Plaintiff v Defendants

Introduction and overview: a Medical Panel assesses the wrong injury and misdirects itself in law

1 The plaintiff, Mr Keith Ingle, applies for judicial review of a determination relating to him made by a Medical Panel in October 2019. The determination purports to have been made under Part VBA of the Wrongs Act 1958 (Vic) ('Wrongs Act'). Part VBA imposes a limitation on the ability of a person to bring a common law claim for damages for non-economic loss in relation to an injury to the person 'caused by the fault of another person'.[1] In short, the injury or injuries must amount to 'significant injury' as defined in the Wrongs Act.[2] In relation to most kinds of physical injury, the Wrongs Act requires that, in contested cases, there be an assessment of the degree of permanent impairment of the 'whole person' resulting from the injury.[3] Generally speaking, assessments of permanent impairment in respect of physical injuries must be carried out in accordance with a certain American publication commonly referred to as 'the A.M.A. Guides';[4] and the assessed degree of impairment must satisfy the relevant 'threshold level' specified in the Wrongs Act.[5] More details about the relevant provisions of Part VBA of the Wrongs Act are set out in several previous decisions of this Court.[6]

2 Mr Ingle had total knee replacements for both his left leg and his right leg in early 2013. The knee replacements were very successful. Both knees had good function and were pain free. About four years and nine months later, on 27 November 2017, Mr Ingle slipped and fell on a patch of water at the first defendant's airport at Tullamarine. His (replaced) left knee was damaged permanently. It was rendered painful, with substantially diminished function. Mr Ingle wished to sue the first defendant for negligence as an occupier. For that purpose, he came to need a determination by the Medical Panel to the effect that the injuries he suffered in the slip and fall amounted to 'significant injury'.

3 However, the formal determination issued by the Panel was to the effect that the degree of impairment from the injuries to Mr Ingle alleged in his claim did not satisfy the threshold level. Indeed, in a statement of reasons accompanying the determination, the Panel said that there was 'no additional impairment' resulting from those injuries when assessed in accordance with the A.M.A. Guides.

4 In my opinion, this rather surprising decision of the Panel was affected by judicially reviewable error.

5 The Panel did not properly identify and isolate the relevant alleged injuries, which were mainly in the nature of aggravation injuries. Instead, the Panel treated the current condition of Mr Ingle's left knee as the injury impairment from which was required to be assessed and estimated, while at the same time taking the view that impairment associated with the pre-accident state of Mr Ingle's left knee should be assessed and estimated and 'disregarded'. Further, the Panel treated the latter estimate as cancelling out the former estimate or, at least, as reducing the former estimate to a level below the threshold level.

6 In taking this approach, the Medical Panel did not answer the question that had been referred to it. It did not assess the relevant alleged injuries. This was a failure to perform the Medical Panel's statutory function and amounted to jurisdictional error.[7]

7 Had the Panel not assessed the wrong injuries, its determination might have been different. It might have applied different provisions of the A.M.A. Guides and the outcome might have been favourable to Mr Ingle. Hence the Panel's jurisdictional error was a material one, warranting the intervention of the Court.

8 Further, the particular provisions of the A.M.A. Guides that the Panel did purport to apply were simply inapplicable to the relevant alleged injuries. This was at least an error of law on the face of the record, and may also have amounted to jurisdictional error. It, too, was a material error, for similar reasons.

9 The approach adopted by the Medical Panel was not saved by s 28LL(3) of the Wrongs Act, to which the Panel referred. That provision requires an assessor to disregard impairments from 'unrelated injuries or causes'. However, s 28LL(3) does not authorise a Panel to disregard the relevant claimed injuries themselves. Quite the opposite.[8] But, in effect, that is what the Panel did.

10 Further, the Panel made at least one fundamental mistake of fact in arriving at its decision. It was a mistake relating to the extent to which the range of movement of Mr Ingle's left knee had been limited prior to the incident in question. It was a mistake of a kind that gave rise to material jurisdictional error.[9]

11 In these circumstances, I agree with Mr Ingle that the Medical Panel acted in a manner that involved jurisdictional error and error of law on the face of the record in several respects, and that in consequence its determination falls to be quashed by an order in the nature of certiorari.[10]

12 As indicated above, the plaintiff is Mr Keith Ingle. He wishes to commence a common law proceeding against the first defendant for damages for negligence as an occupier in relation to the injuries he claims to have suffered in the alleged fall of 27 November 2017. He wishes to include a claim for damages for non-economic loss. In the language of Part VBA, Mr Ingle is 'a claimant'.

13 The first defendant in the present proceeding is Australia Pacific Airports (Melbourne) Pty Ltd, which was the occupier of Tullamarine Airport at the time of the alleged slip and fall. It would be the defendant to Mr Ingle's proposed common law case. In the language of Part VBA, it is 'the respondent'.

