Plaintiff v Defendants

Supreme Court of Victoria|2016-06-24|Before: McDONALD J

ADMINISTRATIVE LAW - Judicial review - Procedural fairness - Diagnosis that could not reasonably be anticipated - Panel's reasons for opinion quashed - Medical questions remitted for reconsideration by fresh panel - Supreme Court (General Civil Procedure) Rules 2015, O 56; Workplace Injury Rehabilitation and Compensation Act 2013, s 274(1)(b).

1 Craig Sargent was employed by the sixth defendant, Qube Ports Pty Ltd ('Qube'), as a stevedore from February 2000 to February 2014.

2 On 26 July 2012, Mr Sargent lodged a claim for weekly payments of compensation and medical and like expenses pursuant to the Accident Compensation Act 1985 alleging injury to his right knee said to have occurred during the course of his employment on 18 July 2012. That claim was accepted. By notice dated 25 February 2013, Mr Sargent's entitlement to weekly payments and medical and like expenses was terminated with effect from 14 March 2013 and 28 March 2013 respectively. On 30 April 2014, Mr Sargent submitted a further claim for compensation for an injury to his right knee and quadriceps sustained throughout the course of employment. That claim was also rejected.

3 On 26 September 2013, Mr Sargent commenced proceedings in the Magistrates' Court of Victoria at Melbourne against Qube in respect of the termination of his weekly payments of compensation. On 29 September 2014, on the application of Qube, Magistrate Wright referred certain medical questions to a medical panel pursuant to s 274(1)(b) of the Workplace Injury Rehabilitation and Compensation Act 2013.

4 A medical panel comprising the first to fifth defendants was convened to give its opinion in connection with the referred medical questions ('Panel'). The Panel provided a certificate of opinion dated 9 February 2015 ('Opinion'). The Panel also provided reasons for opinion dated 9 February 2015 ('Reasons').

5 The Panel concluded that Mr Sargent sustained a small quadriceps insertional tear, and an exacerbation of pre-existing suprapatellar bursitis as a consequence of the injury on 18 July 2012.[1] However, the Panel considered that Mr Sargent no longer suffered from these conditions.[2] The Panel noted that Mr Sargent did have a decreased range of motion of the right knee and symptoms in the right knee ('knee dysfunction').[3] The Panel considered this reflected right patello-femoral joint dysfunction, to which Mr Sargent would have been predisposed by underlying maltracking of the patella ('maltracking finding').[4] The Panel considered the patello-femoral joint dysfunction was not work related, but was constitutional in origin.[5]

6 By an amended originating motion filed on 15 April 2016, Mr Sargent seeks an order quashing the Panel's Opinion and Reasons and remitting the referred medical questions to a differently constituted medical panel.

7 The amended originating motion and the written submissions in support thereof raised a large number of grounds of alleged jurisdictional error. However, by the time the matter was heard by me on 13 May 2016, Mr Harrison QC, who appeared with Mr Dunstan on behalf of Mr Sargent, advanced two principal grounds of challenge to the Panel's Reasons:

(a) that Mr Sargent was denied procedural fairness by reason of not being afforded an opportunity to place material before the Panel in respect of the maltracking finding; and

(b) that there was no evidentiary foundation for the maltracking finding.

8 I have concluded that Mr Sargent was denied procedural fairness by not being afforded an opportunity to place material before the Panel in respect of the maltracking finding. He is entitled to an order in the nature of certiorari quashing the Opinion and Reasons of the Panel. I have concluded that the second ground of challenge to the Opinion and Reasons is not made out.

9 It is well established that a medical panel is required to afford procedural fairness to a party whose interests may be adversely affected by a decision of a panel. In North v Homolka, Ashley JA stated:

In some circumstances, a panel might be obliged to fragment its consideration of a matter in order to accord a party procedural fairness. Barrett Burston was such a case. So was Calleja v Franet Pty Ltd.

But what are those circumstances? A panel is an expert tribunal. It is entitled to rely upon its expertise in making its determination. Here, the Panel's expertise was in part the expertise of Dr Homolka, an occupational physician. She might be expected to understand a good deal about job descriptions. It would go too far, and the authorities do not require it, to say that every resort by a panel to its own knowledge and expertise, not communicated to a party, will constitute want of procedural fairness. It will, I think, be a matter of fact and degree in every case, but speaking generally a want of procedural fairness is likely to be disclosed where a finding by a panel is unexpected, could not have been reasonably anticipated, or would not obviously be open on the known material. Barrett Burston and Calleja were exemplars of that kind of situation.[6]

