Plaintiff v Defendants

2 Mr Damjanoski wishes to sue Mr Johnston in negligence for non-economic loss in respect of his alleged injuries. To do so, he must comply with the requirements of Part VBA of the Wrongs Act 1958 ('the Act').[3] He has made a formal claim under those provisions.

3 On 23 May 2018 a Medical Panel determined, under Division 5 of Part VBA, that the degree of impairment resulting from the psychiatric or psychological injury to Mr Damjanoski alleged in his claim satisfied the threshold level specified in Part VBA, that is to say, an impairment of 10 per cent or more. The Medical Panel provided a written statement of reasons for its determination.

4 Mr Johnston now challenges the Medical Panel's determination. He does so by way of application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. Mr Johnston says that the Medical Panel erred in law or made a jurisdictional error. He points to the requirement in s 28LJ of the Act that, in assessing a degree of impairment of a person under Part VBA, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.

5 Mr Johnston acknowledges that the Medical Panel was aware of, and purported to comply with, s 28LJ. Indeed, Mr Johnston points to what he calls the Medical Panel's 'conclusion' that there was no part of Mr Damjanoski's psychiatric impairment which had arisen secondary to a physical injury and which should therefore be disregarded in accordance with s 28LJ.[4] Mr Johnston says that this 'conclusion' depended upon a finding by the Panel that 'the claimant... did not attend his GP for ongoing treatment of any persisting physical injuries related to the incident.'[5] Mr Johnston says, in turn, that this was a finding that lacked a factual foundation and was not open on the evidence before the Medical Panel.[6] In the same vein, Mr Johnston says that the Medical Panel erred by failing to take into account what he describes as a 'mandatory consideration', namely what he describes as the evidence before the Panel that Mr Damjanoski had received ongoing treatment for persisting physical injuries related to the incident.[7]

6 It is true that the reasons of the Medical Panel contain the following paragraph:

Given that the claimant was cleared of any physical injuries on two occasions following the incident at the Frankston Hospital, and he did not attend his GP for ongoing treatment of any persisting physical injuries related to the incident, the Panel concluded that there is no part of the claimant's psychiatric impairment which has arisen secondary to a physical injury and which should be disregarded in accordance with Section 28LJ of the Act.

7 It may be accurate to describe this paragraph as containing a conclusion, but it was not, of course, the ultimate conclusion of the Medical Panel. That ultimate conclusion was expressed in the answer given by the Panel to the referred medical question, to the effect that the degree of psychiatric impairment resulting from the psychiatric or psychological injury to the claimant alleged in the claim did satisfy the threshold level.

8 On the other hand, it may be accepted that, if the Medical Panel misunderstood or misapplied s 28LJ, and if this might have affected the ultimate outcome of the referral of the medical question, then the certificate of the Medical Panel would be liable to be set aside. By contrast, a mere inconsequential slip in fact finding would not justify the intervention of this Court.

9 It is true that the evidence indicates that Mr Damjanoski complained to his treating medical practitioners from time to time between the date of the incident and February 2018 about neck pain and pain in his lumbar spine, and it is also true that, in his claim and otherwise, Mr Damjanoski has attributed this pain to the effects of the incident. On the other hand, it has rightly been pointed out on behalf of Mr Damjanoski that his complaints of pain diminished considerably after mid-2016.[8] The history taken by the Medical Panel itself does not include any complaints of pain by Mr Damjanoski in the course of his examination by the Medical Panel. Further, whatever complaints Mr Damjanoski may have made to his treating medical practitioners, there seems to have been little or no treatment actually undertaken for any problems in his neck or back since mid-2016.[9]

10 On all of the material before the Court, I do not accept the plaintiff's assertion that the Medical Panel's finding (namely, that Mr Damjanoski did not attend his GP for ongoing treatment of any persisting physical injuries relating to the accident) lacked a factual foundation and was not open on the evidence.[10] Further, I do not interpret the Medical Panel's finding in the extreme way that Mr Fleming urges me to interpret it today (namely, as a finding that Mr Damjanoski did not attend his GP after the date of the incident for treatment of physical injuries related to the incident at all).[11]

11 Likewise, I do not accept, on the facts, that the Medical Panel failed to take into account the evidence that was before it insofar as that evidence may have suggested that Mr Damjanoski had received ongoing treatment for persisting physical injuries related to the incident. I do not accept that I should not proceed on the basis that the medical panel did as it said it did, namely, that it took into account all of the documents and information referred to in enclosures A and B to the statement of reasons of the Medical Panel.[12] The assessment of the Medical Panel in relation to that evidence was open to it.

