Plaintiff v Defendants

Supreme Court of Victoria|2016-11-02|Before: Ginnane J

JUDICIAL REVIEW - Medical negligence claim - Medical Panel's determination as to degree of impairment - Whether finding of 'operative fractures' without evidentiary basis - Whether Panel misdirected itself in applying s 28LL(3) of the Wrongs Act 1958 - Jurisdictional error - Error of law on the face of the record - Statutory amendment of whole-person impairment threshold - Whether new threshold applies - Supreme Court (General Civil Procedure) Rules 2015 O 56; Wrongs Act 1958 ss 28LH, 28LL(3), , 28LZS.

STATUTES - Interpretation - Amending legislation - Effect on proceedings when Medical Panel assessment involves jurisdictional error - Interpretation of Legislation Act 1984 s 14(2); Wrongs Amendment Act 2015 s 28 LZS (2).

1 The plaintiff, Dr Caroline Tan, seeks judicial review of the determination of a Medical Panel ('the Panel'), constituted by the first and second defendants, dated 17 August 2015[1] regarding the whole person impairment of the third defendant, Ms Alison Were, for the purposes of Part VBA of the Wrongs Act 1958 ('the Act').

2 Ms Were had commenced proceedings in the County Court alleging negligence by Dr Tan, who is a neurosurgeon, in the performance of an operation.

3 The Certificate of Determination recorded the following medical question and the Panel's answer:

Question: Does the degree of impairment resulting from the injury to [Ms Were] alleged in the claim satisfy the threshold level?

Answer: The Panel determined that the degree of whole person impairment resulting from the injury to [Ms Were] alleged in the claim does satisfy the threshold level.

4 The application for judicial review was brought on two grounds. For convenience, I will refer to the first ground as the 'misdirection' ground and the second ground as the 'no evidence' ground. Ms Were was not in a position to oppose the no evidence ground, for reasons which appear below. In these circumstances, the parties did not dispute that the Court should refer the question asked of the Panel for rehearing by a different Medical Panel.

5 However, the parties contested the misdirection ground, which raised issues of interpretation on which they submitted that the Court should express an opinion. Dr Tan also requested that the Court consider whether the newly lowered threshold contained in the Wrongs Amendment Act 2015 that came into force on 19 November 2015 would apply to any subsequent reassessment of Ms Were by a newly constituted Medical Panel. For the reasons expressed at the conclusion of this judgment, it is my opinion that it would.

6 Ms Were had a prolapsed disc at C5-6 in her neck. Dr Tan operated on her on 13 November 2010 and removed the intervertebral disc and fused the joining vertebral bodies at C6-7. That was the wrong level. Dr Tan intended to undertake the fusion at the level of C5-6 where the prolapsed disc was. The correct operation on C5-6, with removal of the disc protrusion, was undertaken on the following day, that is, 14 November 2010, and involved reopening the left transverse neck incision made the previous day.

7 Ms Were commenced proceedings in the County Court for recovery of damages for non-economic loss against Dr Tan. The injuries pleaded in her Statement of Claim were:

(c) need for second operation on cervical spine with associated scarring; and

8 Dr Tan exercised her rights under s 28LWE of the Act to refer a medical question to a Medical Panel for assessment, namely, whether the degree of the whole person impairment resulting from the injury to Ms Were alleged in her claim satisfied the threshold level.

9 Part VBA of the Act provides for the threshold levels of impairment as a preliminary requirement to claims for the recovery of damages for non-economic loss resulting from personal injury. Section 28LE states that a person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury. Significant injury is defined in s 28LF including by reference to the degree of impairment satisfying the 'threshold level', which in turn is defined in s 28LB.

10 Section 28LB states that the term '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.

11 Section 28LL deals with 'Assessment in relation to injuries arising out of the same incident'. Subsection (3) states:

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

12 Pursuant to the operation of s 28LH(1)(a)(i) of the Act, the determination was to be made in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) ('the Guides').[2] The Guides must be interpreted consistently with the relevant provisions of the Act and are subordinate to the Act.