10 In Barret Burston Malting Co Pty Ltd v Kotzman,[7] a medical panel had concluded that the worker's 'current psychiatric presentation is consistent with a factitious disorder, in the context of systemic framing of physical complaints and illness behaviour and secondary gain'.[8] The employer contended that it had been denied procedural fairness because there had been no express reference to the diagnosis of a factitious disorder in any of the material that had been supplied to the panel.[9]

11 Cavanough J concluded that the employer had been denied procedural fairness by not being afforded a reasonable opportunity to address the diagnosis of factitious disorder. His Honour stated:

A medical panel can also breach the hearing rule in relying upon its own medical expertise to form an opinion - say, as to diagnosis, or, say, as to an aspect of disability previously unnoticed by other medical examiners - such that it could be said that a party did not have a fair opportunity to have that proposed adverse conclusion explored with its own experts. In such a situation, the aggrieved party has been denied a fair opportunity to be "heard" (for instance, through submitting its own medical reports or written submissions) on the issue. Calleja v Franet Pty Ltd is an example of the Supreme Court giving relief in such an instance.[10]

12 In Vegco Pty Ltd v Gibbons,[11] Kyrou J (as his Honour then was) stated:

A medical panel is bound to observe the rules of natural justice in favour of persons whose rights are liable to be affected by its opinions on medical questions. A medical panel may breach the rules of natural justice where it relies on new information provided to it by the worker during an examination by the medical panel, a new medical report, evidence that has not been seen previously by the worker or a matter within the panel's own medical expertise and does not, prior to reaching a final opinion, provide the substance of this new information, evidence or matter to the parties affected by its opinion and give them a reasonable opportunity to address it.[12]

13 In Calleja v Franet Pty Ltd,[13] a medical panel's reasons for opinion included a finding that a number of symptoms described by Ms Calleja were related to menopause and as such were not work related. Ms Calleja challenged the panel's reasons on the grounds that she was denied procedural fairness. It was contended on her behalf that until publication of the reasons it had never been suggested that her conditions may have been related to menopause. It was submitted on behalf of her employer that the issue of menopause had been raised during proceedings in the Magistrates' Court and that, as such, she had been provided an adequate opportunity to address the issue at that stage.[14] It was further submitted that the scheme of the Accident Compensation Act 1985 allowed the panel to rely on its own expertise when forming its opinion. As long as the worker had been given a fair opportunity to present her position to the panel, then the requirements of natural justice had been met.[15]

14 Vincent J concluded that Ms Calleja had been denied procedural fairness:

Apart from a few quite innocuous questions asked of the appellant at the Magistrates' Court, the answers to which were never challenged in any respect, there was no indication whatever that menopause was or could have been an issue. Nor was there in the medical reports forwarded to the Panel any suggestion or question that the symptoms of which Mrs Calleja was complaining could have been related to its onset.

Mr Fleming argued that the Panel was under no obligation to present its preliminary findings as a preliminary determination for further consideration and submissions by the appellant. In the ordinary course of events, this statement would undoubtedly be correct. However, in the particular circumstances of this case, Mrs Calleja had no way of knowing that the issue had arisen, the Panel should have informed her that it may arrive at the view that her symptoms were related not to her work injury but to a quite separate condition.

Given the finality of its decision (see s 68(4) of the Act which states that the opinion of a Medical Panel "must be accepted as final and conclusive by any court, body or person") and the effect that it would have upon her legal rights, the concept of procedural fairness required in the particular circumstances of her case that Mrs Calleja be informed about the basis upon which it arrived at its view which, accordingly, should have been regarded as preliminary or tentative.

This is so because it must have been apparent to the Panel, that had before it the transcript of the Magistrates' Court proceedings, the pleadings and numerous medical reports, that in none of which documents was there any suggestion that menopause was an issue in Mrs Calleja's case. She should have been afforded an opportunity to present material on this issue.[16]

15 The issue in dispute is whether or not Mr Sargent's knee dysfunction is work related or, as found by the Panel, constitutional in origin. The Panel accepted that Mr Sargent had sustained injuries in the course of his employment, namely a quadriceps insertional tear and exacerbation of suprapatellar bursitis. However, it concluded that Mr Sargent no longer suffers from these conditions. The Panel also found that his pulmonary embolism and venous thrombosis have now resolved.[17] The Panel further found that Mr Sargent's mild chronic adjustment disorder with depressed and anxious mood is materially contributed to by the claimed injury, but that his psychiatric condition is mild, and that his capacity for either his pre-injury duties or alternate work is not affected by the psychiatric condition.[18] The Panel concluded that Mr Sargent's knee dysfunction reflected right patello-femoral joint dysfunction, to which Mr Sargent was predisposed by underlying maltracking of the patella.

