Plaintiff v Defendants

1 The plaintiff ('Dr Kowal') seeks an order in the nature of certiorari quashing the decision made on 13 June 2013 of a medical panel constituted by the first and second defendants ('the panel') on a reference made under the Wrongs Act 1958 (Vic) ('the Act').

2 Dr Kowal is a specialist ophthalmologist. He was consulted by the third defendant, Master James Grant ('the claimant') on 7 January 2010. The claimant was then aged 13 years.

3 The claimant consulted Dr Kowal for advice as to how to treat his strabismus and diplopia. Dr Kowal recommended surgery. The surgery was performed on 22 January 2010 ('the surgery').

4 The claimant issued proceedings in the County Court on 12 December 2012 alleging that the surgery was performed negligently and that he suffered injury as a result. He claimed damages including non-economic loss damages.

5 Dr Kowal was served with a certificate of assessment ('the certificate') signed by Dr J Robert Nave ('Dr Nave'), ophthalmologist, dated 9 November 2012, and a second certificate of assessment ('the second certificate') also signed by Dr Nave dated 30 November 2012.

6 On 9 January 2013, Dr Kowal referred a medical question in relation to the assessment of the claimant to a panel under s 28LWE of the Act. Both parties made submissions to the panel. The panel convened. The claimant was examined on 20 May 2013 by Dr Justin O'Day, ophthalmologist, and on 23 May 2013 by Dr Jack Owczarek, general practitioner.

7 The panel provided a certificate of determination ('the determination') and reasons for determination ('reasons') both dated 13 June 2013. The determination was that the degree of whole person impairment resulting from the physical injury to the claimant satisfied the threshold level.

8 From 21 May 2003, the right to recover damages for non-economic loss has been restricted to those people who have sustained a significant injury caused by the fault of another.[1]

9 'Significant injury' is relevantly defined in the Act as:[2]

(a) the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(aa) a certificate of assessment has been issued under section 28LNA in respect of the injury, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(b) a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level;

10 The term 'threshold level' is defined in respect of physical injury as impairment of more than 5 per cent.[3] The term 'impairment' is defined to mean 'permanent impairment'.[4] The assessment of degree of impairment must only be done by an approved medical practitioner.[5]

11 In performing the assessment of impairment the approved medical practitioner must make an assessment of degree of impairment under Part VBA in the manner directed by s 28LH of the Act viz;[6]

(a) in accordance with -

(i) the A.M.A. Guides; or

(ii) the methods prescribed for the purposes of this Part; and

(b) in accordance with operational guidelines (if any) as to the use of those Guides or methods issued by the Minister.

12 The language of s 28LH is mandatory, and requires that the assessment of impairment proceed in accordance with the A.M.A. Guides ('the Guides').[7] The Guides are the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by or under Part VBA of the Act.[8] It was not suggested that there were any relevant prescribed methods for the purposes of Part VBA, or any operational guidelines as to the use of the Guides or methods issued by the Minister.

13 The scheme adopted by the Act is for a certificate of assessment to be provided by an approved medical practitioner to the person seeking the assessment.[9] The certificate of assessment must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.[10] Upon service by a claimant of a certificate of assessment, a respondent may refer a medical question in relation to the assessment to a medical panel for determination.[11]

14 At the time of the referral, the respondent must set out the medical question the panel is to answer, and forward the prescribed information.[12] The term 'medical question' is defined to mean:[13]

medical question in relation to a claim for damages, means a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level

15 The panel has the task of answering the medical question after making an assessment.[14] The 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.[15] It must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.[16]

16 A 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 of Part VBA of the Act.[17] This includes making an assessment of degree of impairment in accordance with the Guides.[18] 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.[19]

17 Chapter 8 of the Guides is entitled "The Visual System". Section 8.3 deals with "Abnormal Ocular Motility and Binocular Diplopia". It is three paragraphs long, and contains two examples.

18 Section 8.3 commences:

Unless a patient has diplopia within 30° of the center of fixation, the diplopia rarely causes significant visual impairment. An exception is diplopia on looking downward.

Most of the text of the three paragraphs is concerned to describe the method for determining the impairment percentage for loss of ocular motility due to diplopia. Essentially, a visual field chart is prepared dividing the visual field into its eight meridians. The extent of diplopia is recorded on the visual field chart in the various directions by the angular measurement from the centre of fixation.

19 There are two examples given in section 8.3. In example 1, diplopia within the central 20° of the visual field is estimated to be a 100% impairment of ocular motility. This is considered equivalent to the total loss of vision of one eye and estimated to be a 25% impairment of the visual system and a 24% whole-person impairment. Example 2 is concerned with the summation of diplopia where found in the 20° to 30° and 30° to 40° sectors of the visual field.

20 Impairment is defined in the Glossary to be "the loss, loss of use, or derangement of any body part, system or function". The Glossary makes it clear that the Guides are concerned with permanent impairment. Permanent impairment is described as "impairment that has become static or well stabilised with or without medical treatment and is not likely to remit despite medical treatment."

21 According to the Glossary, a permanent impairment is considered to be unlikely to change substantially and by more than 3% in the next year with or without medical treatment. The Glossary states that if "an impairment is not permanent, it is inappropriate to characterise it as such and evaluate it according to Guides criteria".

22 There is no mention in section 8.3 of the frequency of occurrence of diplopia that may be experienced by a person. There is no reference to the significance of intermittent, occasional, frequent or constant diplopia although each of these adjectives is defined in the Glossary to the Guides.