13 Chapter 3 of the Guides deals with the musculoskeletal system and chapter 3.3 concerns the spine. The Panel referred to the procedures listed in section 3.3f, 'Specific Procedures and Direction', as the starting point of their assessment. Those procedures set out ten steps. Step 9 states:

9. From historical information and previously compiled medical data, determine if there was a preexisting impairment. If the previously compiled data can be verified as being accurate, they may be used in apportionment (see Glossary). The percent based on the previous findings would be subtracted from the percent based on the current findings.[3]

14 The Panel determined the appropriate category of cervical spinal impairment was category 4, of 8 possible categories. That category is described in the following terms:

DRE Cervicothoracic Category IV: Loss of Motion Segment Integrity or Multilevel Neurologic Compromise

Description and Verification: The patient has loss of motion segment or structural integrity or bilateral or multilevel radiculopathy...

Structural Inclusions: (1) Greater than 50% compression of one vertebral body without residual neurologic compromise; (2) multilevel motion segment structural compromise without residual neurologic motor compromise, for example, multi-level fracture or dislocation.

Impairment: 25% whole-person impairment. [4]

15 The Guides provide that 'if the patient has a condition that meets the definition of a category that includes a Structural Inclusion, the physician need not determine if the other criteria for that category are present'.[5]

Does the degree of impairment resulting from the injury to [Ms Were] alleged in the claim satisfy the threshold level?

17 The Panel consisted of a neurosurgeon and musculoskeletal physician. They examined Ms Were on 26 May 2015 and published their reasons on 17 August 2015.

18 The Panel summarised Ms Were's evidence of her initial medical complaints and the mixed consequences of her operation, including that she 'currently suffers from a constant feeling of neck stiffness and soreness associated with occipital and occipitofrontal headaches'.[6]

[Ms Were] is currently suffering from residual dysfunction of the cervical spine secondary to a C5-6 disc protrusion treated operatively by a C5-6 discectomy and fusion (and C6-7 fusion) but without objective clinical evidence of radiculopathy. The Panel considers [Ms Were]'s medical condition is stable.

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

The Panel carried out the assessment of the cervical spine in accordance with the Specific Procedures and Directions in Section 3.3f on page 101 of the Guides.

The Panel assessed [Ms Were]'s cervical spine in accordance with Table 70 of Chapter Three.[7]

In submissions to the Panel dated 30 July 2015, the respondent states that 'The Convenor of Medical Panels requested submissions from the parties as to whether [Ms Were]'s two-level cervical vertebrae fusion could potentially be characterised as "multilevel motion segment structural compromise" and assessed accordingly under the DRE categories. This question erroneously pre-supposes that the impairment to be assessed by the Panel arises from the fusion at both C5-6 and C6-7.

[Ms Were]'s C5-6 fusion cannot be the subject of the impairment[8] by the Medical Panel of this Claimant as the compensable injury of which [Ms Were] complains, and can complain, is the fusion at C6-7 only. For this reason, [Ms Were]'s injury that is the subject of the impairment assessment by the Medical Panel is not a two-level, or multilevel, motion segment structural compromise. It is a single-level fusion.[9]

21 Nevertheless, the Panel decided that the process undertaken by Dr Tan over the course of the two separate interventions resulted in multi-level operative fractures, and that, consistently with prior decisions of this Court, such fractures constituted a structural inclusion within the meaning of DRE Category IV, stating:

The Panel noted that in Serwylo,[10] the Court decided the lumbosacral impairment fell within DRE Category IV because the proper construction of Structural Inclusion (2), fractures or dislocation at multi levels of the lumbar spine are, per se, instances of multilevel spine segment structural compromise for the purposes of that structural inclusion, and, that it was the element of fractures or dislocations at more than one level that differentiated Structural Inclusion (2) of Category IV from the corresponding structural inclusions in Categories II and III, which were explicitly only concerned with fractures at one level. This supported the Judge's interpretation of Structural Inclusion (2) of Category IV 'that fractures or dislocations of more than one spinal segment are, by their nature, instances of multilevel spine segment structural compromise'.

The Panel noted that, with respect to the current referral, the consequence of the two separate operative interventions is a two level spinal fusion. The Panel further considered that the process of achieving a two level fusion requires removal of endplates from adjacent vertebral bodies which compromises bony integrity at multiple levels which the Panel considers to be consistent with operative fracture of vertebral body endplates with removal of endplates to facilitate fusion. The Panel considered that there was multilevel operative fracture.

The Panel is therefore of the opinion that fractures at more than one level, by definition, satisfy the criteria of Structural Inclusion (2), regardless of the actual severity of the fracture, or its capacity to disrupt the spinal canal or otherwise compromise the structural integrity of the spine.[11]

22 The Panel finding automatically placed Ms Were into Category IV, that correlated to a whole person impairment of 25%.

the cervicothoracic spine in accordance with Table 70 of Chapter Three and concluded that there is multilevel motion segment structural compromise with clinical signs of cervicothoracic spine injury present, but without clinical evidence of radiculopathy.