16 Mr Harrison QC submitted that the Panel's diagnosis that Mr Sargent's knee dysfunction was constitutional in nature, particularly insofar as it relied upon the maltracking finding, was unexpected, could not have been reasonably anticipated and/or would not have obviously been open to Mr Sargent and his advisers on the known material.[19] Mr Harrison submitted that, prior to the publication of the Panel's reasons on 9 February 2015, no medical practitioner had previously diagnosed Mr Sargent as having maltracking of the patella.[20] A report of a radiologist, Dr Peter Smith, dated 8 August 2012 in respect of an MRI scan of Mr Sargent's right knee, did not record any finding regarding maltracking of the patella. Further, the written submissions filed on behalf of Qube in the Magistrates' Court proceeding, a copy of which had been provided to the Panel, did not contend that Mr Sargent's knee dysfunction was in any way related to maltracking of the patella. Insofar as those submissions contended that the origins of Mr Sargent's knee dysfunction was constitutional as opposed to work related, the submissions contended that his symptomatology was due to a constitutional gout condition.[21]

17 Mr Harrison submitted that in the circumstances set out above, the principles identified by Ashley JA in Homolka were engaged. In particular, he submitted that the combined effect of the three circumstances set out above was such that the Panel's maltracking finding was unexpected, could not have been reasonably anticipated and/or would not have been obviously open on the material known to the plaintiff and his advisers.

18 Mr Fleming QC, who appeared with Mr Kumar for Qube, submitted that there was no basis upon which the Court could conclude that Mr Sargent had been denied procedural fairness by not being afforded an opportunity to place material before the Panel in respect of the maltracking finding.[22] He submitted that the Panel's diagnosis of constitutional patello-femoral joint dysfunction could not be said to be unexpected or incapable of being reasonably anticipated.[23] Qube's written submissions included the following:

The Panel's identification of a medical condition which explained the plaintiff's right knee symptoms, and which was not related to his employment, could not be said to be "unexpected" or incapable of being reasonably anticipated. In particular:

(a) The notice of Xchanging [sic] dated 25 February 2013 terminating the plaintiff's entitlement to weekly payments and medical and like expenses noted that any incapacity or need for medical treatment was not related to a compensable injury.

(b) The sixth defendant's written submissions to the Panel plainly stated, at paragraph 14, that "it seems that the majority of doctors have difficulty in identifying any real work component in the Plaintiff's knee condition now". The submissions continued, at paragraph 15: "the Panel ought to find that the Plaintiff now has no work-related injury ...".

(c) The MRI of the plaintiff right knee on 31 January 2013 was reported to show "evidence of very early patellofemoral degenerative change", which is consistent with the Panel's diagnosis.

(d) Mr Ian Jones, in his report of 16 July 2014, identifies as a factor in the diagnosis of the plaintiff's right knee condition "some mild patellofemoral wear problems". That should be understood as being separate to any "possible injury" which the plaintiff suffered, particularly where Mr Jones went on to state that he was "uncertain as to whether this patient's current right knee condition is work related".

(e) Mr Iain McLean, in his report dated 8 August 2013, identifies "symptoms and problems that relate to his quadriceps patellofemoral mechanism that has been rendered symptomatic and problematic by his work activities and his work incidents/injuries of 2010 and 2012". Properly understood, Mr McLean was diagnosing a constitutional problem with the plaintiff's patello-femoral joint (he also refers to "some mild underlying patellofemoral chondral pathology"), albeit that he considered that this problem was then "rendered symptomatic and problematic" (i.e. but not caused) by his employment.

(f) John Keller, in his report dated 23 January 2014, similarly identified "that a combination of both the patella tendinopathy, coupled with both patellofemoral joint syndrome and some chondral changes in the right knee were the likely cause of his symptoms".

Thus, the plaintiff's suggestion that the Panel failed to accord procedural fairness by diagnosing, without advance warning to the parties, constitutional right patello-femoral joint dysfunction is untenable. The existence (or, at least, the possibility of the existence) of such a condition, together with an uncertain connection to employment was evident from the state of the medical material which was provided to the Panel.
Further, Mr McLean, who had been engaged by the plaintiff's solicitors, specifically considered the link between employment and that condition, reporting his opinion that it had been "rendered symptomatic and problematic". Thus, in the circumstances, the plaintiff cannot complain that he has not had an opportunity to be heard in respect of the diagnosis and a possible connection to employment. The Panel simply came to a different view to that expressed by the expert engaged by the plaintiff's solicitor.