23 It is plain that a person who suffers from diplopia for 5% of the day has a very different experience from that of a person who suffers from diplopia throughout the entire day. It is equally plain that a person whose double-vision in one eye is avoidable or suppressible for example by looking and concentrating through an unaffected or dominant eye suffers to a measurably lower degree from diplopia than a person who continuously suffers from double-vision.

24 On 12 June 2009, the claimant went to see Dr E Wong ('Dr Wong') of the Ocular Motilic Clinic. Dr Wong's notes record:

fix switch diplopia

cannot suppress RE

and:

Told James to NOT to make himself see double by force fixatn of L eye.

25 The notes of Dr Wong suggest that the claimant had the capacity to avoid double vision provided he did not force fixation of the left eye.

26 On 25 November 2009, Dr Stephen D Smith ('Dr Smith') referred ('the referral') the claimant to Dr Kowal. The referral stated:

Thank you for seeing James Grant, age 13 years, for opinion and management regarding recurring squint in his left eye despite two repairs (one at RCH, one at Eye & Ear), he experiences diplopia a [sic] times.

27 The referral does not suggest that the diplopia then experienced by the claimant was of a permanent or continuing character. Rather, it refers to the claimant experiencing diplopia 'at times'. This is consistent with the claimant experiencing diplopia on an intermittent or non-continuous basis.

28 On 12 January 2010, Dr Kowal responded to Dr Smith:

1. LEFT EXOTROPIA WITH DIPLOPIA

James had strabismus surgery for esotropia at age 2. His eye diverged some months later, and he had a further surgery at RVEEH at age 5. His eyes continued to diverge, and last year he also developed diplopia.

His divergence measures 10-15 degrees depending on how it is measured. It is sensible to make this better to improve his appearance and his diplopia. Expectations of success are cautiously optimistic.

29 On 22 January 2010, the claimant underwent a four-muscle strabismus repair using adjustable sutures. The operation was performed by Dr Kowal.

30 Dr Nave described the consequences of the procedure in a report dated 19 June 2012:

Postoperatively James immediately became aware of constant diplopia with reduction of the exotropia resulting in images being closer than they had been preoperatively, initially overlapping at near. Between February 2010 and June 2010, James' left exotropia varied between 8-18 prism dioptres compared with 25-40 prism dioptres recorded preoperatively. A variable left hypertropia of between 4-10 prism dioptres persisted with a small amount of exocyclotorsion.

When James was reassessed at the Ocular Motility Clinic on the 14th of May 2010, it was noted that constant diplopia was present with the inability to suppress the image of one eye.

When James was examined by Dr Joanne Dondey in May 2010, he was recorded as having excellent distance visual acuities for each eye unaided with a small left exotropia and small left hypertropia associated with 5° of left exocyclotorsion. Apart from the possibility of wearing glasses to blur the vision in James' left eye, no other treatment was recommended.

At a consultation with Dr Kowal on the 10th of May 2010, the possibility of further surgery was discussed and the possibility of eliminating the diplopia by blocking the vision in his left eye with a contact lens was suggested.

31 As to the claimant's condition prior to surgery, Dr Nave stated:

Contrary to your suggestion that the preoperative medical notes support James' assertion that he did not have problematic or constant diplopia prior to surgery, it appears to me from perusing the various records that this diplopia was definitely problematic although not constant. The notes from the Ocular Motility Clinic in June 2009 clearly refer to "fixation switch diplopia - cannot suppress right eye" and in his letter of referral to Dr Kowal in November 2009, Dr Smith records "experiences diplopia at times". Furthermore, Dr Kowal's records on the 7th of January 2010 indicate that James "complains of vertical and slight horizontal diplopia most of time since January 2009". If James had not suffered from diplopia prior to Dr Kowal's surgery, it is highly unlikely he would have suffered from diplopia after such surgery.

32 Dr Nave did not at the time of his report of 19 June 2012 consider himself able to complete the certificate of impairment necessitating an injury of greater than 5%:

When James' parents consulted me on the 26th of March 2010, I expressed the opinion that, whilst I agreed that James' diplopia had been made considerably more troublesome as the result of surgery, which is likely due to bringing the images closer together, the level of impairment would not rate highly when he is assessed in accordance with the AMA Guides to the Evaluation of Permanent Impairment, 4th Edition, due to the fact that he clearly had significant diplopia prior to surgery together with longstanding strabismus, which means that his visual impairment when assessed in accordance with the AMA Guides prior to the surgery would have been assessed at 100% loss of function of one eye.

Whilst I do not question the claim that his diplopia has been made significantly worse as a result of such surgery, he cannot have more than 100% loss of one eye and, even if one is to allow for problems such as torsion, brightness variation and ghosting as you have suggested, the maximal allowance for these conditions under the guidelines is 10% loss of function of one eye, which amounts to a total visual impairment of only 3% or a whole person impairment of 3%. I am therefore unable to complete the certificate of impairment necessitating an injury of greater than 5%.

Whilst I agree entirely that James has suffered a significant impairment of visual function due to worsening of his diplopia, my assessment of his impairment is unfortunately constrained by the requirements of the AMA impairment assessment, which, I suspect, will be more apparent to you as a lawyer than to me as a medico.

33 In a later assessment given on 27 September 2012, Dr Nave stated:

Whilst I have never had the opportunity to examine James, there seems little doubt from my perusal of previous records and the most recent consultation with Dr Wong on the 28th August 2012 that James has constant or almost constant diplopia within 20° from fixation, which, when assessed in accordance with the AMA Guides, 4th Edition, Chapter 8.3: Abnormal Ocular Motility and Binocular Diplopia, he now has 100% impairment of visual function of one eye.