The Panel assessed the appropriate category of impairment of the cervicothoracic spine and resulting whole person impairment in accordance with Table 73 of Chapter Three.

...

[T]he Panel considers it is inappropriate to use the Range of Motion Model as [Ms Were]'s spinal impairment could be adequately assessed the Diagnosis Related Estimates Model.

The Panel considered that there was no whole person impairment for surgical scarring when assessed in accordance with Table 2 of Section 13.5 of Chapter Thirteen.

...

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

...

The Panel considers that there is evidence of impairment from an unrelated injury or cause (being the onset of worsening right arm and neck pain secondary to a C5-6 disc protrusion that was ultimately treated by C5-6 discectomy and fusion on 14 November 2010) that is playing a part in [Ms Were]'s current impairment of which the Panel is required to disregard in accordance with Section 28LL(3) of the Act.[12]

24 Having concluded the percentage of whole-body impairment in accordance with DRE Category IV, the Panel sought to disregard certain injuries in accordance with s 28LL(3) of the Act. The Panel stated that evidence of impairment from an unrelated injury or cause described as 'the onset of worsening right arm and neck pain secondary to a C5-6 disc protrusion that was ultimately treated by C5-6 discectomy and fusion on 14 November 2010' was playing a part in Ms Were's current impairment and so concluded:

The Panel, applying it collective knowledge and expertise, disregarded an estimate of impairment (50% of current total impairment) from an unrelated injury or cause, and concluded that the degree of whole person impairment resulting from the injury [Ms Were] alleged in the claim is permanent and is more than 5%.[13]

25 The Panel determined that Ms Were, had a more than 5% whole person impairment, even with a 50% reduction for the impairment arising from the C5-6 discectomy.

26 Ground Two[14] of Dr Tan's claim was not contested by Ms Were, as she was 'not in a position to make any submissions to the contrary'[15]. Counsel for Ms Were stated that she could not disagree with the propositions advanced by Dr Tan as she only knew what the doctor said that she did in the operations.

27 I will consider it first. It was in essence, a form of a no evidence ground. It asserted that the Medical Panel:

made an error of law in determining whether the Third Defendant met the significant injury threshold level of whole person impairment within the meaning of s 28LH of the Wrongs Act 1958 (Vic) by informing itself that the Third Defendant had suffered fractures of C5,C6 and C7 during operations on 13 and 14 November 2010.

28 The ground then alleged that the Panel's certificate and reasons involved:

(a) making jurisdictional errors in determining that the neurosurgeon had removed, disrupted or fractured the Third Defendant's vertebral bony endplates;

(b) failing to take into consideration a relevant consideration by ignoring the handwritten and typed operation notes and the x-ray taken on 14 November 2010, and acted unreasonably by inferring that an operative procedure had taken place when it had not;

(c) breaching the rules of natural justice by not giving notice of its intention to rely on matters or giving a fair opportunity to be heard on those matters;

(d) committing a jurisdictional error by failing to take into account relevant considerations in the Guides.

29 Dr Tan, as part of her case in support of ground two, relied on the Panel's finding or assumption that Ms Were incurred fractures as a result of the removal of the vertebral endplates. That assumption was expressed in the Panel's reasons in the following passage:

The Panel noted that, with respect to the current referral, the consequence of the two separate operative interventions is a two level spinal fusion. The Panel further considered that the process of achieving a two level fusion requires removal of endplates from adjacent vertebral bodies which compromises bony integrity at multiple levels which the Panel considers to be consistent with operative fracture of vertebral body endplates with removal of endplates to facilitate fusion. The Panel considered that there was multilevel operative fracture.[16]

30 The material before the Panel, including clinical notes and x-rays, showed that no vertebral endplates were removed.

31 Dr Tan in an affidavit of 14 October 2015 swore that:

... There is currently no standardised, accepted neurological approach that requires removal of the vertebral endplates during discectomy and fusion. In recent years, it has been considered that end plate preservation is important in preventing a significant complication known as graft or implant subsidence. Subsidence is a well-known complication that can lead to nerve entrapment and spinal deformity.