19 During the course of the hearing on 13 May 2016, Mr Fleming submitted that any orthopaedic finding by the Panel in relation to Mr Sargent's knee fell 'within the area that was fairly exposed to the plaintiff's own doctors',[24] and that 'the plaintiff's doctors had an opportunity to say whatever they wanted to say about this matter'.[25]

20 Mr Fleming submitted that Ashley JA's reference in Homolka to a finding by a panel which was unexpected or could not reasonably have been anticipated 'on the known material' should not be construed as being limited to the material submitted to the panel:

No, Your Honour. You have to take care in preserving the entitlement of the panel to rely on its opinion, to rely on its expertise because they will conduct their own examination. It's in the nature of things that there will be examination findings that could be different because they are taken at a different time, for example.[26]

The known material must include the panel's own expertise.[27]

22 The following exchange took place between myself and Mr Fleming:

His Honour: So your submission is, and let me be clear on this and tell me if I'm wrong about this, that the finding of the medical panel in relation to the maltracking of the patellar was a finding which could have been reasonably anticipated, notwithstanding the fact that there is no reference to any such finding in any medical report and there's no reference to such a finding in the radiologist's report in respect of the MRI, to which the panel is having regard, and you make that submission that it could have been reasonably anticipated because the parties knew that the panel had the right to make its own enquiries and would be making its own enquiries.

Mr Fleming: Yes. If it were the case - - -

His Honour: That's a yes?

Mr Fleming: Yes, it is. If it were the case that the panel relied on a MRI that was not available to the worker's side, but it was. If no-one looked at it themselves, say they relied on the report and didn't bother to look at it themselves with a person of appropriate authority, that's too bad for them. They had the opportunity. It's a fair opportunity to be heard. That's the test in Kioa, that you're given a fair hearing.

If you choose not to avail yourself of your opportunity of looking at the MRI yourself or if you use a person who doesn't have sufficient expertise to wiffle [sic] out, then you've been the author of your own misunderstanding perhaps that you've come to, but ultimately it's whether there's been fair dealing and we say obviously there has. The MRI was available to their orthopaedic surgeons, they could have looked at it themselves if they wanted. If they had come to a different view about, or any particular view at all, they haven't said so.

The fact that they haven't articulated a view about it is neither here nor there.[28]

23 It is correct, as submitted on behalf of Qube, that prior to the Panel's examination of Mr Sargent on 8 December 2014, Mr Sargent had an opportunity to submit medical reports relating to the condition of his right knee. It is also correct that these reports included references to:

Evidence of very early patello-femoral degenerative change;
Some mild patello-femoral wear;
Some mild underlying patello-femoral chondral pathology; and
Patello-femoral joint syndrome and some chondral changes in the right knee.

However, none of these reports include any reference to maltracking of the patella. Significantly, Dr Smith's report of 8 August 2012 did not refer to this condition.

24 Mr Sargent was physically examined by three members of the Panel, Professor Disler, Mr Pianta and Associate Professor Romas on 8 December 2014. The notes of these Panel members arising from the examination were tendered in evidence.[29] The notes of Mr Pianta, an orthopaedic surgeon, record his finding 'no maltracking of patella'.[30] The notes of Professor Disler and Associate Professor Romas make no reference to any finding one way or the other regarding maltracking of the patella.

25 The material which was provided to the Panel is listed at Enclosures A and B to the Reasons. The material which is listed in these Enclosures does not include the MRI scan of 8 August 2012. It was an agreed matter between the parties that the reference in Enclosure A to 'MRI Right Knee' dated '08.08.2012' is a reference to the report prepared by the radiologist, Dr Smith. That report made no reference to maltracking of the patella.

26 It is clear from the Reasons that the basis of the maltracking finding was the Panel's consideration of the MRI scan which underpinned Dr Smith's report of 8 August 2012. Although Dr Smith's report records no finding as to maltracking of the patella, the Panel came to the view that the scan did disclose maltracking of the patella. Hence, the Reasons include the following:

'MRI scan of the right knee on 8 August 2012, showed maltracking of the patella';[31] and
'The Panel noted that the Plaintiff currently has a decreased range of motion of the right knee and symptoms in the right knee, and considered that this reflected right patello-femoral joint dysfunction, to which the Plaintiff would be predisposed by underlying maltracking of the patella (as noted on MRI).'[32]

27 Mr Fleming submitted that a distinction should be drawn between 'sub-findings' and the 'ultimate' findings.[33] He submitted that in the present case the maltracking finding was properly characterised as a sub-finding whereas the finding of right patello-femoral joint dysfunction was the ultimate finding. He submitted that the Panel's maltracking finding was 'just a very small step along the way'[34] as the Panel assembled its explanation for its ultimate finding.