Unfortunately the AMA Guides make no reference to intermittent diplopia, which James clearly experienced prior to the 2010 strabismus surgery.

34 Dr Nave was concerned that the Guides made no reference to intermittent diplopia considering this to be a shortfall in the Guides. He said:

Common sense would indicate that a person with constant diplopia is worse off than a person with intermittent diplopia and, if a person with otherwise normal visual function only experienced diplopia 10% of the time, it would be unreasonable to assess their impairment as 100% of visual function of one eye.

In the particular case of James Grant, it would appear that he was able to effectively suppress the image seen by the turning eye most of the time prior to the January 2010 surgery, which means he was able to avoid diplopia. It can be argued that, if he was suppressing the eye, he was not using the eye and therefore had 100% impairment of visual function irrespective if he was suffering from diplopia or not. However, there can be no doubt that diplopia with the ability to suppress the image in one eye causes much less disability than constant diplopia and I acknowledged this in my previous report by stating that James is undoubtedly now worse off than preoperatively.

Having given the matter considerable thought over the past months, I feel it is reasonable to argue that intermittent diplopia does not represent 100% loss of function in one eye even if it is within 20° from fixation. James therefore has significant visual impairment resulting from the strabismus operation. If I were to assume that James may have had diplopia 60% of the time prior to the surgery (a figure which is probably high), this would equate to a total visual impairment of 15% whereas he currently has a total visual impairment of 25%. In terms of whole person impairment, his preoperative impairment would have been assessed as 14% and postoperative impairment at 24%, i.e. a 10% whole person impairment. I am therefore enclosing a completed certificate of assessment of degree of impairment arising from a stabilised injury in accordance with the Wrongs Act 1958.

35 On 19 November 2012, Dr Nave gave the certificate of assessment. It described the injury assessed as:

In a letter dated 14 November 2012, the solicitors for the claimant provided information under reg 5 of the Wrongs (Part VBA Claims) Regulations 2005 (Vic) describing the injury as:

Significant exacerbation of pre-existing intermittent and suppressible diplopia

In the second certificate given on 30 November 2012, Dr Nave described the injury assessed as:

36 The solicitors for Dr Kowal and the solicitors for the claimant both made submissions to the panel.

37 On 13 June 2013, the panel made the determination. In answer to the question whether the degree of impairment resulting from the injury to the claimant alleged in the claim satisfied the threshold level, the panel answered:

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

38 In the determination, the panel described the claimant's pre-existing condition:

The claimant told the Panel that approximately in the middle of 2009 he started to experience intermittent double vision. He said that his double vision had both horizontal and vertical components, although the horizontal component was much more pronounced. He said that if he focused on images with his left eye then there would be double vision. He said that during the day he would not have double vision unless he changed focus to his left eye. The claimant said that he felt that his automatic focusing was his right eye and therefore he did not have significant double vision during the day. He said that at night, in particular if he was tired, then he could get double vision, even when he was focusing with his right eye. He said that at such times he may not have been able to eliminate the double vision.

39 The panel also described the claimant's condition following the surgery on 22 January 2010:

The claimant said that on 22 January 2010 he underwent further squint surgery. He said that immediately following the surgery his left eye was deviated inwards but gradually over the ensuing months it moved outwards, and now it is deviated outwards, although not as much as it was prior to the surgical procedure. He said that as soon as he woke up from the anaesthetic, he became aware of constant double vision, which he was unable to eliminate by fixing with his right eye anymore.

...

He said that his current symptoms include constant horizontal and vertical double vision which he is unable to suppress. He said that he has difficulties with reading and tends to develop headaches 20 to 30 minutes into the activity. He said that he closes one eye 50% of the time to assist him with reading. The claimant said that he is slightly better with the computer in that he will have to close one eye 30% of the time. He said that his double vision is worse when viewing distant objects such as a whiteboard or a TV screen. He said that he has to close one eye when viewing the whiteboard at school. He said that he is aware of ghosting when looking at bright lights. He said that he is self-aware of his appearance and that he has been a subject of teasing by other students.

40 The panel stated its reasoning and conclusions following its investigations:

The panel concluded that the claimant is suffering from unresolved exacerbation of diplopia in the setting of pre-existing, long-standing strabismus, surgically treated.

The Panel also concluded that for the purposes of impairment assessment, the claimant's current physical condition is stable.

The Panel conducted an impairment assessment using the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th Edition, 3rd Printing) ('the Guides') as required by Section 28LH of the Wrongs Act 1958 ("the Act").

The Panel assessed the claimant's left eye in accordance with Section 8.3 of Chapter Eight of the Guides.

The Panel assessed the claimant's diplopia and concluded that the most appropriate method to assess impairment was by assessment of Abnormal Ocular Motility and Binocular Diplopia pursuant to Section 8.3 of the Guides. The Panel assessed the left eye impairment.

The Panel concluded that it was unnecessary to determine whether there was any additional impairment when assessed in accordance with the Guides, in order to answer the medical question.

In making an assessment of impairment, the Panel took into account the claimant's history and referral material to determine if there is any impairment that the Panel considers is from unrelated causes or injuries and which the Panel ought to disregard in accordance with Section 28LL(3) of the Act.

The Panel concluded, on the basis of the information available, that there is evidence of impairment of the left eye arising from the claimant's unrelated pre-existing diplopia, and which is playing a part in the Claimant's current impairment and which ought to be disregarded pursuant to Section 28LL(3) of the Act.

The Panel considered that it has sufficient information to enable the Panel to estimate the range of the claimant's pre-existing impairment of the left eye, in accordance with the Guides. The Panel therefore estimated the range of the claimant's pre-existing impairment of the left eye.