14 The second and third defendants to the present proceeding are the two members of the Medical Panel.

Mr Ingle's claim under Part VBA of the Wrongs Act

15 Section 28LT of the Wrongs Act provides that a claimant must serve on the respondent a copy of a certificate of assessment given by an approved medical practitioner together with a document in prescribed form containing certain prescribed information including information relating to the alleged injury and the incident out of which the alleged injury arose.[11]

16 On 12 March 2019, an approved medical practitioner, namely Mr Douglas Gardiner, orthopaedic surgeon, completed a certificate of assessment in relation to Mr Ingle, and supplied a supporting medical report of the same date. In the certificate, the following 'Brief description of injury assessed' was given:

2. Significant reduction in range of movement of a previously well-functioning left knee replacement.

17 In the supporting medical report, Mr Gardiner set out relevant background and the history and progress of Mr Ingle's injury. Mr Gardiner reported on the current complaints and on a physical evaluation. He gave a description of the investigations undertaken, a list of supplied medical and radiological reports and a diagnosis. He included a section entitled 'Analysis, Discussion and Conclusion'. He gave answers to nine questions raised by Mr Ingle's solicitors. Finally, Mr Gardiner set out the results of an impairment assessment stated to have been done by him in accordance with the abovementioned A.M.A. Guides. That publication includes various instructions, figures and tables for the numerical assessment of permanent impairment of particular body parts or functions and for numerical assessment of what it calls 'whole person impairment'.

18 In Mr Gardiner's medical report, the diagnosis was stated more broadly than in the 'Brief description of injury assessed' set out in his formal certificate of assessment. The diagnosis in the report covered injuries to the area of Mr Ingle's left knee and also injuries to his right elbow. It was stated as follows:

1. Soft tissue injury surrounding an [sic] previously well-functioning left knee replacement;

2. Patellofemoral crepitus and irritability suggestive of an impact injury to the patellofemoral joint in a knee replacement without fracture;

3. Impact injury to the right elbow causing bony hypertrophy of the olecranon and right olecranon bursitis.

19 In the report, Mr Gardiner concluded, in effect, that the right elbow injury had largely resolved and that it made no contribution to any permanent impairment assessment. However, in relation to the two diagnoses of injury to the area of Mr Ingle's left knee, Mr Gardiner arrived at a combined 'whole person impairment' assessment under the A.M.A. Guides, for the orthopaedic component, of 16%. He set out a supporting table as follows:

Left knee with fixed flexion deformity of 20°+ which renders the condition severe.

20 On or about 23 May 2019, Mr Ingle served on the first defendant, as the respondent, a copy of the certificate of assessment dated 12 March 2019 completed by Mr Gardiner together with Mr Gardiner's medical report of the same date, as well as a completed 'claimant prescribed information form'. In the relevant part of the 'claimant prescribed information form', which was prepared by Mr Ingle's solicitors, the leg injuries were described in very abbreviated and general terms, as follows: 'left knee' and 'left lower limb'. Mr Gardiner's certificate stated that the degree of impairment resulting from Mr Ingle's alleged injuries satisfied the 'threshold level'. For the types of injuries alleged in Mr Ingle's claim, the 'threshold level' is defined in the Wrongs Act as 'impairment of more than 5 per cent'. Subject to Part VBA as a whole and to Division 3 of that Part in particular, that definition means, in effect, impairment of more than 5 per cent of the 'whole person', assessed in accordance with the A.M.A. Guides. Had the respondent accepted Mr Gardiner's assessment, the restriction imposed by Part VBA of the Wrongs Act on the recovery of damages for non-economic loss would have been overcome in Mr Ingle's case. However, the respondent did not accept it.

21 Section 28LWE enables a respondent on whom a copy of a certificate of assessment is served to refer a medical question in relation to the assessment to a Medical Panel. Section 28LB contains a definition of 'medical question' as follows:

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.

22 On 31 May 2019, the first defendant, by its solicitors, referred a medical question in the statutory form to a Medical Panel pursuant to s 28LWE of the Wrongs Act. In accordance with s 28LZA of the Wrongs Act, the first defendant provided the Medical Panel with certain relevant documents, including copies of Mr Gardiner's certificate of assessment and supporting medical report.

23 On 17 October 2019, the Medical Panel returned its determination. The question and answer were as follows:

Question: does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?

Answer: the Panel determined that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim does not satisfy the threshold level.

24 On the same day, 17 October 2019, the Medical Panel issued written reasons for its determination. Neither the Wrongs Act nor the common law imposed any obligation on the Medical Panel to give reasons.[12] However, as from a time prior to 2013, there has apparently been in place, in one form or another, a direction by the Convenor of Medical Panels to the effect that Medical Panels assembled under the Wrongs Act are to issue statements of reasons with their determinations. A decision of the Court of Appeal in 2013 established that a direction by the Convenor to that effect that was then in place was beyond power and not legally binding,[13] but the practice of issuing written statements of reasons in connection with formal determinations has continued. There is nothing to indicate that Mr Ingle made a request to the Medical Panel for a statement of reasons under s 8 of the Administrative Law Act 1978 (Vic). So it seems that the statement of reasons issued by the Medical Panel in this case was, in point of law, issued voluntarily. Accordingly, it could not be asserted (and indeed Mr Ingle did not assert) that the statement of reasons was legally required to disclose the whole of the reasoning process of the Medical Panel, or that its determination could be attacked on the ground that the statement of reasons was inadequate.[14] Additionally, just as other Medical Panels assembled under Part VBA of the Wrongs Act have done in other cases, this Medical Panel said, towards the end of its statement of reasons, that it regarded itself as precluded by s 28LZG(4) of the Wrongs Act from providing 'any further explanation or detailed reasons of the basis of which it [had] calculated impairment' beyond what it had provided.[15] Arguably, the Medical Panel had in truth more freedom than it considered itself to have in this respect.[16] However, even if it did, that in itself would not be a ground for impugning its determination, since, in the absence of a request under s 8 of the Administrative Law Act 1978, it had no legal obligation to give reasons at all.[17] Indeed, the statement of reasons needs to be read and understood as having been prepared both voluntarily and on the basis of a belief (whether well-founded or not) that more detailed reasons explaining the basis on which the Medical Panel had calculated impairment could not be provided. Such an approach taken by a Medical Panel tends to make it more difficult to discern whether or not the Medical Panel has reasoned lawfully or rationally. In the present case, however, sufficient appears from the Medical Panel's statement of reasons to satisfy me that its reasoning did involve jurisdictional error and error of law on the face of the record, as indicated above and as I will further explain.

