Plaintiff v Defendants

1 On 2 July 2016, the plaintiff's son, Billy Bazouni, gained access to illicit drugs while an inmate at Port Phillip Prison. He subsequently overdosed and died. The plaintiff claims that the first and second defendants failed to take the necessary action to ensure that his son received timely medical attention.[1] The plaintiff claims to have suffered psychiatric injury as a consequence of the circumstances of his son's death.[2]

2 On 11 September 2017, the plaintiff served the first defendant with the prescribed information and a certificate of assessment in accordance with s 28LT of the Wrongs Act 1958 ('Act').[3] The certificate of assessment was completed by Dr David Weissman, consultant psychiatrist, and certified that the degree of impairment resulting from the plaintiff's psychiatric injury (diagnosed as chronic major depressive disorder, unresolved grief reaction and complicated bereavement process and post-traumatic stress and anxiety syndrome associated with traumatisation features) satisfied the threshold level.[4] The first defendant subsequently referred a medical question in relation to the assessment to a medical panel for determination.[5]

3 On 6 October 2017, the plaintiff served the second defendant with the prescribed information and the certificate of assessment completed by Dr Weissman.[6] The second defendant subsequently referred a medical question in relation to the assessment to a medical panel for determination and the two referrals were consolidated.[7]

4 A medical panel comprising the third and fourth defendants was convened to answer their referred medical question ('Panel'). On 8 March 2018, the Panel returned its determination.[8] The question and answer were as follows:

Question: Does the degree of impairment resulting from the psychiatric or psychological injury to the claimant alleged in the claim satisfy the threshold level?

Answer: The Panel determined that the degree of psychiatric impairment resulting from the psychiatric or psychological injury to the claimant alleged in the claim does not satisfy the threshold level.[9]

5 By an originating motion filed on 8 May 2018, the plaintiff seeks an order in the nature of certiorari quashing the opinion of the Panel comprised by the third and fourth defendants. He seeks an order in the nature of mandamus remitting the medical question in respect of which the certified opinion was given to a differently constituted medical panel, to be reconsidered in accordance with law. The plaintiff advances three principal arguments in support of the relief sought. First, the Panel's opinion was legally unreasonable and therefore unlawful. Second, the Panel misconstrued

s 28LL(3). Third, the Panel denied the plaintiff procedural fairness.

6 Section 28LE of the Act precludes the recovery of damages for non-economic loss in respect of an injury to a person caused by the fault of another person, unless the person injured 'has suffered significant injury.' The term 'significant injury' is defined in s 28LF of the Act. A psychiatric injury is a significant injury if the degree of impairment resulting from the injury satisfies the threshold level. Pursuant to s 28LB, the threshold level for a psychiatric injury is a permanent impairment of 10 per cent or more. Pursuant to s 28LI, an assessment of the degree of impairment under Part VBA of the Act must be made in accordance with The Guide to the Evaluation of Psychiatric Impairment for Clinicians ('GEPIC'). Section 28LL(3) provides that impairments from unrelated injuries or causes are to be disregarded in making an assessment.

7 The Panel concluded that the plaintiff developed a chronic adjustment disorder with depressed and anxious mood, in part relevant to the issues surrounding his son's death and in part to unrelated factors.[10] The basis of the Panel's conclusion that the plaintiff had not suffered a significant injury is as follows:

The Panel considered that there is evidence of unrelated impairment to be disregarded. The Panel noted mention of past alcoholism and violence on his part. The Panel noted a difficult childhood and leaving school after Grade 3 level. The Panel noted significantly his loss of his right upper limb in a bombing whilst in Lebanon for which the claimant surprisingly stated he had neither psychological sequelae nor ongoing distress. The Panel also noted the claimant's eldest son is currently incarcerated in prison and he has little to no contact with his other daughter. The Panel is of the opinion that there is evidence of unrelated issues which the Panel is obligated to apportion.

...

After disregarding the level of psychiatric impairment attributable to an unrelated injury or cause that is playing a part in the claimant's current psychiatric impairment in accordance with Section 28LL(3) of the Act, the Panel determined that the degree of psychiatric impairment resulting from the psychiatric injury to the claimant alleged in the claim is permanent, is not 10% or more, and does not satisfy the threshold level as prescribed by Section 28LB of the Act as amended.[11]

Legal unreasonableness/misapplication of s 28LL(3)

8 The plaintiff submits that the reasons of the Panel are legally unreasonable.[12] He submits that the decision lacks an evident or intelligible justification.[13] He further submits that, in concluding that the plaintiff's impairment does not satisfy the significant injury threshold for psychiatric impairment, the Panel misconstrued s 28LL(3).