The Panel disregarded that part of the Claimant's impairment which the Panel considers arises from the Claimant's pre-existing left eye condition, in accordance with Section 28LL(3) of the Act and concluded that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim is more than 5% and is permanent.

The reasons of the panel - pre-existing impairment

41 In its reasons, the panel summarised the claimant's medical history as ascertained from the claimant and from his parents. Following good initial results from squint surgery undertaken when the claimant was 2½ years old and again when he was 7½ years old, the claimant's left eye started to turn out again.

(a) in the middle of 2009, the claimant started to experience double vision;

(b) his double vision had both horizontal and vertical components, although the horizontal component was much more pronounced;

(c) if the claimant focused on images with his left eye there would be double vision;

(d) during the day the claimant would not have double vision unless he changed focus to his left eye;

(e) the claimant's automatic focussing was his right eye and therefore he did not have significant double vision during the day;

(f) at night, in particular if the claimant was tired, the claimant could get double vision, even when he was focusing with his right eye; and

(g) at such times, he may not have been able to eliminate his double vision.

43 The panel noted the eye outpatient treatment and progress notes of Dr Wong who stated on 12 June 2009 that the claimant had a fixation switch, double vision and could not suppress the image with his right eye. Dr Wong noted a divergent squint and discussed the risk of double vision post operatively.

44 Having found these facts as to the claimant's pre-existing impairment, the panel made a number of statements which demonstrate that the members of the panel were well aware that the panel was required to disregard the pre-existing impairment of the left eye. The panel concluded that:

(a) on the basis of the information available, there was evidence of impairment of the left eye arising from the claimant's unrelated pre-existing diplopia, and which is playing a part in the claimant's current impairment and ought to be disregarded;

(b) pursuant to s 28LL(3) of the Act, the panel had sufficient information to estimate the range of the claimant's pre-existing impairment of the left eye, in accordance with the Guides;

(c) the panel estimated the range of the claimant's pre-existing impairment of the left eye; and

(d) disregarding that part of the claimant's impairment arising from the pre-existing left eye condition in accordance with s 28LL(3) of the Act, the whole person impairment resulting from the physical injury to the claimant alleged in the claim is more than 5% and is permanent.

The reasons of the panel - post-operative impairment

45 The panel set out the results of its own physical examination. It found that the claimant suffered from "a left divergent squint of 12 prism dioptres present for near and 30 prism dioptres present for distance". After synoptophore testing, it was found that the claimant was unable to fuse and a suppression scotoma was unable to be found. The panel determined that when tested with Worth 4 lights, there was no suppression of any of the lights.

46 As a result of the examination of the claimant by the panel, and on the information available, the panel reached the conclusions that:

(a) no additional investigations were necessary for it to assess the claimant's current condition and impairment with respect to the alleged physical injuries;

(b) the claimant is suffering from unresolved exacerbation of diplopia in the pre-existing strabismus surgically treated;

(c) for the purposes of impairment assessment the claimant's current physical condition is stable;

(d) the impairment assessment was conducted by the panel under the Guides as required by s 28LH of the Act;

(e) the claimant's left eye was assessed by the panel under section 8.3 of the Guides;

(f) after disregarding the claimant's pre-existing impairment of the left eye, the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim was more than 5% and was permanent; and

(g) further explanation or detailed reasons of the basis on which it had calculated impairment was prohibited by s 28LZG(4) of the Act.

47 Dr Kowal contends that the panel fell into jurisdictional error and failed to provide adequate reasons.

48 The originating motion dated 9 August 2013 ('originating motion') sets out the errors of law alleged to have been made by the panel:

1. The Medical Panel fell into jurisdictional error in that it did not assess the Plaintiff in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment 4th Ed ("the AMA Guides") as required by s. 28LZG and Division 3 of the Act in that it:

(a) Failed to properly apply Chapter 8, particularly section 8.3, of the Guides, which mandates that a finding that the Third Defendant had diplopia prior to the surgery meant that he had diplopia within the central 20 degrees which is equivalent to 100% impairment of ocular motility. In those circumstances the Medical Panel was bound to find, by reason of s. 28LL(3) of the Act, that the Plaintiff's pre-existing impairment was equivalent to 100% and could not find that after the surgery there was a loss additional to 100% which could satisfy the threshold level as being a significant injury pursuant to s. 28LE;

(b) Failed to apply s. 28LL(3) of the Act which required disregarding the impairment of the pre-existing diplopia which must have been assessed as 100% of ocular motility.

1. The Medical Panel took into account an irrelevant consideration in that it found that the Third Defendant's pre-existing impairment was not equivalent to 100% impairment of ocular motility.
2. The Medical Panel took into account an irrelevant consideration in that it adopted a methodology of assessment that relied on the reasoning set out in the report of Mr. Nave dated 19 June 2012 and not the methodology mandated by s.28LZG of the Act.

1. The Medical Panel failed to provide adequate reasons in that:

(a) It failed to provide a "discernible path of reasoning" to allow the Plaintiff to ascertain how Chapter 8, section 8.3, of the Guides was applied;

(b) It failed to explain what percentage impairment was prescribed to the Third Defendant's pre-existing diplopia or how such a condition would be treated by the Guides;

(c) It failed to explain whether or not it found the Third Defendant had a pre-existing condition of diplopia which occurred in the central 20 degrees;

(d) It failed to explain whether or not it found the Third Defendant had a pre-existing condition of diplopia which occurred in the range of 20 degrees to 30 degrees;

(e) It failed to address at all the Plaintiff's submissions (in its letter to the Medical Panel dated 15 January 2013) that a finding of pre-existing diplopia mandated a finding that the Third Defendant had a 100% impairment of ocular motility prior to the surgery and could not then experience an impairment of more than 100% after the surgery;

(f) It failed to address at all the opinion of Mr. Nave expressed in his report of 19 June 2012 that "clearly he had significant diplopia prior to surgery together with longstanding strabismus, which means that his visual impairment when assessed in accordance with the AMA Guides prior to the surgery would have been assessed at 100% loss of function in one eye".