25 Omitting the formal parts, the Medical Panel's statement of reasons in this case was as follows:

The Panel noted from the referral that Mr Ingle alleges he sustained injury on 27 November 2017 when he slipped walking over water on the floor of Melbourne Airport ('the incident').

As a result of the incident Ms [sic] Ingle alleges he suffered injuries described as:

• On 27 November 2017 he was to catch a Jetstar flight to Bali but scheduling was altered by the Mount Agung volcano activity. He slipped on water unnoticed on the floor of Melbourne Airport as he walked to the Jetstar counter to find information on the changed itinerary.

• The fall was backwards as both feet went from under him onto his buttocks with the right elbow impacting the ground. The knees were not directly hit in the fall. He was 'in shock' for some minutes but noted immediate left knee pain and tightness from swelling in or around the joint and the right elbow was grazed and was bleeding. He was able to stand with support from 2 people; he was assisted to the Jetstar counter and the knee was iced; alternate flight arrangements were made; he was transported to the appropriate lounge for departure and to the plane in a wheelchair.

• In Bali he was able to hobble on the left knee. For 10 days or so he did not move away from his accommodation. By 2-3 days he could walk down 3 steps. The left knee swelling subsided. He could walk the 20 minutes to the beach after 3 weeks but remained fearful he would damage the knee if he walked on it and limited himself to no more than 1 km. He did not receive any treatment for the knee but the right elbow graze became infected and swollen requiring 10 days of antibiotics.

• The left knee caused him pain under the knee cap and he was aware of cracking and grinding under the joint with movement.

• He returned to Melbourne after 2 months and almost immediately attended his general practitioner. X-rays and ultrasound studies were done of the left knee and right elbow. Anti-inflammatory medication was prescribed.

• He has not had any problem following the fall with the right knee.

• The right elbow did not require any more specific management.

• Some months later he was reviewed by his orthopaedic surgeon. A bone scan was arranged. He had 2 steroid injections to a left knee bursa which did not help.

• Mr Ingle has pain on the medial aspect of the left knee just under the joint line which is almost constant. The pain is exacerbated by weight bearing.

• He has no catching or locking of the left knee but the left knee movements is [sic] slowed and 'lazy'. He continues to be troubled by clicking, grinding noises and sensation under the knee.

• He has no symptoms referrable [sic] to the right elbow.

• Walking is limited to 3 blocks before limited by pain. His usual routine was a 60 minute walk on the beach daily which he needs to relax but now the best he can manage is 15 minutes.

• He manages steps and stairs with difficulty and requires a rail for support.

• He has noted that the left foot 'drags' when he walks.

• He can sit without restriction but needs to keep moving the left knee to keep comfortable. He can drive for up to an hour or more.

• He lives in shared accommodation. He does his bit by keeping his room tidy and clean. He looks after himself without problems.

• He is to complete a 12 month training to become a certified drug and alcohol counsellor in August 2019.

• Mr Ingle takes no regular medication save likely Mirtazapine (he was unsure exactly) for mood management which commenced 3-4 months after his return from Bali.

• He is generally not keen and restricts other medication because of a past history of drug and alcohol dependency which he has overcome.

• He is not receiving any physical treatments at all.

• He last saw his orthopaedic surgeon in August 2018 and no interventions are planned.

• He saw a second orthopaedic surgeon in April 2019. Conservative management only was recommended with no suggestion to undertake a left knee patellar replacement.

History of other injury and past history of relevance

• In October 2012 a right knee replacement was performed followed by a left knee replacement in February 2013. He required 1 week rehabilitation following the right knee surgery but the post-operative course was uncomplicated with a good recovery and full weight bearing by 3 weeks. The left knee surgery was a 'miracle' in that he was home after 2 days and already weight bearing. He had no difficulties with either knee with respect to pain or significant limitations with walking or stairs. His regular exercise was a daily beach walk of 1-2km. Mr Ingle confirmed that both patellae were not replaced.

• Following the 1st steroid injection around early to mid-2018, some 2-3 days after the procedure, the left knee was struck on the edge of a step after he slipped because the left knee continued to be stiff and 'lag'. A direct impact over the anterior aspect of the knee was detailed. The knee was bruised and grazed. Symptoms of increased discomfort and the bruising all settled after 9 days but the benefits of the initial steroid injection were difficult to ascertain.

MEDICAL PANEL'S EXAMINATION AND CLINICAL FINDINGS

The Panel undertook a physical examination of Mr Ingle and noted the following findings:

• Anterior scars from his previous bilateral knee replacements.

• An unrelated scar on the medial aspect of the left knee from a skin infection (boil).

• A non-antalgic gait without extension lag of the left knee or evidence of left foot drop or weakness.

• A palpable mild thickening of the right elbow olecranon bursa.

• No tenderness was noted along the left knee joint line. Tenderness was noted over the pes anserinus region. There was no knee effusion detected. There was mild crepitus palpable and tenderness of the left patella to palpation compared to the right knee.