It is, and was in 2010, my usual practice during discectomy and fusion, to avoid removing the endplates. Occasionally, some careful trimming or shaving of the endplates is required if the intervertebral disc is in an advanced state of chronic degeneration or the vertebral bodies have prominent bone spurs. If the bony vertebral endplates are removed, the trabecular bone in the vertebral body will be exposed and this increases the risk that the cage (inserted between the vertebrae to replace the disc) will subside into the vertebra, because the cage will be lying between sponge-like trabecular bone rather than the strong and dense endplates.

32 Dr Tan was never asked by the Panel whether she had removed the endplates. No evidence before the Panel suggested that the endplates had been removed, either in Dr Tan's handwritten and typed notes or in the x-rays.

33 Dr Tan submitted that the Panel had no factual basis on which to find that during the two operations she removed the vertebral body endplates and that no Panel, acting reasonably, could have determined that she had. The only plausible explanation for the Panel's assumption that the endplates had been removed was that a member of the Panel had relied on their own experience in conducting similar operations. That was an insufficient basis on which to make such a finding.[17]

34 The Panel failed to take into account a relevant consideration, being the written report of the x-rays taken of Ms Were's cervical spine on 14 November 2010, after the first operation and before the second operation, in which there was no report of fractures.

35 Ground two therefore succeeds. Dr Tan has established that the Panel made jurisdictional errors in determining that she had removed, disrupted or fractured Ms Were's vertebral bony endplates. There was no evidence to support that determination.[18] The Panel failed to take into account relevant considerations, being the notes and x-rays, breached the rules of natural justice and failed to take into account relevant considerations in the Guides.

Dr Tan's other ground, as expressed in the amended originating motion, was:

The first and second defendants, constituting a Medical Panel (the Panel) made jurisdictional errors in applying section 28LL(3) of the Act, as it asked the wrong questions, failed to take into account a relevant consideration and took into account a matter that it was not bound to.

36 Although, the effect of my acceptance of ground one is that the question referred to the Panel must be reheard by a differently constituted Panel, the parties desired that the Court express its opinion on the matters that ground one raises, to the extent that that was possible.

37 Section 28 LL is relevant to ground one and states:

28LL Assessment in relation to injuries arising out of the same incident

(1) If a person has more than one impairment resulting from injuries which arose out of the same incident, all of those impairments must be included in the one assessment.

(2) For the purposes of this Part, impairments, other than psychiatric impairments, resulting from injuries which arose out of the same incident are to be assessed together using the combination tables in the A.M.A. Guides or the methods prescribed for the purposes of this Part.

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

38 Dr Tan identified the alleged error made by the Panel as stated in ground one was contained in the Panel's opinion that the impairment that it was to assess arose from both the C5-6 fusion and the C6-7 fusion. The Panel had misdirected itself by asking the question: 'What is the impairment arising from both the C5-6 and C6-7 fusions together?'

39 The Panel was required to assess only Ms Were's impairment arising from the compensable injury, being the impairment arising from the C6-7 discectomy and fusion, and to disregard the impairment arising from the C5-6 operation. The Panel ought to have assessed Ms Were's C6-7 injury as a stand-alone impairment without regard to her C5-6 discectomy and fusion.

40 The Panel failed to take into account a relevant consideration, being the requirement of the Act that the only the injury to be assessed was an injury that was the subject of Ms Were's claim. It took into account the C5-6 fusion, which it was not permitted to take into account.

41 The two possible categories under the DRE to which the Panel referred were Categories II or IV. Ms Were's injury was clearly in category II, as her impairment was a minor impairment, as clinical signs of neck injury were present without radiculopathy. Because, Ms Were did not have a multi-level injury that was caused by the operation and because she did not have fractures, her injury could not fall within Category IV.

42 The particulars of injury contained in Ms Were's County Court claim are set out above. Dr Tan submitted that they did not contain any claim regarding the C5-6 fusion or discectomy. They include a reference to the need for a second operation, but that claim was confined to the injury consequent on the reopening the scar caused by the first operation. Ms Were's pleading did not suggest that the C5-6 fusion was an injury arising from the negligence of Dr Tan.

43 Dr Tan emphasised the following passage in the Medical Panel's reasons:

The Panel noted that, with respect to the current referral, the consequence of the two separate operative interventions is a two level spinal fusion.

44 Dr Tan submitted that the C5-6 fusion was not a consequence of the C6-7 fusion, which was the basis of the negligence proceeding.

