 28LZ(4) of the Act requiring medical panels to provide reasons for their determinations were beyond power and, accordingly, medical panels were not under a legal obligation to provide such reasons.[20] The Court of Appeal also held that, as medical panels could not be compelled to provide reasons, the inadequacy of any reasons provided by them voluntarily was not a valid ground of judicial review.[21]

56 The plaintiff's concession was correct. Accordingly, Ground 2 is not made out.

Ground 3: Misconstruction of s 28LZG(4) of the Wrongs Act

57 It will be recalled from [37] above that s 28LZG(4) of the Act requires a determination of a medical panel to state whether the degree of impairment resulting from the relevant injury satisfies the threshold level, but precludes a medical panel from stating the specific degree of impairment. It will also be recalled from [44] above that, in its Reasons, after stating that it had assessed the Injury in accordance with GEPIC, the Medical Panel stated that 'further explanation or detailed reasons of the basis on which it has calculated the impairment is prohibited by Section 28LZG(4) of the [Act].'

58 The plaintiff submitted that the Medical Panel misconstrued s 28LZG(4). According to the plaintiff, that section merely prohibits a medical panel from directly or indirectly disclosing the particular percentage assigned by it to a claimant's degree of impairment but does not otherwise preclude the panel from explaining how it arrived at its determination. The plaintiff contended that the Medical Panel's misconstruction of s 28LZG(4) meant that it failed to provide a proper explanation of the basis for its conclusion that the plaintiff's impairment did not exceed the threshold level. As the Medical Panel's error is apparent on the face of the Determination,[22] so it was said, the Determination should be set aside.

59 The State defendants submitted that the Medical Panel did not misconstrue s 28LZG(4) and that, even if it did, no vitiating error could be established. This was because, so it was said, as the Medical Panel was not obliged to provide reasons for the Determination, the voluntary provision of inadequate reasons could not constitute a valid ground of review.

60 In my opinion, the Medical Panel misconstrued the scope of the prohibition in s 28LZG(4) of the Act. The specific degree of impairment that is referred to in s 28LZG(4) is a percentage, as specified in the definition of 'threshold level'. Accordingly, the prohibition in s 28LZG(4) extends only to an express statement of the percentage impairment assessed by a medical panel or any statement from which that percentage could be inferred.[23] The provision of reasons which explain a determination by a medical panel in a manner that does not directly or indirectly disclose the percentage impairment would not infringe s 28LZG(4).

61 My conclusion at [60] above, however, does not assist the plaintiff. That is because the Medical Panel's error caused it to refrain from providing further reasons for the Determination. Insofar as this resulted in the Reasons being inadequate, Colquhoun has the effect that this does not constitute a valid ground of review. Further, the error did not affect the outcome of the Medical Panel's assessment as distinct from its explanation of the assessment. It would be futile to set aside the Determination on account of this [24]ror alone.24

Ground 3A: Failure to take into account relevant considerations

63 The plaintiff submitted that the Medical Panel failed to consider Ms Elia's report dated 18 May 2011, and the medical records of Ms Elia and the Labrador Park Medical Centre ('Elia/Javadi Documents'). The plaintiff contended that, as Ms Elia attributed the plaintiff's psychiatric impairment exclusively to the effects of the 2005 incident, whereas the Medical Panel partly attributed that condition to the 2008 and 2009 incidents, it must follow that the Medical Panel did not take Ms Elia's documents into account.

64 The State defendants emphasised that the Elia/Javadi Documents were listed in Enclosure A to the Reasons and that the Reasons state that the Medical Panel 'formed its opinion by reference to ... the documents and information referred to in Enclosures A and B'. According to the State defendants, there is no reason to doubt the Medical Panel's statement and therefore it was not open to this Court to conclude that the Medical Panel did not take into account the Elia/Javadi Documents in making the Determination. The State defendants also contended that the Elia/Javadi Documents contained statements that were consistent with the Medical Panel's conclusion that the plaintiff's psychiatric impairment was not exclusively attributable to the 2005 incident.