• A range of movement of the right elbow noted to be from 20° to 150° and on the left side 20° to 140°. Supination and pronation movements were normal.

• Range of movement of the left knee from 5° (fixed flexion) to 105° and of the right knee from 0° to 125°.

• Alignment of the left knee was normal at 4°. Stability of the left knee was normal in both anterior/posterior and lateral testing.

• An X-ray both knees [sic] dated 31 July 2019. Good position of both knee replacements was noted with early degenerative changes noted especially within the left medial facet of the patella without any indication of fracture.

The Panel did not consider any additional diagnostic imaging necessary in order for it to be able to complete its assessment of Mr Ingle and answer the medical question.

The Panel concluded Mr Ingle is suffering from patella-femoral symptoms and dysfunction of the left knee in the context of a previous total knee replacement in 2013.

The Panel further concluded that Mr Ingle suffered a soft tissue injury of the right elbow, which has now resolved.

The Panel considers the left knee condition stable for the purposes of impairment assessment.

The Panel conducted an impairment assessment using the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition) ("the Guides") as required by Section 28LH of the Wrongs Act 1958 ("the Act"). The Panel considered that no further information was required from Mr Ingle's treating practitioners to carry out the assessment.

The Panel conducted an impairment assessment of the left knee replacement in accordance with Table 66 of Section 3.2i of Chapter Three. The Panel used a goniometer to measure the active range of motion in accordance with the instructions in the Guides.

The Panel assessed an upper extremity impairment of the right elbow due to loss of motion pursuant to Figures 32 and 35 of Section 3.1i. The Panel then converted this to a whole person impairment pursuant to Table 3 of Chapter Three.

The Panel followed the required procedure for the combining of the whole person impairments in accordance with the Guides.

The Panel considered that there is no additional impairment resulting from the physical injuries to Mr Ingle alleged in the claim when assessed in accordance with the Guides.

In making an assessment of impairment, the Panel took into consideration Mr Ingle's history of bilateral prior knee replacements to determine the level of impairment that may have been present prior to and/or after the date of the incident and which the Panel is required to disregard in accordance with Section 28LL(3) of the Act as impairment from unrelated causes or injuries.

To evaluate the extent to which there is impairment from an unrelated injury or cause which is playing a part in Mr Ingle's current impairment, the Panel gave consideration to the Supreme Court judgements [sic] of Alcoa Holdings Limited & Anor v Peter Lowthian & Ors and John de Haas [June 2011], and Dr K S Chua v Dr Peter Lowthian & Ors [September 2011]. The Panel also gave consideration to the Court of Appeal judgment in the case of Lingenberg v Gallichio & Ors [June 2013} [sic]

The Panel understands that, in performing the task of assessing any pre-existing impairment, the Panel must have an evidentiary basis on which it can be positively satisfied of a pre-existing impairment which is to be disregarded. The Panel assessed the outcome of the 2013 left knee replacement which pre-existed the incident. It noted good function with respect to walking, activity and managing steps. The Panel noted the reports [sic] of treating orthopaedic surgeon Mr Matthew Evans dated 28 February 2013, included in the referral documents that at 3 and ½ weeks post the left knee surgery, he had a fall and had re-injured the left knee with swelling around the knee but that range of motion was noted to be 10° to 100° with good ligament stability and that no further follow up was required.

The Panel disregarded an estimate for unrelated impairment and concluded that the degree of whole person impairment resulting from the physical injury to Mr Ingle alleged in the claim is permanent and is not more than 5% and therefore does not satisfy the threshold level prescribed by Section 28LB of the Act as amended.

The Panel considers that it has assessed impairment arising from the injuries to Mr Ingle alleged in the claim in accordance with all the appropriate chapters in the Guides and considers that further explanation or detailed reasons of the basis on which it has calculated impairment is prohibited by Section 28LZG(4) of the Act.

The Panel also considered that it is not required to make a finding in relation to the issue of whether or not Mr Ingle's current medical conditions which he attributes to the injuries alleged in the claim were caused by the alleged incident that gave rise to the claim, but the Panel has assessed impairment arising from the injuries to Mr Ingle that are potentially compensable, in accordance with the referral.

26 The pleaded grounds of challenge to the Medical Panel's determination have varied somewhat during the course of this proceeding. And Mr Ingle's case was refined again at the oral hearing. However, notwithstanding any departure from the terms of Mr Ingle's amended originating motion dated 10 September 2020 that may be involved, the first defendant very fairly raises no objection to the grant of leave to Mr Ingle to put his case in the way it was put at the final hearing.[18] That case in turn, so far as it needs to be considered, is reflected in the introduction and overview above.

27 In the Medical Panel's statement of reasons (set out above), in the second paragraph under the heading 'IMPAIRMENT ASSESSMENT', the Panel said:

The Panel conducted an impairment assessment of the left knee replacement in accordance with Table 66 of Section 3.2i of Chapter Three.

28 Mr Ingle submits that this clearly indicates that the Medical Panel treated Mr Ingle's left knee replacement as the relevant injury. He further submits that the Medical Panel was wrong to do so.