45 The Panel started from a finding of fractures at multiple levels and, on that basis, placed Ms Were in Structural Inclusion (2) of Category IV. That provided her with an assessment of 25 per cent impairment. The Panel then divided that percentage by two to take account of there being two fusions, one of which was not negligently performed.

46 Dr Tan submitted that the Panel ought to have only considered the fusion at C6-7 level. Ms Were's impairment did not meet the requirements for a multilevel fracture, which is required for Structural Inclusion (2) in Category IV. The Panel failed to take into account the relevant consideration that it was to disregard the unrelated injuries for the purpose of assessing impairments.[19]

47 Dr Tan submitted that the term 'unrelated' in s28LL(3) meant unrelated to the tort, not to the injury. She contended that 'unrelated injuries' are those which are not negligently caused, and the unrelated injury in this case is the C5-6 fusion and discectomy.

48 Dr Tan also submitted that, for the purposes of the Guides, 'Structural Inclusions' are clinical conditions that determine that the patient's impairment automatically falls within the category for which those conditions are named. The physician need not determine if the remaining 'Description and Verification' sections of the category are met.[20]

49 Dr Tan referred to Chua v Lowthian,[21] where Osborn J held that the principles applied by J Forrest J in Alcoa Holdings v Lowthian,[22] regarding the assessment of impairment for the purposes of the Accident Compensation Act 1985, substantially applied to the corollary provisions in the Act. Section 28LL(3) of the Act is the corollary of s 91(7)(a) of the Accident Compensation Act 1985.

50 Regarding the application of s 91(7)(a) of the Accident Compensation Act 1985, J Forrest J in Alcoa Holdings held that:

At first glance s 91(7)(a) may convey two possible meanings. One, that in reaching the impairment assessment the requirement to disregard "an unrelated injury or cause" means the panel simply focuses on the current impairment and ignores any other contributing factor - such as a prior or subsequent injury. Such an interpretation would result in a windfall to the worker with compensation being paid for a degree of impairment that had no connection with the compensable injury ...

The second and correct meaning, in my view, is that, in making an impairment assessment, any impairment from an unrelated injury or cause is disregarded so as to ensure that the impairment assessment relates solely to that resulting from the compensable injury.[23]

51 The decision in Western Health v Gallichio,[24] recognised that the Panel could consider both the injuries and their sequelae or consequences, in that case scarring. The reasoning in Gallichio[25] could only encompass a consequence flowing directly from the allegedly negligent conduct - that is, in this case, from the C6-7 fusion.

52 Ms Were's alternative submission that a Range of Motion Model could be applied was not appropriate as it ought to be used only if there is a disagreement between members of the Panel.

53 Ms Were argued that the C6-7 fusion was the relevant injury and the Panel was required to consider impairments consequential on, or flowing from, that injury, which might in turn involve consideration of the C5-6 fusion.

54 The first task was to determine the relevant injury, which was the combination of the fusion of C6-7 and the removal of the disc between C6 and C7 and then to determine what impairments flowed from that injury. A fusion of more than one level might have more effect than the fusion of one level.

55 Ms Were's statement of claim had only particularised the one injury but it was incumbent on the Panel to consider all of the impairments relating to that injury, including the fact there is now a twolevel fusion rather than a one-level fusion. The particulars of injury did refer to the need for the second operation. The Panel could consider the alteration to the mechanics of the spine by reason of the additional level of fusion and the removal of the disc.

56 In support of this aspect of her case, Ms Were referred to an expert witness report, prepared for her County Court proceeding by Professor A Kaye, a neurosurgeon. Professor Kaye's report stated in relevant respects:

Specific Questions

The following are the responses to the specific questions listed on page 3 of your letter of 29 April.

The patient complains of continuing neck pain and stiffness. It is likely that this is directly related to the cervical spine pathology.
The patient had experience only minimal neck discomfort prior to the surgery, and it is probable that the neck discomfort is related at least in part in some way to the operation that was performed. The question is whether or not the two level fusion has contributed to any neck pain and stiffness that would have resulted from a fusion at a single (correct) level, being C5-6. It is my opinion that it is probable that a two level fusion is likely to have produced significantly more neck stiffness than a single level fusion, particularly if there was no significant preceding pathology at one of the levels. As such, it is my opinion that the inadvertent two level fusion is likely to have increased the degree of stiffness that the patient would have otherwise suffered if she had surgery at the single pathological level. (emphasis added)

In terms of the discomfort, it is probable, although not definite that the neck discomfort and pain, which occurred so quickly following surgery is related at least in part to the fusion at the second level. However, it is not possible for me to state categorically the pathological basis for the continuing neck discomfort, as I have not seen post-operative films, and in particular whether there has been a solid fusion at both levels.