65 I agree with the State defendants' submission. There is no reason not to accept at face value the Medical Panel's statement that it took into account all the documents in Enclosures A and B to the Reasons in assessing the degree of the plaintiff's psychiatric impairment. The fact that the Reasons specifically state that the Medical Panel noted Dr Jackson's assessment dated 20 August 2012 and are silent about the Elia/Javadi Documents, does not provide a sound basis for an inference that the Medical Panel did not also note or consider those documents.

66 The Medical Panel's duty was to consider the Elia/Javadi Documents, not to necessarily agree with them. In any event, the information in the Elia/Javadi Documents, considered as a whole, is not entirely inconsistent with the Medical Panel's Reasons for its Determination. Some of the Elia/Javadi Documents support the proposition, which the Medical Panel apparently adopted, that the 2009 incident resulted in the plaintiff suffering a psychiatric impairment. Moreover, the Elia/Javadi Documents contain numerous errors, omissions and inconsistencies.[25] To that extent, the Elia/Javadi Documents were unreliable and the Medical Panel would have been entitled to assess their weight accordingly.

67 As the plaintiff has not satisfied me that the Medical Panel failed to take into account the Elia/Javadi Documents, Ground 3A must fail.

Ground 3B: Errors relating to effects of the 2008 and 2009 incidents

68 It will be recalled from [44] above that in its Reasons, the Medical Panel stated that the information available to it enabled it to 'estimate a psychiatric impairment ... associated with the Claimant's physical and emotional injuries sustained in 2008 and 2009' and that 'it was appropriate to disregard the estimated unrelated impairment in accordance with Section 28LL(3) of the [Act].'

69 The plaintiff submitted that the Medical Panel had misapplied s 28LL(3) because, in the absence of any reference in the Reasons to any evidence that the 2008 and 2009 incidents resulted in psychiatric impairment, the Medical Panel engaged in impermissible speculation.

70 The plaintiff also submitted that there was no evidence that the 2008 incident or the 2009 incident resulted in any psychiatric impairment. In relation to the 2009 incident, the plaintiff invited this Court to treat the plaintiff's statements in support of the Crime assistance application as 'mere puffery' rather than as a genuine reflection of any psychiatric injury. The plaintiff submitted that even if the Court rejected the characterisation of the plaintiff's statements as 'mere puffery', and concluded that there was some evidence about adverse psychiatric consequences resulting from the 2009 incident, there was simply no evidence that any such consequences resulted from the 2008 incident.

71 The State defendants submitted that the Medical Panel had correctly recognised that any contribution by the 2008 and 2009 incidents to the plaintiff's current degree of psychiatric impairment had to be disregarded in accordance with s 28LL(3) of the Act and that the Medical Panel had correctly applied that section. The State defendants drew attention to the documents referred to at [16] and [20] to [22] above to demonstrate that there was plenty of evidence that the 2009 incident resulted in a psychiatric impairment.

72 In relation to the 2008 incident, the State defendants' primary submission was that the Medical Panel did not make a finding that the plaintiff suffered any psychiatric impairment as a result of that incident. In the alternative, the State defendants submitted that, if the Medical Panel made such a finding, the evidence before the Medical Panel justified such a finding.

73 The Medical Panel conceded that no document that was provided to the Medical Panel, and no information that the Medical Panel attributed to the plaintiff, expressly stated that the 2008 incident resulted in a psychiatric impairment. The State defendants contended, however, that it was open to the Medical Panel to form an expert opinion based on the entirety of the information provided to it that the plaintiff suffered some psychiatric impairment as a result of the 2008 incident. In particular, the State defendants relied on the following:

(a) The plaintiff's statement to the Medical Panel that he had suffered a fractured left arm in the 2008 incident and that he had never been back to the Nightclub after the 2009 incident;[26] and

(b) Dr Jackson's opinion that the 2008 and 2009 incidents indicated that the plaintiff's psychiatric condition includes angry outbursts and behaviours in the face of what he perceives to be unfair and unreasonable authority.[27]

74 The State defendants relied on s 28LZ of the Act which provides that the Medical Panel is not bound by the rules of evidence and can inform itself as it sees fit. The State defendants emphasised that the Medical Panel is an expert tribunal which is entitled to rely on its own expertise in making a determination, including the drawing of inferences from its observations of the presentation and demeanour of the plaintiff during the Medical Panel's examination of him.