29 The first defendant does not admit that the Medical Panel treated the left knee replacement as the relevant injury.[19] It refers to the Medical Panel's diagnosis of 'patello femoral symptoms' and 'dysfunction of the left knee in the context of a previous total knee replacement in 2013'.[20]

30 The first defendant also points out that, in the fifth paragraph of the statement of reasons under the heading 'IMPAIRMENT ASSESSMENT', the Medical Panel stated:

The Panel considered that there is no additional impairment resulting from the physical injuries to Mr Ingle alleged in the claim when assessed in accordance with the Guides.[21]

And it is true that, earlier in the statement of reasons, the Medical Panel had expressly noted that Mr Ingle's claim was that 'he sustained injury on 27 November 2017 when he slipped walking over water on the floor of Melbourne Airport ('the incident')'.[22]

31 It may be accepted, as Richards J said in Withers v Chalmers Industries Pty Ltd,[23] that:

... the reasons of the Panel must not be read 'minutely and finely with an eye keenly attuned to the perception of error'.[24] Rather, they should be read beneficially, with due allowance for the fact that the Panel is a non-legal, expert tribunal.[25]

32 Nevertheless, as indicated above, the Medical Panel did say, in terms, that it conducted an impairment assessment of 'the left knee replacement'. It did not say that it had assessed impairment resulting from an aggravation of the left knee replacement. It did not say that it had done some additional or separate impairment assessment in relation to some other feature or features of Mr Ingle's left knee. Moreover, it said that it had conducted the impairment assessment in accordance with Table 66 of Section 3.2i of Chapter Three of the A.M.A. Guides. That Table is entitled 'Rating Knee Replacement Results'. It assigns points (plus or minus) in relation to pain, range of motion, stability, flexion contracture, extension and alignment. Table 66 is related to Table 64, entitled 'Impairment Estimates for Certain Lower Extremity Impairments'. Indeed it seems that the only purpose of Table 66 is to enable an assessor to rate a total knee replacement pursuant to the related part of Table 64. The related part of Table 64 divides total knee replacements into three categories, as follows:

Good result, 85-100 points - 15% whole person impairment.

Fair result, 50-84 points - 20% whole person impairment.

Poor result, less than 50 points - 30% whole person impairment.

33 As I read the Medical Panel's statement of reasons, the Medical Panel applied Tables 64 and 66 directly and exclusively to what it considered to be the relevant injury, ie to what it considered to be the injury in relation to which any resulting impairment was to be assessed. The Medical Panel did not refer to any other table, or to any other provision, of the A.M.A. Guides in relation to the assessment of impairment resulting from the alleged injury to the area of Mr Ingle's left knee. In particular, the Medical Panel did not refer to either of the tables to which Mr Gardiner had referred, namely Table 41 (Knee impairments) and Table 62 (Arthritis impairments). This approach of the Medical Panel can really only be explained on the basis that the Medical Panel understood Mr Ingle's relevant injury, in relation to which it was required to carry out an impairment assessment, to be his 'left knee replacement'. After all, that is precisely how the Medical Panel itself described the subject matter of its impairment assessment.

34 It is true that, in a sense, the Medical Panel distinguished between the present state of Mr Ingle's left knee and its previous state. However, as indicated above and as I will further explain,[26] I consider that it only did so for the purposes of what I regard as a misguided attempt to comply with s 28LL(3) of the Wrongs Act. It remains clear that the Medical Panel regarded the left total knee replacement as the relevant injury.

35 I agree with Mr Ingle that, in this way, the Medical Panel misidentified the relevant injury. Where a medical question in the standard form is referred to a Medical Panel under Part VBA of the Wrongs Act, the role of the Medical Panel is to consider the injury or injuries alleged in the claim, not injuries 'at large'.[27] In the present case, at least for the most part, the injuries alleged in the claim were in the nature of aggravation injuries. Those aggravation injuries may well have been aggravations of the prior knee replacement, but they were nevertheless distinct from the prior knee replacement injury. Further, it seems that there may have been, also, a separate claimed injury or injuries in the form of what the Medical Panel called 'patello femoral symptoms' or what Mr Gardiner called 'soft tissue injury surrounding a previously well functioning left knee replacement' or 'painful patellofemoral crepitus'.[28] Mr Ingle's left patella had not been replaced.[29] In any event, it was wrong to treat the left total knee replacement as the relevant subject matter (and the only relevant subject matter) of the impairment assessment.

36 The error of identification made by the Medical Panel was similar to the error recently found to have been made by another Medical Panel in Withers v Chalmers Industries Pty Ltd.[30] That case arose under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), whereas the present case arises under the Wrongs Act, but that makes no difference for the present point. Mr Withers had sought to characterise or classify the Medical Panel's alleged error of identification of the relevant injury in various ways for the purposes of judicial review.[31] Ultimately, Richards J found that the Medical Panel had:

... failed to perform its statutory function because it did not answer the referred questions concerning the injury suffered by Mr Withers on 13 January 2016. It gave its opinion in relation to his earlier injury of 5 February 2015, which was not what it had been asked to do. This amounted to a jurisdictional error by the Panel.[32]

37 In the present case, the same conclusion - namely, that the Medical Panel's misidentification of the relevant injury amounted to a failure to perform its statutory function and thus to jurisdictional error - should be arrived at, at least if it can be said that the error was material, in the sense that the Medical Panel's answer to the referred medical question might otherwise have been different and more favourable to Mr Ingle.[33] As will be seen in the next section, I am satisfied that the error was material in this sense.

Materiality of the Medical Panel's misidentification of the relevant injury

38 In my opinion, the Medical Panel's misidentification of the relevant injury (as found above) was a material error. It led the Medical Panel to apply, directly and exclusively, Tables 64 and 66. If the Medical Panel had not applied Tables 64 and 66, it might have arrived at a different and more favourable assessment. In particular, it might have determined that the degree of whole person impairment resulting from the physical injury to Mr Ingle alleged in his claim did satisfy the threshold level.