The other issue is whether or not the two level fusion is more likely to increase the risk of degenerative changes at levels above and below the fusion, as this in itself could contribute to both the possible need for further spinal surgery in the future, and to continuing discomfort related to the development of degenerative changes.

If the continuing pain at the present time is related to progressive degenerative changes (unfortunately satisfactory cervical spine imaging was not provided), then it is likely that her symptoms will persist, and could possibly deteriorate. On the other hand, if the present symptoms do not relate to degenerative changes at adjacent levels, then it is less likely that the discomfort will progress. It is likely that she will have permanent neck stiffness.

57 Ms Were also noted that, in Gallichio[26], Pagone J expressed the view that the Medical Panel's consideration of 'post-surgical scarring' represented a consideration by it of the consequences of the incident which was said to have given rise to the impairment. Ms Were submitted that in this case, the alleged negligent treatment resulted in spinal fusion and discectomy at C6-7 and that a further consequence of the operation at the incorrect level was the requirement for surgery at the correct level C5-6. Ms Were has had spinal fusion and discectomy at two levels instead of one level as a direct consequence of Dr Tan's performance of the operation at the incorrect level.

58 Ms Were argued that the Panel had erred in dismissing the possibility that a multi-level fusion might be an example of the kind of Structural Inclusion defined in DRE Cervicothoracic Impairment Category IV. The Panel interpreted the examples in the category, being multi-level fracture or dislocation, to exclude fusion. Such an interpretation could not be justified from the language used in the Guides.[27] The Panel should have considered whether fusion could be another example of multilevel motion segment structural compromise. The Guides did not exclude fusion as a possible cause of multilevel loss of structural integrity, and it is possible that a twolevel fusion, as distinct from the onelevel fusion, could constitute multilevel motion segment structural compromise.

59 Ms Were relied on loss of motion segment integrity in contending that both C5-6 and C6-7 ought to be taken into account. The definition of that term contained in the Guide is something that affects two adjacent vertebrae.

60 If the descriptions of the eight categories of impairment offered insufficient guidance then the Panel ought to have considered the utility of the Range of Motion Model in accordance with the Guides' prescribed methodology.[28]

61 Ms Were agreed with Dr Tan's contention that the Panel's decision to divide the impairment assessment by two was an error. She described the error as the Panel making its calculation by the application of 'collective knowledge and expertise', thus failing to reveal a chain of reasoning. Ms Were did not dispute that an impairment from an unrelated injury or cause was to be disregarded. But, she submitted that the Panel erred in disregarding any impairments arising from the C5-6 fusion as this prejudged the nature of the impairments flowing from the C6-7 injury. The Panel's task was to 'look at all of the impairments flowing from the injury'.[29]

62 Dr Tan has also established ground one of her application as the Panel's approach to attributing 50 per cent of the 'current total impairment' to an unrelated injury or cause was based on the incorrect assumption that there had been multi-level fractures.

63 Upon reconsideration by a differently constituted Panel, its task will be to determine whether 'the degree of impairment resulting from the injury to Ms Were alleged in the claim does satisfy the threshold level' upon the material before it. The Panel must disregard impairments from unrelated injuries or causes.

64 That being the newly constituted Panel's task, although the parties requested guidance on a number of matters, I consider that I should limit further comments that I make. A number of the issues raised by the parties involve issues about which the new Panel will have to make findings. Nothing that I state hereafter should be taken as binding the newly constituted Panel as to how it should assess the material presented to it. That is a matter for the Panel and not for the Court when hearing a judicial review application.

65 However, it may be useful if I state that the Panel is entitled to take into account the consequences of an injury that is alleged in Ms Were's claim. The injury described in Ms Were's claim is associated with the C6-7 procedures and she does not allege that the C5-6 fusion or discectomy was negligent.