(g) It failed to explain whether it adopted and applied the reasoning expressed by Mr Nave in his report of 27 September 2012 in which he set out the methodology by which he calculated that the Third Defendant had an impairment in excess of the threshold level.

49 The principal submission of Mr Pillay of Counsel who appeared for Dr Kowal was that the panel was bound to find that the claimant's pre-existing impairment to his left eye was 100% because prior to the surgery he had diplopia within the central 20 degrees of the visual field. This was equivalent to 100% impairment of ocular motility from causes unrelated to the surgery. It was immaterial that the diplopia was intermittent or suppressible. He submitted that the panel was bound to find that after the surgery there was no additional impairment which could satisfy the threshold level as being a significant injury under s 28LE of the Act.

50 Grounds 8 to 10 of the originating motion variously allege that the panel's failure to find that the pre-existing impairment was equivalent to 100% constituted a failure to apply Chapter 8 of the Guides, particularly section 8.3 (ground 8(a)), a failure to apply s 28LL(3) of the Act (ground 8(b)), taking into account irrelevant considerations (grounds 9 and 10) including by adopting a methodology of assessment that relied on the reasoning of Dr Nave in his report dated 19 June 2012, and not the methodology mandated by s 28LZG of the Act.

51 Mr Pillay contended that the panel had made an error of law amounting to jurisdictional error, which invalidated the decision of the panel.[20]

52 There is no doubt that in answering the medical question, the panel must adhere to s 28LH of the Act and assess the degree of impairment resulting from injury to the claimant in accordance with the Guides. In Taylor v Mountain Pine Furniture Pty Ltd, Bongiorno J said:[21]

Whilst the interpretation of medical matters referred to in the Guides and the exercise of clinical judgment must be left to the medical examiner who is applying them, it is not within that medical examiner's remit to ignore an express direction contained in the Guides as to how a particular objective fact is to be treated in making an assessment.

53 In H J Heinz Company Australia Ltd v Kotzman, Kyrou J (as he then was) said:[22]

In order for a medical panel to assess impairment 'in accordance with the [Guides]' as required by s 91 of the AC Act, it must act in conformity with the Guides. This means that it must apply the methodologies, processes and criteria set out in the Guides for the relevant condition, body part or system and adhere to any minimum or maximum values set out in the Guides for that condition, body part or system. Where the Guides contains a table that is applicable to a condition, body part or system, an assessment based on that table will not be in accordance with the Guides unless the categories, descriptions, criteria, ranges, adjustments and other elements of the table that are relevant to the condition, body part or system are adhered to and complied with.

Some provisions of the Guides, including some tables, provide alternative methodologies or set out ranges, and require the exercise of professional judgment in selecting the most appropriate methodology or in determining where in the range the relevant condition or body part falls. However, the Guides does not permit the exercise of professional judgment at large, unconstrained by the specific requirements of each methodology or table that it sets out. Once a particular methodology or table is selected, its requirements, including any limitations, must be applied in the manner set out by the Guides even if the outcome may appear sub-optimal. This is so because the role conferred by the AC Act on a Panel is not to arrive at a correct or fair assessment, but rather to arrive at an assessment that is the product of the application of the Guides.

The Guides itself makes it clear that the protocols and methodologies it sets out are intended to be standardised processes which produce similar outcomes irrespective of who conducts the assessment. In particular, the statement in s 1.2 of the Guides which I have set out in [11] highlights that in order for an assessment to be in accordance with the Guides, the Panel must follow the protocols and tables in the Guides.

54 Mr Nash QC who appears with Ms Foy for the claimant relied on the decision of Kyrou J in Hatswell v Victoria, where his Honour said as to the legal principles relating to judicial review of decisions of medical panels:[23]

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').

In Alcoa Holdings Ltd v Lowthian, 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.

55 In Alcoa Holdings Ltd v Lowthian, J Forrest J stated in summary that the Accident Compensation Act 1985 (Vic) ('the AC Act') and the Guides required the following approach where there is evidence of a pre-existing impairment of the same body part:[24]

(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.

56 While there is no doubt that any impairment from an unrelated injury or cause is to be disregarded in making an assessment in accordance with the legislative direction contained in s 28LL(3) of the Act, these authorities demonstrate that the evaluation of an unrelated impairment need not be carried out by applying the tests laid down by the Guides.

57 In Alcoa,[25] J Forrest J pointed out that s 91(7)(c) of the AC Act not only did not necessitate the application of clause 9 of the Guides, but to utilise clause 9 criteria might result in error. Clause 9 spoke in terms of apportionment of the level of impairment between the pre-existing contribution and that of the subject injury. There was a potential tension between the manner in which the Guides in clause 9 dealt with pre-existing impairment and the manner in which the Act required such an impairment to be disregarded. The Act did not permit discretionary evaluation.[26]

58 Osborn J (as he then was) in Chua v Lowthian[27] accepted these principles as applicable to s 28LL(c) of the Act. His Honour gave four reasons why he agreed with the approach taken by J Forrest J in Alcoa:[28]

First, s 28LL(3) does not require that unrelated impairment necessarily be assessed in accordance with the Guides, as:

(a) Section 28LH, which requires utilisation of the Guides, commences with the words 'subject to this division'.