A medical panel can also breach the hearing rule in relying upon its own medical expertise to form an opinion - say, as to diagnosis, or, say, as to an aspect of disability previously unnoticed by other medical examiners - such that it could be said that a party did not have a fair opportunity to have that proposed adverse conclusion explored with its own experts.[35]

29 The Panel's maltracking finding is an aspect of its diagnosis of right patello-femoral joint dysfunction. I do not accept Mr Fleming's characterisation of the maltracking finding as 'a very small step' along the way to the finding of right patello-femoral joint dysfunction. On a fair reading of the Panel's Reasons the maltracking finding was a significant aspect of the diagnosis of right paella-femoral joint dysfunction. I also reject Mr Fleming's distinction between 'sub-findings' and 'ultimate findings'. Cavanough J's judgment in Barrett Burston is authority for the proposition that a medical panel can breach the requirement to afford a party procedural fairness in relying upon its own medical expertise to form an opinion as to an aspect of a disability previously unnoticed by other medical examiners.

30 In support of his submission that the Panel's maltracking finding could not reasonably have been anticipated, Mr Harrison placed weight upon the contents of the written submissions filed on behalf of Qube in the Magistrates' Court which were provided to the Panel. Those submissions addressed the constitutional basis of Mr Sargent's knee dysfunction as follows:

In the defendant's submission the plaintiff's symptomatology is due to a constitutional gout condition that seems to flare from time to time. Accordingly, in the defendant's submission the Panel ought to find that the plaintiff now has no work-related injury or incapacity for suitable employment.[36]

31 In Kuek v Victorian Legal Aid & Anor,[37] I cited with approval the observations of the New South Wales Court of Appeal in Victims Compensation Fund Corporation v Nguyen[38] that 'the scope of an opportunity to make submissions may depend on the issues reasonably perceived as being "in the ring".'[39] Further, in Wales v Wales,[40] Ashley JA, having referred to the joint judgment of the plurality in Farah Constructions Pty Ltd v Say-dee Pty Ltd,[41] stated:

There, what happened was not unexpected fact-finding at first instance, but unexpected legal analysis by the Court of Appeal. It is, I think, implicit in the passage cited that what that court did might successfully have founded a complaint of denial of procedural fairness because the unsuccessful parties were precluded from calling evidence to meet the point.[42]

32 There is no suggestion in the written submissions filed by Qube in the Magistrates' Court that Mr Sargent's knee dysfunction was the result of a patello-femoral joint dysfunction to which he was predisposed by reason of maltracking of the patella. The only constitutional condition identified in those submissions was a gout condition that seems to flare up from time to time. To the extent that the issues for determination by the Panel were defined by the competing submissions which were filed in the Magistrates' Court, the question of whether Mr Sargent's knee dysfunction was due to patello-femoral joint dysfunction to which he was predisposed by reason of maltracking of the patella was not in the ring.

33 There are significant differences between the function carried out by a medical panel and the nature of a proceeding in a contested trial in a court. As the High Court observed in Wingfoot Australia Partners Pty Ltd v Kocak:[43]

The function of a Medical Panel is neither arbitral nor adjudicative. It was neither to choose between competing arguments nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.[44]

34 Notwithstanding the significant differences between the function of a medical panel and that of a court, the failure of the written submissions filed by Qube in the Magistrates' Court to make any reference to maltracking of the patella is relevant to whether the Panel's maltracking finding could reasonably have been anticipated.

35 Mr Fleming submitted that if any weight was attached to the failure of Qube's written submissions to make any reference to the maltracking of the patella, this would be irreconcilable with the approach adopted by Cavanough J in Luka v Firestone & Ors.[45] Mr Fleming submitted that the absence of any reference to the maltracking of the patella was 'no different from what happened in the Luka case before Cavanough J.'[46]

36 In Luka, the plaintiff contended that a medical panel denied her procedural fairness by failing to provide adequate notice of the panel's diagnosis of her psychiatric condition, namely:

An undiagnosed somatoform disorder, (specifically a Pain Disorder, now termed in DSM 5 as a Somatic Symptom Disorder with predominate pain) and from an Anxiety Disorder with intermittent panic symptoms prior to the commencement of her employment with the defendant in October 2008.[47]

37 Cavanough J concluded that there was no denial of procedural fairness:

The panel in fact accepted, and found, that the plaintiff was suffering from a Pain Disorder, which is a diagnosis that had been included in DSM 4 for many years and which is a well understood and well known concept. It is a concept which had been used in reports by many of the medical practitioners who had been involved in this matter since it became litigious, after the filing of the worker's claim for compensation. The expression 'Pain Disorder' was used in the reports either alone or in combination with other descriptors. It was so used by practitioners who had been consulted by the plaintiff herself, as well as by practitioners who had been consulted or engaged by the sixth defendant.[48]

38 There are significant differences between Luka and the present proceedings. In particular, Cavanough J found that 'Pain Disorder' was used in medical reports, including those prepared by doctors consulted by the plaintiff. Luka was not a case involving undisclosed sub-findings and disclosed ultimate findings. There was one diagnosis: Pain Syndrome. The plaintiff's own doctors had referred to this condition. As such, there was no basis for concluding that the panel's diagnosis of pain disorder could not reasonably have been expected or anticipated on the known material.