66 To take an example from the evidence in this application, in my opinion, if the new Panel reached the same or similar opinion to that expressed in Professor Kaye's report, namely, that Ms Were had 'significantly more neck stiffness' because of the two level fusion, then, it could, if it considered appropriate, choose to regard that outcome as a consequence of the injury, alleged in her particulars of her claim. The claim refers to the need for a second operation on her cervical spine with associated scarring. However, it will be a matter for the Panel to determine if it adopts that course. [30]

67 I propose then to refer to the relevant provisions of the Guides, which the new Panel will have to consider. The Guides state:

The evaluator assessing the spine should use the Injury Model, if the patient's condition is one of those listed in Table 70 (p.108). That model, for instance, would be applicable to a patient with a herniated lumbar disk and evidence of nerve root irritation. If none of the eight categories of the Injury Model is applicable, then the evaluator should use the Range of Motion Model.[31]

68 One condition described in Table 70 of the Guides[32], is:

Previous spine operation without loss of motion segment integrity or radiculopathy.

69 Loss of motion segment integrity is a criterion to help differentiate spine impairments and place them in impairment categories.[33] Loss of motion segment or structural integrity is defined by the Guides as:

[a]bnormal back-and-forth- motion (translation) or abnormal angular motion of a motion segment with respect to an adjacent motion segment.[34]

70 A motion segment of the spine is defined as two adjacent vertebrae, an intercalated disc, and the vertebral facet joints.[35]

71 It would be a matter for the new Medical Panel to decide on the material before it whether DRE Impairment Category II or IV applied to Ms Were's impairment. Category II attracts a 5% impairment assessment of the whole person, while Category IV attracts a 25% impairment assessment. Table 73 describes DRE impairment category II as:

Minor impairment: clinical signs of neck injury are present without radiculopathy or loss of motion segment integrity.

Loss of motion segment integrity or multilevel neurologic compromise

73 The other matter that the new Panel would need to consider is the Guides' 'Structural Inclusions'. The Guides state:

If the patient has a condition that meets the definition of a category that includes a structural inclusion, the physician need not determine if the other criteria for that category are present.[36]

74 The section of the Guides that deal with the 'description and verification' of Loss of Motion Segment Integrity or Multilevel Neurologic Compromise, contains two Structural Inclusions, the second of which Ms Were relied on. It states:

(2) multilevel motion segment structural compromise without residual neurologic compromise, for example, multi-level fracture or dislocation.[37]

75 I accept that the scope of this Structural Inclusion is not limited to the examples given, although the examples give some content to what may otherwise be regarded as a phrase lacking a 'degree of precision'[38]. It will be a matter for the new Panel whether it considers that Structural Inclusion (2) has any relevance to its assessment.

76 If the Panel determines that a condition described in Table 70 applies, the Range of Motion Model does not need to be applied.[39]

77 The Panel's determination and reasons dated 17 August 2015 contains two conclusions that involved jurisdictional errors and errors of law on the face of the record.[40]

78 The first error is that the Panel's conclusion on whether Ms Were had multiple fractures was not supported by any evidence. The Panel did not make proper enquiries as to whether Dr Tan had caused operative fractures during the course of the two operations.

79 The second error is that the Panel misconstrued its obligations pursuant to s 28LL(3) to disregard impairments from unrelated injuries or causes. The Panel took into account the impairment arising from the C5-6 fusion and discectomy and added it to the C6-7 fusion and discectomy and then subsequently deducted 50 per cent because of the C5-6 fusion. The Panel ought only to have considered the C6-7 procedures and any of their consequences that were included in Ms Were's claim.

80 There was no basis identified for the attribution of 50 per cent to a pre-existing impairment in the manner adopted by the Panel.

Does the new threshold apply? [41]

81 The Act was amended with effect from 19 November 2015. The Attorney-General in the second reading speech concerning the amending bill, explained that, whereas previously, the Act had described the threshold injury for non-economic loss for claimants of spinal injuries as 'greater than 5 per cent', the new wording lowered the threshold by changing the words to '5 percent or more'. This had the effect of aligning the compensation scheme, which operated on 5% increments, with the statute.[42]

(1) The definition of threshold level in section 28LB, as amended by section 11 of the Wrongs Act Amendment Act 2015, applies in respect of an injury suffered by a person, and in relation to which a claim for the recovery of damages for non-economic loss applies may be made, irrespective of when the act or omission causing the injury and giving rise to the claim for the recovery of damages occurred.

(2) Without limiting subsection (1), the definition of threshold level in section 28LB, as amended by section 11 of the Wrongs Act Amendment Act 2015, applies in respect of an injury suffered by a person and in relation to which a proceeding for a claim for the recovery of damages for non-economic lost to which this Part applies has been commenced before the commencement of section 11 of that Act but has not been finally settled or determined before the commencement of that section.