(b) Section 28LL(3) utilises imperative words.

(c) The underlying common law notions of compensable injury support his Honour's conclusions. It is the potentially compensable injury and it alone which the Panel is intended to assess.

Secondly, if the evidence allows, the Panel must assess pre-existing impairment to the extent necessary to its task. (It is logically possible in cases under the Act that, because all that is required is a conclusion that impairment reaches a certain threshold, it may not be necessary to assess the degree of a pre-existing impairment. Thus, where the subsequent injury resulted in amputation of a leg, it may not be necessary to assess the level of some pre-existing functional impairment if it is plain that that impairment could not affect the decision concerning the relevant threshold.)

Thirdly, the tests contained in the Guides may or may not provide a satisfactory basis for assessment of pre-existing impairment and in circumstances of insufficient information they are not to be regarded as the exclusive method for such assessment.

Fourthly, any 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.

59 In Chua v Lowthian, Osborn J reached conclusions on the facts before him which included:[29]

(a) the panel had not simply made positive findings of fact, it had constrained consideration of the question of pre-existing impairment by reliance on the application of the Guides when this was not the definitive test;

(b) a pre-existing condition or injury may or may not constitute pre-existing impairment because impairment in the relevant sense is permanent impairment;

(c) it may be that pre-existing impairment can be established and assessed in accordance with the Guides on the basis of historical evidence;

(d) Alternatively, it may be that although there is insufficient information to permit assessment in accordance with the Guides, nevertheless there is evidence which demonstrates that there was a level of pre-existing impairment. In such cases, the panel must disregard and discount such impairment as best it can as an expert tribunal, having regard to the probabilities on the evidence available.

(e) The panel may be able to conclude that the level of impairment resulting from the compensable injury necessarily exceeds the threshold without concluding more than a probable potential range of pre-existing impairment. It may be clear that the potential range of pre-existing impairment could not bring the assessment of the impairment resulting from the compensable injury down below the threshold level. In such cases, it will be unnecessary to make an assessment of a precise percentage of pre-existing impairment. It will be possible to conclude that the threshold has been exceeded in respect of the compensable injury.

(f) Once the panel has identified a potentially compensable injury and the current level of impairment caused by it, the panel is not required to hypothesise what level of impairment the claimant may have suffered from as at the date of assessment if the injury had not occurred.

60 From the review of authority, it is apparent that it was not legally obligatory for the panel in assessing the claimant's pre-existing impairment for the purposes of s 28LL(3) to comply with section 8.3 of the Guides.[30] While it may be that a pre-existing impairment can be established and assessed in accordance with the Guides on the basis of historical evidence, it may also be the case that there is insufficient evidence to permit assessment of a pre-existing impairment in accordance with the Guides. The panel must ensure that the statutory direction in s 28LL(3) that impairments from unrelated injuries or causes are disregarded in making an assessment is met using the best information available to assess the pre-existing impairment.

Was there jurisdictional error by the panel? (Grounds 8-10)

Ground 8 - failing to assess the claimant in accordance with the Guides

61 The panel conducted an assessment of the post-operative impairment to the claimant's vision in accordance with the Guides. It was not suggested that it did not. The dispute relates to the assessment of the pre-existing impairment of the left eye.

62 In the reasons, the panel stated that it had sufficient information to estimate the range of the claimant's pre-existing impairment of the left eye in accordance with the Guides. The panel also stated that it had conducted an impairment assessment using the Guides as required by s 28LH, and that it had assessed the claimant's left eye in accordance with section 8.3 of the Guides. The panel also stated that it assessed the claimant's diplopia and concluded that the most appropriate method to assess impairment was by assessment of Abnormal Ocular Motility and Binocular Diplopia pursuant to section 8.3 of the Guides.

63 The panel was not obliged to apply section 8.3 of the Guides in assessing the claimant's pre-existing impairment under s 28LL(3). As I have said,[31] section 8.3 of the Guides essentially describes a method or procedure to be adopted in the assessment of abnormal ocular motility and binocular diplopia. Section 8.3 makes no reference to intermittent or suppressible diplopia or how this is to be taken into account. The application of section 8.3 of the Guides was an expert medical matter for the panel. There is no reason to doubt that the panel did what it said it did and applied section 8.3 of the Guides. It did its best as an expert body to assess the pre-existing impairment on the available medical information. It was not legally obligatory for the panel to arrive at the conclusion that the impairment of pre-existing diplopia be assessed at 100% of ocular motility. No jurisdictional error is shown when the panel did not arrive at this conclusion.

Ground 9 - taking into account an irrelevant consideration in that it found that the claimant's pre-existing impairment was not equivalent to 100% impairment of ocular motility

64 The extent of the claimant's pre-existing impairment was an essential matter for the panel to assess. It is not demonstrated that the panel took into account any irrelevant consideration when it found that the claimant's pre-existing impairment was not equivalent to a 100% impairment of ocular motility. The consideration said in the ground to be irrelevant is not an irrelevant consideration at all. It was a conclusion arrived at by the panel doing its best with the available medical evidence. The conclusion was a conclusion that was open to the panel to reach. There is no sign that any irrelevant consideration was taken into account by the panel.

Ground 10 - taking into account an irrelevant consideration in adopting a methodology of assessment that relied on the reasoning set out in the report of Dr Nave dated 19 June 2012 and not the methodology mandated by s 28LZG of the Act

65 In the reasons, the panel states that "the documents considered by the Panel are described in Enclosures A and B". Enclosure B contains Dr Nave's two medical reports. The panel also says that it formed its opinion having regard to matters which included the documents and information in Enclosure B.