9 The Panel's determination that the plaintiff did not satisfy the significant injury threshold was made pursuant to s 28LZG. Section 28LZG(1) stipulates that a medical panel must not determine the degree of impairment of a person unless it has made an assessment of the degree of impairment in accordance with Division 3 of the Act. In a claim based on psychiatric impairment, the assessment must be made in accordance with ss 28LI and 28LL. Section 28LI requires an assessment of psychiatric impairment to be in accordance with the GEPIC. Section 28LL(3) requires impairments from unrelated injuries or causes to be disregarded in making an assessment.

10 The Panel's decision that the plaintiff did not satisfy the significant injury threshold was made in the exercise of statutory power. It is an implied condition of the statutory conferral of power that the power must be exercised 'within the bounds of reasonableness'.[14] A legally unreasonable decision is beyond statutory authority and unlawful.[15] In Minister for Immigration and Border Protection v SZVFW, Nettle and Gordon JJ stated:

The question with which the legal standard of reasonableness is concerned is whether, in relation to the particular decision in issue, the statutory power, properly construed, has been abused by the decision-maker or, put in different terms, the decision is beyond power.[16]

11 A decision will be unlawful by reason of legal unreasonableness if there is no evident and intelligible justification for the decision.[17] Legal unreasonableness requires a careful evaluation of the evidence. Where reasons are provided, they will be a focal point for the assessment of whether a decision was beyond power because it was legally unreasonable.[18] The content of an implication of reasonableness is to be assessed in light of the terms, scope, purpose and object of the statute.[19]

Is there an evident or intelligible justification for the Panel's decision?

12 The Panel provided reasons for its conclusion that the plaintiff does not satisfy the threshold level for psychiatric injury prescribed by s 28LB of the Act. Those reasons are the focal point for the assessment of whether that conclusion is legally unreasonable; in particular, whether the reasons disclose an evident and intelligible justification for the Panel's conclusion.

13 Section 28LE of the Act limits the entitlement of a plaintiff to recover damages for non-economic loss unless the claimant has suffered a significant injury. Where a claimant seeks to recover damages in respect of psychiatric injury, the significant injury threshold is permanent impairment of 10 per cent or more.[20] Impairments from injuries or causes unrelated to psychiatric injury in respect of which damages are claimed are to be disregarded in the assessment of whether a claimant satisfies a significant injury threshold.[21]

14 Whether a claimant satisfies the significant injury threshold for psychiatric injury turns upon the assessment of impairment related to the psychiatric injury. Impairments from injuries or causes which are not related to the psychiatric injury are to be disregarded. There is a distinction between an unrelated impairment (which must be disregarded) and an unrelated issue. If there is no evidence establishing impairment caused by an unrelated issue, there is nothing to disregard.[22]

15 In City of Melbourne v Neppessen,[23] Niall JA considered the correct approach to be adopted by a Panel in disregarding unrelated impairment:

It was not controversial and follows from s 28LL(3) that, in making an impairment assessment, any impairment from an unrelated injury or cause must be disregarded so as to ensure that the impairment assessment relates solely to that resulting from the claimed injury. It would be inconsistent with that obligation for a medical panel to assess the impairment of an injured limb at large without adverting to the potential for impairment to be caused by different injuries or causes. The medical panel is obliged to identify any impairment arising from an unrelated injury or cause, whether pre-existing or subsequent, and ensure that its estimate of impairment disregards any other impairment.

In identifying the unrelated impairment, and in estimating its extent, the panel is not required to apply the Guides. It is obliged to evaluate the unrelated impairment on the material presented to it and do its best to evaluate the extent to which that impairment is playing a part in the person's current impairment. The process of attribution does not require the panel to speculate, but requires it to disregard any impairment, either pre-existing or post-dating the injury, which is established by evidence to have resulted from a cause other than the relevant injury.[24]

16 In Alcoa Holdings Limited v Lowthian,[25] J Forrest J stated:

In engaging in its statutory task the Panel must do the best it can to evaluate the extent to which impairment from the unrelated injury or cause is playing a part in the worker's current impairment. If the evidence enables it to determine the extent of the present impairment and that of the pre-existing impairment, then it must make allowance for the pre-existing impairment.[26]

17 The Panel stated that it had disregarded 'the level of psychiatric impairment attributable to an unrelated injury or cause that is playing a part in the claimant's current psychiatric impairment in accordance with Section 28LL(3) of the Act'.[27] However, the Panel's reasons for determination do not disclose any evaluation of the nature of any impairment established by evidence to be attributable to any unrelated injury or cause. As such, the approach adopted by the Panel did not conform with the requirement for evidence-based evaluation of unrelated impairment.