Conclusion regarding the procedural fairness ground

39 I have no hesitation in concurring with the observation of Ashley JA in Homolka that in every case it will be a matter of fact and degree as to whether a medical panel has failed to afford a party procedural fairness by reason of a finding which is unexpected, could not have been reasonably anticipated or would not obviously be open on the known material. The following matters weigh in favour of a finding that Mr Sargent was denied procedural fairness by not being afforded an opportunity to file material with the Panel in respect of the maltracking finding. First, none of the medical reports filed with the Panel made any reference to maltracking of the patella. Second, the radiologist's report of 8 August 2012 made no reference to maltracking of the patella. Third, the written submissions filed in the Magistrates' Court by Qube, which were provided to the Panel, made no reference to maltracking of the patella.

40 As discussed below, although the MRI scan is not listed in the Enclosures to the Panel's Reasons, Mr Sargent provided the scan to the members of the Panel when he was examined by them on 8 December 2014. Prior to attending that examination, Mr Sargent had been directed to take any relevant scans and/or x-rays with him to the examination.[49] The Panel members were entitled to consider the MRI scan and to form an opinion as to what medical condition it disclosed, based upon their own expertise. The question which arises is as follows: could it reasonably have been anticipated that based on the MRI scan the Panel would make a finding of maltracking of the patella where no such finding had previously been made by the radiologist who produced a written report based on the scan and none of the doctors who have previously examined Mr Sargent had made such a finding?

41 It should have been apparent to the Panel, based on the material which had been provided to it, that there had never been any suggestion that Mr Sargent had maltracking of the patella.[50] The Panel was entitled to consider the MRI scan and form its own opinion as to the existence of maltracking of the patella. However, having formed that opinion, the Panel should have provided Mr Sargent with an opportunity to place material before the Panel in respect of the diagnosis.

42 The MRI scan was dated 8 August 2012. I accept Mr Fleming's submission that Mr Sargent's doctors could have availed themselves of the opportunity to examine the MRI scan (although none appear to have done so). The MRI scan was part of the 'known material'. However, the maltracking finding could not 'obviously be open'[51] based on the scan. Whilst the MRI scan had been in existence (and presumably in Mr Sargent's possession) since August 2012, it was not referred to in any medical report. Dr Smith's report of 8 August 2012 recorded no finding of maltracking of the patella. Thus, the radiologist charged with the task of recording the medical conditions disclosed by the MRI scan recorded no finding of maltracking of the patella. In the circumstances, Mr Sargent and his advisors were entitled to prepare for the Panel's deliberations on the basis that the MRI scan did not disclose maltracking of the patella.

43 The fact that the maltracking finding was but an aspect of the diagnosis of patello-femoral joint dysfunction did not relieve the Panel of the requirement to afford Mr Sargent procedural fairness in respect of this finding. The finding could not have been reasonably anticipated on the known material. This conclusion is reinforced by the fact that, as evidenced by the notes of examination of Mr Pianta, when the Panel examined Mr Sargent on 8 December 2014 that examination disclosed no maltracking of the patella. When this finding is combined with the report of Dr Smith in respect of the MRI scan, the Panel's maltracking finding is legitimately characterised as one which could not have been reasonably anticipated on the known material.

44 A finding that Mr Sargent was not afforded procedural fairness does not automatically translate into an entitlement to relief. During the course of the hearing I raised with both Mr Harrison and Mr Fleming the question of whether, if Mr Sargent had been afforded an opportunity to place material before the Panel in respect of the maltracking finding, this would have made any difference to the Panel's ultimate conclusion that he was not suffering from a work related condition.

45 The Panel accepted that Mr Sargent had sustained work related injuries, namely a small quadriceps insertional tear and an exacerbation of pre-existing suprapatellar bursitis. It also found that he had suffered from deep vein thrombosis and pulmonary embolism. However, the Panel considered that these conditions had resolved. The Panel's maltracking finding was relevant only to its conclusion that Mr Sargent's ongoing knee dysfunction (i.e. right patello-femoral joint dysfunction) was constitutional in origin, rather than work related. Irrespective of whether Mr Sargent was denied procedural fairness in respect of the Panel's finding that he was predisposed to right patello-femoral joint dysfunction by reason of underlying maltracking of the patella, this may not impeach the Panel's finding that Mr Sargent does not have any ongoing work related incapacity.