66 While the panel considered the reports of Dr Nave, it is not shown that the panel chose to follow the methodology of assessment adopted by Dr Nave in his report dated 19 June 2012. The panel does not say that it adopted Dr Nave's methodology or reasoning. Rather, it is clear that the panel conducted its own examination and adopted its own reasoning. It is not established that the panel adopted Dr Nave's reasoning, or that it took into account an irrelevant consideration. It was a matter for the panel to determine the impairment of pre-existing diplopia on the evidence that it had. It is not demonstrated that the panel took into account any irrelevant consideration.

Grounds 11(a)-(g) - Failure to provide adequate reasons - lack of a 'discernible path of reasoning"; failure to explain or address various matters in its reasons

67 A distinction has developed in Victorian law between the obligation of medical panels appointed under the AC Act to give reasons, and the absence of such an obligation in the case of medical panels appointed under the Act.

68 In Wingfoot Australia Partners Pty Ltd v Kocak, the High Court said of the obligation of medical panels appointed under the AC Act to provide reasons:[32]

The objective, within the scheme of the Act, of requiring the medical panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law. There is an obvious benefit in requiring a written statement of reasons for an opinion always to meet that standard. The benefit is that it enables a person whose legal rights are affected by the opinion to obtain from the Supreme Court an order in the nature of certiorari removing the legal effect of the opinion if the medical panel in fact made an error of law in forming the opinion: an error of law in forming the opinion, if made, will appear on the face of the written statement. To require less would be to allow an error of law affecting legal rights to remain unchecked. To require more would be to place a practical burden of cost and time on decision-making by an expert body for no additional legal benefit and no identified systemic gain.

The standard required of a written statement of reasons given by a medical panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the medical panel in fact arrived at the opinion the medical panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the medical panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.

The standard required of the written statement of reasons which s 68(2) of the Act obliges a Medical Panel to give for its opinion is that the statement must explain the actual process of reasoning by which the Medical Panel in fact formed its opinion and must do so in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law.

By operation of s 10 of the Administrative Law Act, such reasons as are given by a Medical Panel form part of its opinion and part of the record of that opinion. Such continuing legal effect as an opinion might have may be removed by an order in the nature of certiorari for an error of law on the face of the record where the reasons given do not meet the standard required of a written statement of reasons by s 68(2) of the Act.

70 In Bluescope Steel Ltd v Nisselle, Osborn J addressed the need for panels appointed under the AC Act to give reasons particularly in the light of s 8(4) of the Administrative Law Act 1978 (Vic).[34]

71 By contrast, the Court of Appeal in Colquhoun[35] held that Part VBA of the Act imposes no statutory obligation on a medical panel appointed under the Act to give reasons for its decisions. The relevant provisions of the Act disclose a legislative intention that a medical panel provide a written determination (on the question whether the degree of impairment satisfied the threshold level) but no written reasons for that determination.[36] A medical panel appointed under Part VBA of the Act has the specific statutory function of deciding a medical question - and no more. It performs its function before any proceeding has been issued. It does not act 'in aid of' the judicial function. Rather, a panel's assessment under Part VBA of the Act will determine whether there will be any proceeding at all for non-economic loss.[37] While it is always open to the legislature to impose on an administrative decisionmaker an express obligation to provide reasons so as to render the provision of adequate reasons a condition of the validity of the decisionmaker's exercise of power, this has not been done in the case of medical panels appointed under the Act.

72 The Court of Appeal followed the earlier decision of the Court of Appeal in Sherlock v Lloyd[38] concerning the AC Act, as it was at that time, to the effect that provision of an inadequate statement of reasons is not, in itself, an error of law. Subsequently, the AC Act was amended to require medical panels appointed under that Act to give reasons for the opinions which they gave on referred medical questions.[39] No similar legislative amendment has been made to the Act.

73 In Colquhoun, the Court of Appeal discerned the legislative intention of the Act:[40]

When Pt VBA was inserted into the Wrongs Act in 2003, provisions requiring administrative decisionmakers to give reasons for decisions were a well established feature of Victorian legislation. We refer, for example, to s 8 of the Administrative Law Act 1978 (Vic), and to s 46 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic). It cannot be doubted that, if Parliament had intended that a medical panel giving a determination of impairment under the Wrongs Act be required to provide reasons for its determination, it could and would have said so.

In this statutory context, the fact that no such requirement was imposed necessarily implies a legislative intention that there be no such obligation. It follows that a purported direction by the Convenor is not only outside the scope of Pt VBA itself but contrary to the legislature's own intention regarding the functioning of a panel.

For these reasons, whilst a panel may choose to provide written reasons for the conclusions it reaches, it is not obliged to do so.

74 The Court concluded on the view that it had reached that "any inadequacy in the Panel's reasons could have no legal consequence, the Panel having been under no obligation to provide reasons" albeit that it also found that there was no inadequacy of reasons in the circumstance of the case.[41]

75 These reasons are consistent with those given by the Court of Appeal in the earlier case of Sherlock v Lloyd where the Court concluded that:[42]

Since an administrative tribunal has no obligation to provide reasons unless the statute under which the decision was made expressly or impliedly so requires, it cannot be correct to say that in the absence of such a requirement, the tribunal's failure to provide reasons or adequate reasons is of itself an error of law. Accordingly, and for the reasons we have given, the failure by a medical panel to provide adequate reasons in response to a request under s 8(1) of the ALA is not in itself an error of law. Those cases which have reached, or relied on, a contrary view must be regarded as having been wrongly decided, and must be overruled.