12 In any event, I do not accept the plaintiff's contention that the evidence in question amounted to a mandatory consideration for the Medical Panel. Rather, it was merely part of the evidentiary material before the Panel.[13] If the evidence could not have made a difference to the proper outcome of the referral, it was not mandatory for the Panel to take it into account.[14]

13 As counsel for Mr Damjanoski point out, the Medical Panel diagnosed Mr Damjanoski with Post-Traumatic Stress Disorder consequent upon the boating accident. Moreover, the Panel expressly found that Mr Damjanoski's only psychiatric condition was Post-Traumatic Stress Disorder. The Panel explicitly disagreed with Associate Professor Paoletti's report of 20 April 2017 to the extent that Associate Professor Paoletti found that Mr Damjanoski was also suffering from depressive disorder.[15]

14 The Panel said in terms that it 'did not find any evidence of any secondary impairment arising from the accident.'

15 In other words, the Medical Panel found that the entirety of Mr Damjanoski's psychiatric injury was a primary injury, namely Post-Traumatic Stress Disorder. That condition, by definition, is a condition that relates directly to the incident in question and does not arise in a secondary or indirect fashion from injury suffered in the incident in question.[16] Hence, it matters not whether the Medical Panel may have mistaken the evidence relating to the extent to which Mr Damjanoski complained of pain or sought treatment or obtained treatment in relation to his neck or his back.

16 Accordingly, the application for judicial review will be dismissed.

[1] As indicated below, this proceeding is an application for judicial review in respect of processes undertaken pursuant to Part VBA of the Wrongs Act 1958. Hence there was no occasion for the plaintiff to make any challenge to the claims made by the first defendant about the underlying alleged events referred to in this paragraph, and there is no occasion for any findings of fact to be made by this Court as to those underlying alleged events.

[3] See, generally, Mitchell v Malios [2013] VSC 480 (Beach J); Colquhoun & Ors v Capitol Radiology Pty Ltd & Ors [2013] VSCA 58; Hatswell v Victoria [2013] VSC 262 (Kyrou J).

[4] Plaintiff's written outline of submissions dated 23 November 2018, [4].

[8] See written submissions on behalf of the first defendant dated 18 January 2019 at [38]-[47], esp at [44].

[10] As to the strictness of the 'no evidence' grounds of judicial review, see e.g. the judgment of Ashley JA (in a medical panel case) in North v Homolka [2014] VSC 478 [63]. See also Moore v Barton [2014] VSC 78 (John Dixon J) [65]-[66] and cases there cited.

[11] For the proper approach to the reading of decisions of administrative tribunals and bodies, see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322; (2012) 38 VR 45, 48-51 [8]-[20], esp at [9], [20].

[12] See and compare Maribyrnong City Council & Anor v Malios & Ors [2014] VSC 452 [47]-[48]; my judgment in Vellios Electrical Contractors Pty Ltd v Barton & Ors [2014] VSC 664 [80]-[83]; Donevski v Hunter [2019] VSC 163 (Richards J) [14].

[13] See and compare my judgment in Vellios Electrical Contractors Pty Ltd & Anor v Barton & Ors [2014] VSC 664 [78]-[79].

[14] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at 9 [29]- [31] (Kiefel CJ, Gageler and Keane JJ), 11 [40]-[42] (Nettle J), 17 [65] and 19 [72] (Edelman J).

[15] See written submissions on behalf of the first defendant dated 18 January 2019, [22]-[32].

[16] Counsel for Mr Johnston acknowledged this several times during argument today: see transcript 22 (line 27), 24 (line 24), 25 (lines 2 to 18), 29 (lines 21 to 26).