18 The key passage in the Panel's reasons in respect of unrelated impairment is as follows:

The Panel considered that there is evidence of unrelated impairment to be disregarded. The Panel noted mention of past alcoholism and violence on his part. The Panel noted a difficult childhood and leaving school after Grade 3 level. The Panel noted significantly his loss of his right upper limb in a bombing whilst in Lebanon for which the claimant surprisingly stated he had neither psychological sequelae nor ongoing distress. The Panel also noted the claimant's eldest son is currently incarcerated in prison and he has little to no contact with his other daughter. The Panel is of the opinion that there is evidence of unrelated issues which the Panel is obligated to apportion.[28]

19 Mr Harper, who appeared for the first and second defendants, accepted that the Panel's reasoning set out above is 'jumbled and poorly worded.'[29] Nevertheless, he submitted that the Panel had conducted the assessment of the plaintiff's psychiatric impairment in accordance with s 28LL(3). Mr Brett QC, who appeared with Ms Spencer for the plaintiff, submitted that the final sentence of the passage set out above supported a conclusion that the Panel members misdirected themselves. In particular, Mr Brett submitted that the Panel erred by disregarding 'unrelated issues' (such as past alcoholism, violence and a difficult childhood) in the absence of any evidence or finding that the plaintiff suffered from any unrelated impairment referable to such issues. I accept this submission.

20 Section 28LL(3) required the Panel to disregard psychiatric impairment unrelated to the plaintiff's claimed psychiatric injury. However, absent a finding of unrelated impairment, the Panel was not required to disregard 'unrelated issues' such as the plaintiff's difficult childhood, limited education, and a history of alcoholism and domestic violence. These issues comprise part of the plaintiff's life experience at the time he sustained the alleged psychiatric injury. Absent a finding, based on evidence, that these issues caused permanent psychiatric impairment, there is nothing to disregard. The Panel's statement that it was 'obligated to apportion' the unrelated issues is the result of the Panel misconstruing s 28LL(3). It thereby fell into jurisdictional error.[30]

21 The conclusion that the panel misconstrued s 28LL(3) is reinforced by the Panel's finding that it was obligated to apportion 'unrelated issues'. The phrase 'unrelated issues' does not appear in s 28LL(3). Rather, the statutory imperative in s 28LL(3) is to disregard 'impairment from the unrelated injury or cause'.[31]

22 The Panel's reasons record no finding of an unrelated injury. Nor do they record a finding of impairment from an unrelated 'cause'. Such a finding would require evidence-based identification of permanent impairment and its unrelated cause. Matters such as a difficult childhood and leaving school after grade three fit consistently within that description of 'unrelated issues'. However, nothing in the Panel's reasons support a finding that these issues were a cause of permanent psychiatric impairment.

23 Assessment of pre-existing impairment must be evidence-based.[32] The Panel's reasons refer to 'evidence of unrelated impairment' but fail to identify any such evidence.[33] The Panel 'noted':[34]

• the plaintiff's past alcoholism and violence on his part;
• the plaintiff's difficult childhood and absence of schooling after grade three level;
• the plaintiff's loss of his right upper limb in a bombing whilst in Lebanon for which the plaintiff surprisingly stated he had neither psychological sequelae nor ongoing distress; and
• that the plaintiff's eldest son is currently incarcerated in prison and that he has little to no contact with his other daughter.[35]

24 None of these matters constitute evidence of unrelated psychiatric impairment. Unrelated impairment for the purposes of s 28LL(3) means permanent impairment.[36] The fact that the plaintiff may have had a difficult childhood and left school after grade three does not constitute evidence of permanent psychiatric impairment. So too, 'mention' of past alcoholism and violence does not constitute evidence of permanent impairment. In Hatswell v Victoria,[37] Kyrou J (as his Honour then was) stated:

I accept the State defendants' submission that the Medical Panel was entitled to rely on its own expertise, including its observations of the plaintiff, in making its Determination. I also accept that, as the Medical Panel was not bound by the rules of evidence, it was entitled to rely on any information it considered relevant even though that information may infringe an exclusionary rule of evidence or might not otherwise be admitted into evidence in a conventional civil or criminal trial. However, the Medical Panel is a statutory body performing an important function that can significantly affect people's lives and it is obliged to comply with the rules of natural justice. As such, there must be a relevant relationship between a finding and the information upon which the Medical Panel relies to make that finding. The Medical Panel cannot engage in speculative reasoning or make findings for which there is no factual foundation.[38]