46 I raised with Mr Fleming the possibility that, notwithstanding the fact that the Panel had considered the issue of maltracking of the patella in the context of its finding that Mr Sargent's knee dysfunction was constitutional in origin, there was potential that any material which Mr Sargent filed in relation to the maltracking finding could impact on the question of whether he suffered from ongoing work related incapacity. The material placed before the Panel included details of an injury sustained by Mr Sargent in 2010 when he fell down the hole in a ship and suffered a twisted knee. It is possible that Mr Sargent may agree that he does suffer from maltracking of the patella but will contend that this was caused or exacerbated by the injury which he sustained in 2010. Alternatively, if Mr Sargent obtains medical evidence that he does not have maltracking of the patella, this may undermine one of the bases upon which the Panel concluded that Mr Sargent's ongoing knee dysfunction was constitutional in origin, rather than work related.

47 When I raised with Mr Fleming the possibility that either of these two hypotheses could be advanced on behalf of Mr Sargent he responded:

Mr Fleming: Yes. It isn't open and shut.

His Honour: No.

Mr Fleming: That's why, presumably - I think there's only one case that I can think of where a court has ordered that a single question. The general view is, if there's an error, particularly a procedural fairness error, I would readily concede that a court would generally take a procedural fairness problem as serious and liable to contaminate the entire exercise. That would be, I would concede, the general views of courts.[52]

48 Mr Fleming's submission, as set out above, is consistent with authority. In Ucar v Nylex Industrial Products Pty Ltd,[53] Redlich JA stated:

Procedural fairness must be upheld for its own sake, as well as for its consequences because 'the experience of the common law [is] that, out of fair and lawful procedures, fair and lawful outcomes will more commonly emerge'. The concern is with the fairness of the procedure adopted rather than the fairness of the outcome; with the decision-making process not the decision. The true legal issue 'is not only, whether the person adversely affected by a decision has had his or her legitimate expectations disappointed. That may be a consequence of the departure from the legal standard; but it is not the invalidating cause.[54]

49 The passage set out above was cited with approval by the Victorian Court of Appeal in Wales v Wales.[55] Further, in Bahonko v Moorfields Community, Nettle JA with whom Buchanan and Redlich JJA agreed, stated:

The authorities are clear that, once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach of natural justice could not have made a difference, and that it is no easy task for a court to satisfy itself that what appears on its face to have been a denial of natural justice could not have a bearing on the outcome. In effect, the onus is on the respondents, therefore, to demonstrate that whatever the appellant might have wished to submit or adduce in evidence to oppose the reference to VCAT, it would 'inevitably result in the making of the same order as that made by the primary judge at the first trial'.[56]

50 Consistent with the authorities set out above, I am not satisfied that had Mr Sargent been afforded an opportunity to place material before the Panel in relation to the maltracking finding, the Panel would inevitably come to the same conclusion that he did not suffer from any ongoing work related incapacity, and that any ongoing knee dysfunction was constitutional in origin.

Was the Panel's maltracking finding unsupported by any evidence?

51 Having regard to my finding in respect of the procedural fairness ground it is not necessary to deal with this ground. Nevertheless, for the sake of completeness, I shall do so.

52 The Panel's maltracking finding is premised upon the Panel having examined the MRI scan of Mr Sargent's right knee which was made on 8 August 2012. Thus, the Panel's reasons state:

• 'MRI scan of the right knee on 8 August 2012, showed maltracking of the patella';[57]

• '[T]he Plaintiff would be predisposed by underlying maltracking of the patella (as noted on MRI).'[58]

53 In paragraph [3] of its Reasons, the Panel expressly identified the material to which it had regard in forming its opinion. Enclosures A and B to the Reasons list the relevant material. Enclosure A includes a heading: 'Radiology'. There is an entry: 'MRI Right Knee' dated '08.08.2012'. It was an agreed matter before me that this is a reference to the written report of Dr Smith dated 8 August 2012 rather than the actual scan.[59]

54 When considering the reasons of a medical panel, the reasons 'are not to be construed minutely and finely with an eye keenly attuned to the perception of error'.[60]

55 Notwithstanding the fact that paragraph [3] of the Reasons in conjunction with Enclosures A and B do not refer to the MRI scan of 8 August 2012, a fair reading of the Reasons discloses that the Panel did have regard to the scan. Mr Sargent was requested to bring 'any X-Rays, CT Scans or other investigation results in your possession'[61] when he attended the medical examination conducted by the Panel on 8 December 2014.

56 The documents which comprise Enclosures A and B are the same as those documents which were listed in the Schedule of the letter to Mr Sargent from the convener of medical panels. However, these documents do not constitute an exhaustive list of the materials which were considered by the Panel. The letter to Mr Sargent of 31 October 2014 specifically requested him to provide additional material.