75 I agree with the State defendants' submission that there was ample evidence to support the Medical Panel's conclusion that the 2009 incident resulted in a psychiatric impairment. The plaintiff emphasised the psychological impact of the 2009 incident in support of his Crime assistance application. Those statements were made solemnly on more than one occasion, including in a statutory declaration,[28] and must be taken at face value. They cannot be characterised as 'mere puffery'. The plaintiff's treating doctor, Dr Javadi, also made statements that apparently linked the 2009 incident to the plaintiff's anxiety and depression. The Medical Panel was entitled to reject the plaintiff's statement that the 2009 incident was minor and that he did not remember it.

76 The Medical Panel did not expressly find that the impairment resulting from the 2009 incident was permanent as distinct from a transient impairment which had resolved as at the time of the Medical Panel's assessment. This is a relevant consideration because the impairments from unrelated causes to be disregarded under s 28LL(3) are, by definition, confined to permanent impairments.[29] However, as the plaintiff did not complain about this aspect of the Determination, I will not consider this issue further.

77 In relation to the 2008 incident, I reject the State defendants' submission that the Medical Panel did not make a finding that that incident resulted in a psychiatric impairment. The Medical Panel's statements at [68] above can only sensibly be read as containing such a finding. I agree with the plaintiff that there was no evidence before the Panel to support such a finding. All references to the 2008 incident in the documents before the Medical Panel were exclusively to the physical injuries that the plaintiff sustained. Likewise, the statements that the Medical Panel attributed to the plaintiff in relation to the 2008 incident were confined to the fractured arm.

78 In accordance with the principles at [52] above, a consideration of whether there was any evidence to support a finding by the Medical Panel is not confined to the primary facts but extends to inferences that are reasonably open on the primary facts. In the present case no primary fact that was before the Medical Panel on its own or in combination with any other primary facts could support an inference that the 2008 incident resulted in any psychiatric impairment.

79 No inference can be drawn from the plaintiff's statement to the Medical Panel that 'he had never been back to [the Nightclub] where both incidents occurred' that the plaintiff was traumatised by the 2008 incident. In fact, the plaintiff returned to the Nightclub after the 2008 incident and only ceased to patronise it after the 2009 incident.

80 In relation to Dr Jackson's reference to the fractured arm and the plaintiff's angry outbursts, the only logical interpretation is that Dr Jackson was of the opinion that one of the consequences of the 2005 incident was that the plaintiff developed an anger management problem which was manifested in the 2008 and 2009 incidents. Although Dr Jackson's opinion is questionable in relation to the 2009 incident in which the plaintiff was hit from behind, the fact is that nothing that Dr Jackson stated in his report dated 20 August 2012 can found an inference that the plaintiff suffered any psychiatric impairment as a result of the 2008 incident.

81 Furthermore, the Medical Panel rejected Dr Jackson's assessment of the plaintiff's degree of impairment and the Medical Panel's reasoning is fundamentally different from that of Dr Jackson. In these circumstances, it is inconceivable that the Medical Panel would have relied on a single, opaque statement in Dr Jackson's report to draw an inference that would support the Determination.

82 I accept the State defendants' submission that the Medical Panel was entitled to rely on its own expertise, including its observations of the plaintiff, in making its Determination. I also accept that, as the Medical Panel was not bound by the rules of evidence, it was entitled to rely on any information it considered relevant even though that information may infringe an exclusionary rule of evidence or might not otherwise be admitted into evidence in a conventional civil or criminal trial. However, the Medical Panel is a statutory body performing an important function that can significantly affect people's lives and it is obliged to comply with the rules of natural justice. As such, there must be a relevant relationship between a finding and the information upon which the Medical Panel relies to make that finding. The Medical Panel cannot engage in speculative reasoning or make findings for which there is no factual foundation.[30]

83 On the basis of the information before the Medical Panel, any finding that the plaintiff suffered a psychiatric impairment - let alone a permanent psychiatric impairment[31] - as a result of the 2008 incident would lack any factual foundation and would be purely speculative.[32] Accordingly, such a finding was not open to the Medical Panel. It follows that the Medical Panel erred in law in making that finding and in purporting to take it into account in making its Determination. The error is apparent on the face of the record of the Determination.[33]

84 The State defendants submitted that even if the Medical Panel erred in finding that the 2008 incident resulted in a psychiatric impairment, no relief should be granted to the plaintiff because that error could not have affected the Determination. This was because, so it was said, the Medical Panel would have given little weight to the psychiatric effects of the 2008 incident.