39 That possibility is demonstrated by the medical report of Mr Gardiner. As mentioned above, Mr Gardiner arrived at a combined 'whole person impairment' assessment under the A.M.A. Guides, for the orthopaedic component, of 16%. He did so by applying Tables 41 and 62,[34] as distinct from Tables 64 and 66. Mr Gardiner's report was part of the material before the Medical Panel. There was no objection by the first defendant to my taking it into account for present purposes or at all.

40 Mr Ingle sought to rely upon additional material to buttress his contention that the Medical Panel's alleged misidentification of the relevant injury was material. He did so by obtaining and seeking to tender, as evidence in this judicial review proceeding, a medical report dated 21 July 2020 of a Mr David Slattery, orthopaedic surgeon. In the presently relevant part of Mr Slattery's report, he expresses the opinion, in effect, that Tables 41 and 62 are applicable in Mr Ingle's case. Mr Slattery would apply Table 41 differently from Mr Gardiner. He would derive a 4% whole person impairment from Table 41, rather than Mr Gardiner's 14% rating. However, like Mr Gardiner, Mr Slattery would allow an additional 2% whole person impairment under Table 62. Under the Combined Values Chart in the A.M.A. Guides,[35] this would translate to a combined whole person impairment greater than 5%.[36]

41 The first defendant objected to the admissibility of Mr Slattery's report. The objection was not based on the hearsay nature of the report. Rather, the first defendant submitted that the report was irrelevant, because it had not been before the Medical Panel. However, in my view, Mr Slattery's report is admissible on the present point. There was no challenge to Mr Slattery's expertise as an orthopaedic surgeon or to his capacity to understand and apply the relevant parts of the A.M.A. Guides. Once it be assumed or found that the Medical Panel committed a jurisdictional error by way of misidentifying the relevant injury, the materiality or otherwise of that error becomes a live issue. It is an issue to the determination of which the report of Mr Slattery is clearly relevant, just as the report of Mr Gardiner is clearly relevant. Each tends to show that Mr Ingle might have succeeded had Tables 41 and 62, rather than Tables 64 and 66, been applied.

42 The first defendant expressly declined to have Mr Gardiner or Mr Slattery called for cross-examination. Nor did the first defendant lead any evidence to contradict the reports of Mr Gardiner and Mr Slattery insofar as they indicated that a different approach was at least open under the A.M.A. Guides.

43 This is enough to show that the Medical Panel's jurisdictional error in relation to the identification of the relevant injuries was a material jurisdictional error.

Misapplication by the Medical Panel of the A.M.A. Guides

44 Even if I am wrong in my conclusion that the Medical Panel misidentified the relevant injuries, i.e. even if the Medical Panel duly understood that it was required to assess the particular injuries (being wholly or mainly aggravation injuries) that were claimed to have been caused by the slip and fall, it would remain the case, in my opinion, that the Medical Panel erred in law by applying Tables 64 and 66 to Mr Ingle's injuries; and all the more so because the Medical Panel applied those Tables directly and exclusively.

45 On my reading of Tables 64 and 66, they apply only to the assessment of impairment from total knee replacements. They do not apply to a subsequent traumatic injury, even if the subsequent traumatic injury wholly or mainly affects a pre-existing total knee replacement.

46 One may test the matter by an example that was canvassed during the hearing. In year one, a surgeon performs a total knee replacement that is a magnificent success. The very best outcome is obtained in relation to all six factors listed in Table 66 - pain, range of motion, stability, flexion contracture, extension lag and alignment. The outcome remains just as good for, say, four years and continuing. At that stage, on any view, the total knee replacement would have to be rated under Table 64 as a 'good result'. Then, in year five, the person is attacked by an assailant and the total knee replacement is bashed in with a baseball bat. All the good work is undone. Is Table 66 now to be applied so as to rate the 'knee replacement result' differently in terms of points and so as to attribute to the total knee replacement a 'poor result' under the relevant part of Table 64? Surely not. Apart from anything else, this would represent a gross injustice to the operating surgeon. More significantly, it would be completely out of harmony with the language and the general tenor of Tables 64 and 66.

47 The present situation is not relevantly different. The injuries which Mr Ingle would attribute to the fault of the first defendant were traumatic injuries. They were suffered in an apparently serious slip and fall on 27 November 2017. No doubt they affected adversely the condition of Mr Ingle's pre-existing left total knee replacement, but, of course, they were not themselves in the nature of a total knee replacement. The surgery for the left total knee replacement had taken place on 4 February 2013, some four years and nine months earlier.[37] It appears that the Medical Panel was satisfied that the left total knee replacement had been successful, at least to a substantial degree.[38] Thus, in its statement of reasons, under 'HISTORY AS TOLD TO THE PANEL BY MR INGLE' and under the sub-heading 'History of other injury and past history of relevance', the Medical Panel noted, without expressing any scepticism, Mr Ingle's comments that:

• the surgery was a 'miracle' in that he was home after two days and already weight-bearing;

• Mr Ingle had no difficulties with either knee with respect to pain or significant limitations with walking or stairs;

• his regular exercise was a daily beach walk of 1 - 2 kilometres.