25 I do not consider there to be any 'relevant relationship' between the unrelated issues identified by the Panel and its conclusion that the plaintiff had psychiatric impairment attributable to an unrelated cause. The Panel did not undertake any evaluation of what, if any, permanent impairment flowed from the unrelated issues to which it referred. Without first ascertaining the permanent psychiatric impairment caused by the unrelated issues it identified, there was no foundation for the Panel's conclusion that there was evidence of unrelated impairment to be disregarded.

26 There is no evident or intelligible justification for the Panel's conclusion:

After disregarding the level of psychiatric impairment attributable to an unrelated injury or cause that is playing a part in the claimant's current psychiatric impairment in accordance with Section 28LL(3) of the Act, the Panel determined that the degree of psychiatric impairment resulting from the psychiatric injury to the claimant alleged in the claim is permanent, is not 10% or more, and does not satisfy the threshold level as prescribed by Section 28LB of the Act as amended.[39]

27 The Panel's reasons for determination were legally unreasonable and therefore unlawful. The reasons lack any evident and intelligible justification. Further, the Panel misconstrued s 28LL(3). This conclusion renders it unnecessary to address the plaintiff's submission that he was denied procedural fairness by reason of the Panel's failure to provide him with an opportunity to respond to the Panel's reliance upon 'mention of past alcoholism and violence on his part.'[40] Nevertheless, for the sake of completeness, I shall do so.

28 The material provided to the Panel included the reasons for sentence of Billy Bazouni of Judge Howard dated 8 December 2014.[41] Under the heading 'Background and personal circumstances', his Honour stated, '[y]our father was a violent alcoholic who physically abused you.'[42]

29 The referral to the Convenor of Medical Panels Victoria from the second defendant's solicitors dated 4 December 2017 included the following:

The Respondent notes the history of the Claimant does not address the nature of his relationship with the Deceased's mother, Hanh Tran. Ms Tran has provided instructions that her marriage to the Claimant was affected by domestic violence. We are mindful of the sensitive nature and potential risk factors arising from this allegation, which is not apparent from the history taken by Dr Weissman. We request that the Panel approach this line of enquiry with the Claimant judiciously. Ms Tran is herself represented by the same legal advisors as Mr Bazouni and they are aware that this issue was to be raised in this referral.[43]

30 Judge Howard's sentencing reasons do not expressly refer to any violence by the plaintiff towards his wife. There is express reference to the plaintiff being a violent alcoholic who physically abused his son.[44] The Panel was requested by the second defendant's solicitors to 'judiciously' approach the line of enquiry relating to domestic violence.[45] In fact, the plaintiff's evidence, unchallenged by the first and second defendants, was that neither the allegation of the plaintiff's domestic violence towards his wife or his son nor his alcoholism were raised with him by the Panel.[46]

31 The Panel's reasons noted mention of the plaintiff's 'past alcoholism and violence'.[47] In the Panel's reasons, the reference to past alcoholism and violence follows on immediately from the statement, '[t]he Panel considered that there is evidence of unrelated impairment to be disregarded'.[48] Thus, the Panel appears to have concluded that the plaintiff's past alcoholism and violence evidenced permanent pre-existing impairment which it was obliged to disregard. For the reasons outlined earlier in this judgment, this approach demonstrated error on the part of the Panel. Nevertheless, it is clear that the Panel relied upon a finding of past alcoholism and violence on the part of the plaintiff in a manner which adversely affected his interests. In doing so, the Panel denied the plaintiff procedural fairness. The Panel's reliance upon a finding of past alcoholism and violence could not reasonably have been anticipated by the plaintiff. It is correct, as submitted by Mr Harper, that the material forwarded to the Panel included Judge Howard's reasons for sentence.[49] However, the issue of the plaintiff's past alcoholism and violence was not raised with him when he was examined by the Panel. As the issue was not raised, it could not reasonably have been anticipated by the plaintiff that it would form part of the Panel's process of reasoning.[50]

32 Further, the plaintiff was denied a fair opportunity to be heard on the issue of his alleged past alcoholism and violence.[51] When he was examined by Dr Weissman on 21 June 2017, the plaintiff stated that '[h]e drinks an occasional glass of wine'.[52] Dr Weissman's report was provided to the Panel. Insofar as that report included the plaintiff's statement that he only drinks an occasional glass of wine, its contents are directly inconsistent with the allegation that the plaintiff is an alcoholic. The plaintiff should have been given an opportunity to address the allegation of past alcoholism.