85 It is well established that the making of an error of law by a tribunal will not result in the setting aside of the tribunal's decision if the error could not possibly have affected the outcome of the tribunal's deliberations or if it would otherwise be futile to set aside the tribunal's decision.[34]

86 In the present case, however, the Medical Panel did not provide any details of the 'estimated unrelated impairment' which it attributed to 'the Claimant's physical and emotional injuries sustained in 2008 and 2009' and which it 'disregarded ... in accordance with Section 28LL(3) of the [Act].'[35] Accordingly, it is not possible to say whether the Medical Panel's assessment of the psychiatric impairment resulting from the 2008 incident was sufficient to reduce the degree of impairment below the threshold level. It follows that there is no way of assessing whether the Medical Panel's error affected the Determination.

88 The application for review will be allowed and the Determination will be set aside. I will hear from the parties on the precise terms of the orders to be made by this Court, including whether the medical question should be remitted to a differently constituted medical panel. I will also hear from the parties on the question of costs.

[1] The relevant provisions of the Act are discussed at [31] to [38] below.

[3] Some minor errors in the plaintiff's handwriting have been corrected.

[5] See definitions of 'impairment' and 'threshold level' in s 28LB of the Act.

[7] [2011] VSC 245 (24 June 2011) ('Alcoa').

[8] Alcoa [2011] VSC 245 (24 June 2011) [66]-[67], [72]-[73], [75] (citations omitted) (emphasis in original).

[9] Alcoa [2011] VSC 245 (24 June 2011) [76].

[10] [2011] VSC 468 (20 September 2011) ('Chua').

[11] Chua [2011] VSC 468 (20 September 2011) [132].

[12] Chua [2011] VSC 468 (20 September 2011) [119], [124], [135], [139].

[13] [2009] VSC 311 (31 July 2009) ('Heinz').

[14] Heinz [2009] VSC 311 (31 July 2009) [38] (citations omitted).

[18] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 356. See also Collins v Minister for Immigration and Ethnic Affairs [1981] FCA 147; (1981) 58 FLR 407, 410-11; Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197, 199; MBR v Parker [2012] QCA 271 (5 October 2012) [61].

[19] [2013] VSCA 58 (20 March 2013) ('Colquhoun').

[20] Colquhoun [2013] VSCA 58 (20 March 2013) [6], [43]. The Court did not state that a medical panel would not be obliged to provide reasons for its determination if it received a valid request for reasons under s 8(1) of the Administrative Law Act 1978 ('ALA').

[21] Colquhoun [2013] VSCA 58 (20 March 2013) [45].

[22] Under s 10 of the ALA, the reasons for a decision of a tribunal such as the Medical Panel form part of the decision.

[23] Georgiou v Capitol Radiology Pty Ltd [2011] VSC 158 (20 April 2011) [127]-[128], [159].

[24] See [85] below.

[25] A glaring example is Ms Elia's statement in her report dated 18 May 2011 that the plaintiff 'reported no previous psychological or physical injuries' when the information that was provided to Ms Elia included details of the 2008 and 2009 incidents and possible psychiatric effects of the 2009 incident.

[26] See [43] above.

[27] See [28] above.

[28] The Crimes assistance application form contained a statutory declaration.

[29] Chua [2011] VSC 468 (20 September 2011) [41], [119].

[30] Chua [2011] VSC 468 (20 September 2011) [124], [135].

[31] See [76] above.

[32] Chua [2011] VSC 468 (20 September 2011) [124], [135].

[34] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145; Towie v Victoria [2008] VSC 177; (2008) 19 VR 640, 653 [49]-[52].

[35] See [44] above.

Court (General Civil Procedure) Rules 2005

Crime Assistance Act 2009

Compensation Act 1985

At a glance

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Judgment (150 paragraphs)

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