76 The decision of the Court of Appeal in Colquhoun[43] is, of course, binding on a judge at first instance and the law as expressed in it and in the earlier decision of Sherlock v Lloyd[44] stands to be applied. In Colquhoun, the Court of Appeal held that any inadequacy in the reasons of a panel appointed under the Act can have no legal consequence. In Sherlock v Lloyd, the Court of Appeal held that where no legal obligation exists to give reasons a person aggrieved has no ground of complaint for want of reasons. The failure to provide reasons or adequate reasons is not an error of law, unless the statute under which the decision was made expressly or impliedly so requires.[45] It inevitably follows that a failure to give adequate reasons in the present case is not an error of law. As a result, there is no legal basis on which the Court could order the panel to provide further and better reasons, as the panel is not under any obligation under the Act to give reasons in the first place.

77 Ground 11 which alleges in various ways that the panel failed to provide adequate reasons is not open having regard to the decisions of the Court of Appeal in Colquhoun,[46] and Sherlock v Lloyd.[47] Mr Pillay acknowledged as much in his submissions in reply where he stated that Dr Kowal did not seek to quash the panel's determination by reason of a failure to provide adequate reasons. A footnote to the submissions in reply states that "Such relief is not available on the ground posited by reason of Colquhoun v Capitol Radiology [2013] VSCA 58. Special leave was refused by the High Court on 13 December 2013".[48]

78 The originating motion issued on behalf of Dr Kowal and the summons on originating motion do not seek an order in the nature of certiorari quashing the determination in relation to ground 11. The relief sought in relation to ground 11 according to the submissions in reply is an order for further and better reasons.[49] No legal basis on which this can be done is advanced.

79 In view of the absence of any legal obligation to provide reasons or adequate reasons as held in Colquhoun,[50] and in Sherlock v Lloyd,[51] ground 11(a) must inevitably fail. Equally, the various failures alleged in grounds 11(b) to 11(g) do not arise as the panel is under no legal obligation to address the suggested topics or provide the required explanations in its reasons.

80 For the reasons that I have given, none of the grounds set out in the originating motion are substantiated. All fail as I have set out above. The determination of the panel will stand. The originating motion will be dismissed.

(an infant who sues by his Litigation Guardian Spiros Iliopoulos)

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

[2] Ibid s 28LF(1)(a), (aa), (b).

[3] Ibid s 28LB.

[5] Ibid s 28LG.

[6] Ibid s 28LH(1)(a) and (b).

[7] Summers v Director of Housing [2012] VSC 395 [11] (Dixon J).

[8] Wrongs Act 1958 (Vic) s 28LB.

[9] Ibid s 28LN.

[10] Ibid s 28LN(2).

[11] Ibid s 28LWE(1).

[12] Ibid s 28LZA and reg 7 of the Wrongs Act (Part VBA) Regulations 2005 (Vic).

[13] Wrongs Act 1958 (Vic) s 28LB.

[14] Ibid s 28LZG(2)(a); Colquhoun v Capitol Radiology Pty Ltd [2013] VSCA 58 [11] (Maxwell P, Weinberg JA and Ferguson AJA) ('Colquhoun') (Special leave to appeal was refused by the High Court - see Colquhoun v Capitol Radiology Pty Ltd [2013] HCATrans 320).

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

[16] Ibid s 28LZ(2).

[17] Ibid s 28LZG(1).

[18] Ibid s 28LH(1)(a)(i).

[19] Ibid s 28LZG(4).

[20] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 351-2 [82]-[83].

[21] [2006] VSC 499 [21], affirmed in Mountain Pine Furniture Pty Ltd v Taylor [2007] VSCA 146; (2007) 16 VR 659.

[22] [2009] VSC 311 [24]-[28], approved in Vic WorkCover Authority v Elsdon [2013] VSCA 235 [49].

[23] [2013] VSC 262 [45]-[46] (footnotes omitted).

[24] [2011] VSC 245 [76] ('Alcoa'); Also quoted by Kyrou J in Hatswell v Victoria [2013] VSC 262 [47], and Osborn J in Chua v Lowthian [2011] VSC 468 [131].

[25] Alcoa [2011] VSC 245 [76].

[27] [2011] VSC 468.

[29] [2011] VSC 468 [160], [161(6)-(8), (12)-(13)].

[30] Alcoa [2011] VSC 245 [66]-[67]; Chua v Lowthian [2011] VSC 468 [132]-[135]; Hatswell v Victoria [2013] VSC 262 [46]-[47].

[31] See [17]-[23] above.

[32] [2013] HCA 43; (2013) 303 ALR 64, 79 [54]-[55] (French CJ, Crennan, Bell, Gageler and Keane JJ).

[34] [2008] VSC 72 [71]-[77] (footnotes omitted).

[35] [2013] VSCA 58.

[38] [2010] VSCA 122; (2010) 27 VR 434 (Maxwell P, Ashley JA, Byrne AJA).

[39] Colquhoun [2013] VSCA 58 [24].

[42] [2010] VSCA 122; (2010) 27 VR 434 [74].

[43] [2013] VSCA 58.

[44] [2010] VSCA 122; (2010) 27 VR 434.

[46] [2013] VSCA 58.

[47] [2010] VSCA 122; (2010) 27 VR 434.

[48] Submissions of the plaintiff in reply to the third defendant's submissions dated 18 December 2013, paragraph 5 and fn 4.

[50] [2013] VSCA 58.

[51] [2010] VSCA 122; (2010) 27 VR 434.