Read in context, these last two comments made by Mr Ingle were made in reference to the position obtaining immediately prior to the incident in question and in reference to a significant period prior to that. The Medical Panel itself observed (under 'IMPAIRMENT ASSESSMENT') that it had assessed the outcome of the 2013 left knee replacement which pre-existed the accident, and that it had noted 'good function with respect to walking, activity and managing steps'. On any view,[39] this picture was rendered very different by the traumatic injuries apparently suffered by Mr Ingle in the incident in question. Those traumatic injuries were the injuries alleged in the claim. Subject to the matter dealt with under the next heading, they did not fall to be assessed under Tables 64 and 66. Tables 64 and 66 are designed, rather, to rate the results of surgical knee replacements.

The pre-existing knee replacement and s 28LL(3) of the Wrongs Act****.

48 The first defendant submits that the Panel's application of Tables 64 and 66 is defensible by reference to s 28LL(3) of the Wrongs Act, to which the Panel referred in its statement of reasons under the heading 'IMPAIRMENT ASSESSMENT'.[40]

50 Section 28LL(3) provides:

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

51 Before the Medical Panel, it was common ground that, some four and three quarter years prior to the incident of November 2017, Mr Ingle had had a total left knee replacement. Needless to say, Mr Ingle did not suggest that the first defendant was responsible for his pre-existing total left knee replacement. Hence any impairment resulting from it was required to be 'disregarded', i.e. not counted positively in the Panel's assessment. On the other hand, a Medical Panel is not bound to evaluate pre-existing impairment in accordance with the A.M.A. Guides. That was established for the purposes of the corresponding impairment assessment scheme under the Accident Compensation Act 1985 (Vic) by the judgment of the Court of Appeal in Lingenberg v Gallichio.[41] There is no relevant distinction between the two schemes in this respect. Indeed, the language of the directly corresponding provision of the Accident Compensation Act scheme, namely s 91(7)(c), is relevantly identical to that of s 28LL(3) of the Wrongs Act.

52 In an appropriate case, it may be open to a Medical Panel to assess impairment from a pre-existing total knee replacement by reference to Tables 64 and 66 of the Guides. An example may be a case involving a second total replacement of the same knee, where a comparison between the results of the two knee replacements may be in order. However, like should be compared with like. A distinct, traumatic aggravation of a pre-existing knee replacement is not relevantly like the knee replacement itself. As indicated above, in my view the aggravation simply does not fall to be assessed by reference to Tables 64 and 66, which are expressly designed to rate the 'results' of a total knee replacement.

53 Even if, contrary to my view, it were otherwise open to an assessor to apply Tables 64 and 66 in a 'before and after' fashion in relation to a person who suffers a traumatic injury to a totally replaced knee, such a course ought not be adopted if it would produce an 'arbitrary, capricious or irrational' result.[42] In circumstances of that kind, 'slavish adherence' to the methodology in the A.M.A. Guides is not required.[43] On the Panel's own findings of fact in the present case, it might well be thought that a conclusion of 'no additional impairment', or even a conclusion of non-satisfaction of the threshold level, was 'arbitrary, capricious or irrational', even if such a result could be squeezed out of the points system provided for in those Tables;[44] and all the more so because, at least according to Mr Gardiner and Mr Slattery, other methodologies were available under the relevant section of the A.M.A. Guides. However, it is not necessary for me to decide finally whether, even if Tables 64 and 66 were otherwise available, the Panel's determination was arbitrary, capricious or irrational.

54 As a further matter, Lingenberg v Gallichio establishes, at least by analogy, that s 28LL(3) carries with it an implied requirement that any impairment from injuries or causes that are not 'unrelated', i.e. any impairment from (actual) injuries that are claimed to have been caused by the fault of the relevant respondent, must not be disregarded.[45] Any such impairment must be considered and assessed, not excluded.[46] The Court of Appeal said:[47]

Section 91(7)(c) requires a Medical Panel to disregard only so much of a worker's assessed Whole of Person Impairment as is constituted of unrelated injuries or causes. Correlatively, the section does not authorise the Medical Panel to disregard any greater degree of the [worker's] assessed Whole of Person Impairment. In a case of this kind, application of the methodology of s 3.3f(9) of the [A.M.A. Guides] results in the panel's disregarding not only impairment from unrelated injuries or causes but also so much of the worker's assessed Whole of Person Impairment as is due to the injury in question. To that extent, s 3.3f(9) is inconsistent with s 91(7)(c) and, perforce of s 91(1)(a)(iii),[48] is excluded.

55 Likewise, to apply Tables 64 and 66 in the present case would appear to conflict with the implied requirement of s 28LL(3) that impairment from injuries or causes that are not unrelated must be included in the assessment. At least, there would appear to be such a conflict if the result of applying Tables 64 and 66 was to reveal (in the Panel's own language) 'no additional impairment' when the matter was 'assessed in accordance with the Guides'. The implied requirement of s 28LL(3) that impairment due to the injury in question must be included in the assessment will prevail over any provision to the contrary in the A.M.A. Guides. That is made clear by the combined operation of ss 28LH and 28LZG of the Wrongs Act, the effect of which is that the obligation of assessors (including Medical Panels) to make their impairment assessments in accordance with the A.M.A Guides is subject to the provisions of Division 3 of Part VBA of the Wrongs Act. Section 28LL(3) is included within Division 3.