33 The plaintiff has established that he was denied procedural fairness by not being afforded an opportunity to respond to the allegation of past alcoholism and physical violence.

34 The plaintiff is entitled to an order in the nature of certiorari quashing the opinion of the Panel comprised by the third and fourth defendants certified in writing dated 8 March 2018. The plaintiff is also entitled to an order in the nature of mandamus remitting the medical question in respect of which the certified opinion was given to a differently constituted medical panel to be reconsidered in accordance with law. I shall provide the parties with an opportunity to make submissions on the question of costs.

[1] Affidavit of Nicholas Korliniewski sworn 7 May 2018, [2].

[8] Ibid [6]; Exhibit NK-1 to the affidavit of Nicholas Korliniewski sworn 7 May 2018.

[10] Ibid, 'Reasons for Determination', 8.

[12] Plaintiff, 'Outline of Submissions', 11 September 2018, [3].

[14] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 92 ALJR 713, 728 [53] (Gageler J), see also 734 [89] (Nettle and Gordon JJ) ('SZVFW').

[15] Ibid 728-9 [55] (Gageler J), 738 [131] (Edelman J).

[16] Ibid 732 [80] (emphasis in original) (citations omitted).

[17] Ibid 733 [82] (Nettle and Gordon JJ); Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332, 367 [76] (Hayne, Keifel and Bell JJ), 375 [105] (Gageler J).

[18] SZVFW [2018] HCA 30; (2018) 92 ALJR 713, 733 [84] (Nettle and Gordon JJ).

[19] Ibid 739-40 [134]-[135] (Edelman J), 729 [59] (Gageler J) and 734 [88] (Nettle and Gordon JJ).

[20] Wrongs Act 1958 (Vic) s 28LB (definitions of 'impairment' and 'threshold level').

[21] Ibid s 28LL(3).

[22] Chua v Lowthian [2011] VSC 468, [161] (Osborn J) ('Chua').

[23] [2019] VSC 84.

[24] Ibid [122]-[123] (citations omitted).

[25] [2011] VSC 245.

[27] Exhibit NK-1 to the affidavit of Nicholas Korliniewski sworn 7 May 2018, 'Reasons for Determination', 9.

[29] Transcript of proceeding (21 May 2019), 42.15.

[30] Alcoa Holdings Limited v Lowthian [2011] VSC 245, [78] (J Forrest J).

[31] Lingenberg v Gallichio [2013] VSCA 143; (2013) 40 VR 60, 68 [29] (Nettle and Neave JJA).

[32] Chua [2011] VSC 468, [135] (Osborn J).

[33] Exhibit NK-1 to the affidavit of Nicholas Korliniewski sworn 7 May 2018, 'Reasons for Determination', 9.

[36] Wrongs Act 1958 (Vic) s 28LB (definition of 'impairment').

[37] [2013] VSC 262.

[39] Exhibit NK-1 to the affidavit of Nicholas Korliniewski sworn 7 May 2018, 'Reasons for Determination', 9.

[41] DPP (Vic) v Bazouni [2014] VCC 2093 ('Bazouni').

[43] Exhibit NK-2 to the affidavit of Nicholas Korliniewski sworn 7 May 2018, second defendant's solicitors, letter of referral to Medical Panel, 4 December 2017, [2.3].

[44] Bazouni [2014] VCC 2093, [11].

[45] Exhibit NK-2 to the affidavit of Nicholas Korliniewski sworn 7 May 2018, second defendant's solicitors, letter of referral to Medical Panel, 4 December 2017, [2.3].

[46] Affidavit of Youssef Bazouni sworn 12 September 2018, [3].

[47] Exhibit NK-1 to the affidavit of Nicholas Korliniewski sworn 7 May 2018, 'Reasons for Determination', 9.

[49] Transcript of proceeding (21 May 2019), 61.06-61.12.

[50] North v Homolka [2014] VSC 478, [103]-[104] (Ashley JA).

[51] Barrett Burston Malting Co Pty Ltd v Kotzman [2013] VSC 248, [34] (Cavanough J).

[52] Exhibit NK-2 to the affidavit of Nicholas Korliniewski sworn 7 May 2018, Dr David Weissman, GEPIC impairment assessment and report, 21 June 2017, 18.