83 The transitional provisions state that the new threshold be applied to any proceeding that had commenced prior to the amendment coming into force that had not been finally settled or determined.[43]

84 Ms Were submitted that the new threshold percentage applied, but that it was speculative whether it would be applicable to any reconsideration by the Panel, because it was not known whether the reassessment by the Panel would be at a level of 5 per cent or at another level.

85 Dr Tan submitted that the fact that Ms Were's proceedings had commenced in the County Court before the amendment and had not yet been resolved was irrelevant, because the Medical Panel's assessment was final.

86 Dr Tan submitted that to apply the new threshold provision would punish her for errors of law made by the Panel. It was fair and just that any future assessment by a newly constituted Panel ought to be under the Act that was in force at the time of the original assessment. Section 28LACB of the Wrongs Amendment Act 2015 provided powers to the Court to resolve any transitional difficulties and this was an appropriate case to apply those provisions. Dr Tan also relied on the provisions of s 14(2)(e) of the Interpretation of Legislation Act 1984 which states that the effect of repealing any provision does not, unless the contrary intention expressly appears, 'affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision'.

87 In my opinion, as the question referred by Dr Tan is to be reconsidered by a newly constituted Panel, I should express my opinion on this issue of whether the new threshold applies.

88 The effect of a jurisdictional error is that the purported decision is a nullity as a 'decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all'.[44]

89 The effect of my findings in respect of the two grounds of Dr Tan's application is that the original decision was not made according to law and that Ms Were's proceeding has not been finally settled or determined. The question referred to the Panel must be remitted to a newly constituted Medical Panel for determination. As the original decision is without legal effect, any new decision must be made in accordance with the new threshold.

90 In my opinion, the transitional provisions of the Wrongs Amendment Act 2015 do provide a contrary intention that removes the application of s 14(2)(e) of the Interpretation of Legislation Act.

91 I will make an order in the nature of certiorari quashing the Panel's certificate of determination and remit the question referred to the Panel for rehearing according to law by a newly constituted Panel.

[1] The Certificate of Determination was given pursuant to s 28LZG(2)(a) of the Wrongs Act 1958.

[2] Theodore C Doege (Ed), Guides to the Evaluation of Permanent Impairment (American Medical Association, 4th ed, 1995) ('Guides').

[6] Reasons of Medical Panel re Ms Alison Were, 17 August 2015 ('Reasons'), 3.

[8] The word 'assessed' may have been omitted.

[10] Transport Accident Commission v Serwylo [2010] VSC 421 ('Serwylo').

[14] Ground 2 was in fact contained in paragraph 12 of the Amended Originating Motion.

[15] Transcript of Proceedings, Tan v Gibbons (Supreme Court of Victoria, S CI 2015 05405, Ginnane J, 9 June 2016) ('T'), 4.

[18] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321.

[20] Transport Accident Commission v Serwylo [2010] VSC 421, [8].

[22] [2011] VSC 245 ('Alcoa Holdings').

[24] [2009] VSC 134 ('Gallichio').

[28] In Chapter 3, the Guides instruct that 'if none of the eight categories of the Injury Model is applicable, then the evaluator should use the Range of Motion Model' 94.

[30] Western Health v Gallichio [2009] VSC 134 [13] (Pagone J).

[32] Victorian WorkCover Authority v Elsdon [2013] VSCA 235 [5].

[38] Transport Accident Commission v Serwylo [2010] VSC 421 [32].

[40] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 179; Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531, 572.

[41] I was referred to the ruling in Stapleton v Central Club Hotel [2016] VCC 91 and the decision in Williams v Coles Supermarket Australia Pty Ltd [2016] VSC 161.

[42] Victoria, Parliamentary Debates, Legislative Assembly, 16 September 2015, 3281 (Martin Pakula, Attorney-General).

[43] Wrongs Amendment Act 2015 (Vic) s 28LZS(2).

[44] Saville v Hallmarc Constructions Pty Ltd [2015] VSCA 318, [61] (Warren CJ and Tate JA) applying Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597,616 [53].

Court (General Civil Procedure) Rules 2015

Legislation Act 1984

Wrongs Amendment Act 2015

Compensation Act 1985

Act](/cgi-bin/viewdoc/au/legis/vic/consol_act/wa1958111/) Amendment Act 2015

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