57 Mr Sargent deposed that he currently has in his possession an x-ray of his right knee dated 8 May 2010 and 'MRI musculo-skeletal system, dated 8 August 2012'[62] with a report, which he believes to be of his right knee. He deposed that he does not recall whether he took the x-ray and the MRI scan to his appointment with the Panel on 8 December 2014.[63]

58 Mr Sargent was requested to bring the x-ray of 8 May 2010 and the MRI scan to his appointment with the Panel on 8 December 2014. I infer that he did do so and that the Panel looked at this material at the time when he was examined. Where the Panel states in its Reasons that the 'MRI scan of the right knee on 8 August 2012, showed maltracking of the patella', this should be read as a reference to the Panel having actually looked at the MRI scan. Consequently, there is no basis for upholding the plaintiff's contention that there was no evidentiary foundation for the Reasons, insofar as the Reasons relied upon the MRI scan of 8 August 2012.

59 Mr Sargent has established that he was denied procedural fairness by reason of not being afforded an opportunity to place material before the Panel in respect of the maltracking finding. The Court will make an order in the nature of certiorari quashing the Panel's Opinion and Reasons of 9 February 2015. I shall provide the parties with an opportunity to make submissions on the question of costs.

[1] Affidavit of Gary Clark sworn 29 June 2015, Exhibit GRC-7, Reasons, 10.

[6] [2014] VSC 478, [103]-[104] (citations omitted).

[7] [2013] VSC 248 ('Barret Burston').

[17] Affidavit of Gary Clark sworn 29 June 2015, Exhibit GRC-7, Reasons, 11.

[19] See Transcript of Proceedings, Sargent v Disler (Supreme Court of Victoria, S CI 2015 01452, McDonald J, 13 May 2016) T96 LL23-30.

[21] Affidavit of Gary Clark sworn 29 June 2015, Exhibit GRC-6, Defendant's Submissions dated 21 August 2014 in proceeding No D12944420 in the Magistrates' Court of Victoria, [15].

[22] See Transcript of Proceedings, Sargent v Disler (Supreme Court of Victoria, S CI 2015 01452, McDonald J, 13 May 2016) T52 LL11-19, T58 LL7-23.

[29] Affidavit of Robert Shepherd sworn 11 May 2016, Exhibits RJS-3 - RJS-5.

[31] Affidavit of Gary Clark sworn 29 June 2015, Exhibit GRC-7, Reasons, 9.

[33] Transcript of Proceedings, Sargent v Disler (Supreme Court of Victoria, S CI 2015 01452, McDonald J, 13 May 2016) T69 LL5-7.

[35] Barret Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248, [34] (emphasis added).

[36] Affidavit of Gary Clark sworn 29 June 2015, Exhibit GRC-6, Defendant's Submissions dated 21 August 2014 in proceeding No D12944420 in the Magistrates' Court of Victoria, [15].

[42] Wales v Wales [2014] VSCA 101, [68].

[46] Transcript of Proceedings, Sargent v Disler (Supreme Court of Victoria, S CI 2015 01452, McDonald J, 13 May 2016) T65 LL5-9.

[47] Luka v Firestone [2015] VSC 522, [2].

[49] Affidavit of Gary Clark sworn 29 June 2015, Exhibit GRC-5.

[50] Cf Calleja v Franet Pty Ltd [1999] VSC 202, [25].

[51] North v Homolka [2014] VSC 478, [104].

[52] Transcript of Proceedings, Sargent v Disler (Supreme Court of Victoria, S CI 2015 01452, McDonald J, 13 May 2016) T86 LL10-19.

[54] Ibid 512, [57] (citations omitted) (emphasis in original).

[55] [2014] VSCA 101, [73]-[74] (Ashley JA with whom Almond AJA agreed).

[56] [2008] VSCA 6, [30] (citations omitted).

[57] Affidavit of Gary Clark sworn 29 June 2015, Exhibit GRC-7, Reasons, 9.

[59] Transcript of Proceedings, Sargent v Disler (Supreme Court of Victoria, S CI 2015 01452, McDonald J, 13 May 2016) T45 LL28-30.

[60] Minister for Immigration & Ethnic Affairs v Wu Shian Liang [1996] HCA 6; (1996) 185 CLR 259, 272, quoting Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280, 287. See also North v Homolka [2014] VSC 478, [60]; Luka v Firestone [2015] VSC 522, [6].

[61] Affidavit of Gary Clark sworn 29 June 2015, Exhibit GRC-5.

[62] Affidavit of Gary Sargent sworn 11 May 2016, [6].

Court (General Civil Procedure) Rules 2015

Injury Rehabilitation and Compensation Act 2013

Compensation Act 1985

Workplace Injury Rehabilitation and Compensation Act 2013

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