56 Even if I am wrong about the issues of construction of the Wrongs Act and of the A.M.A. Guides, and it was in truth open to the Medical Panel to apply Tables 64 and 66 in this matter by way of a 'before and after' assessment, nevertheless, the Medical Panel's decision was flawed because the Panel made a fundamental mistake of fact in performing its assessment. In particular, it misread the report of Mr Ingle's treating orthopaedic surgeon, Mr Matthew Evans, dated 28 February 2013. Under 'IMPAIRMENT ASSESSMENT', the Medical Panel said:

The Panel noted the reports [sic] of treating orthopaedic surgeon Mr Matthew Evans dated 28 February 2013, included in the referral documents that at 3 and ½ weeks post the left knee surgery, he had a fall and had re-injured the left knee with swelling around the knee but that range of motion was noted to be 10° to 100° with good ligament stability and that no further follow-up was required.

57 In fact, the range of motion noted by Mr Matthew Evans in his report of 28 February 2013 was 10° to 110°, not 10° to 100°. This difference of 10° is a significant difference in the notional 'starting point' for the purposes of a 'before and after' assessment applying Tables 64 and 66. This mistake would have caused the Medical Panel to subtract too much from its impairment assessment of the current state of Mr Ingle's total left knee replacement. On the assumption that the Medical Panel's approach was otherwise lawful, the mistake of fact went to a fundamental issue and could have made the difference between a successful and an unsuccessful outcome for Mr Ingle. Hence it was a material jurisdictional error.[49]

58 In addition, the Medical Panel misread Mr Evans' report dated 28 February 2013 insofar as the Medical Panel described that report as having included a judgment by Mr Evans that Mr Ingle had in fact 're-injured' the left knee in a fall in February 2013. What Mr Evans had actually said was that Mr Ingle had had a fall and 'felt' that he had re-injured the knee. Mr Evans did note some swelling around the knee, but it was not excessive swelling. X-rays showed no abnormality in the knee. Mr Evans said that he thought that the fall caused a bit of bleeding into the knee which would settle down uneventfully. On its own, this error may not amount to jurisdictional error, but it does indicate that the Medical Panel further over-estimated the problems with the state of Mr Ingle's left knee that existed prior to the incident in question.

59 The determination of the Medical Panel will be quashed by an order in the nature of certiorari. As at present advised, I am not of the view that any further substantive order, such as an order in the nature of mandamus or a direction as to the constitution of any Medical Panel that may be assembled to reconsider the referred medical question in the future, is necessary or appropriate.[50] However, if any party wishes to make a submission to the contrary, I will hear it.

60 My provisional view is that the costs of this proceeding should follow the event and that, accordingly, the first defendant should pay the plaintiff's costs (including reserved costs) to be taxed on the standard basis in default of agreement. However, again, I will hear any submission that some different or additional order as to costs should be made.

61 I will not make any formal order today. I invite the parties to consult with each other as to a proposed form of order to give effect to my judgment and, if need be, to the matters referred to in the previous two paragraphs. I invite them to submit a proposed form of order to my chambers by 4pm on Tuesday 23 February 2021.

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

[2] Wrongs Act ss 28LE and 28LF.

[3] Wrongs Act s 28LF(1)(a).

[4] The full title of the publication is Guides to the Evaluation of Permanent Impairment (American Medical Association, 4th ed, 1993). See the Wrongs Act ss 28LB (definition of 'A.M.A. Guides'), 28LF, 28LH, 28LL and 28LZG(1).

[5] Wrongs Act ss 28LB (definition of 'threshold level'), 28LF(1)(a) and 28LZG(1).

[6] See, eg, Chua v Newman-Morris [2009] VSC 582, [4]-[8] (Emerton J); Saddington v Kotzman [2013] VSC 196, [11]-[16] (Kyrou J); Ko v Hall & Ors [2020] VSCA 224, [19]-[27] (Maxwell P and Beach JA). See also my judgment in Hart v Melbourne Underwater World Pty Ltd [2018] VSC 394, [2] and the additional cases cited in n 2 thereto.

[7] See Chang v Neill [2019] VSCA 151, [92]-[100]; Withers v Chalmers Industries Pty Ltd [2020] VSC 635 (Richards J).

[8] See Alcoa Holdings Ltd v Lowthian [2011] VSC 245 (J Forrest J); Lingenberg v Gallichio [2013] VSCA 143; (2013) 40 VR 60, 65 [15]-[18], 68-9 [28]-[30] ('Lingenberg').

[9] See Chang v Neill [2019] VSCA 151, [92]-[100] and see further below.

[10] See Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 176; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 492 [26].

[11] Wrongs Act s 28LT; Wrongs (Part VBA Claims) Regulations 2015 (Vic) reg 8 and Form 4 in sch 1.

[12] Colquhoun v Capitol Radiology Pty Ltd & Ors [2013] VSCA 58; (2013) 39 VR 296, 298 [6], 299-302 [14]-[21].

[13] Ibid 306-7 [38], [43], [44].

[14] Ibid 307-8 [45]. See also Sherlock v Lloyd [2010] VSCA 122; (2010) 27 VR 434; cf, in relation to Medical Panels that are bound by their own enabling statutes to give reasons, Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 485-6 [1]-[2], 493-4 [28]-[30].

[15] See below, in the second last paragraph of the Panel's statement of reasons.

[16] See and cf Hatswell v Victoria [2013] VSC 262, [57]-[60] (Kyrou J). Indeed, apart from authority, I would have considered it arguable that s 28LZG(4) of the Wrongs Act does no more than prevent a Panel from stating the specific degree of impairment in its formal determination, and that it does not (directly or indirectly) preclude the Panel from stating the specific degree of impairment, or from otherwise explaining its reasoning in detail, in any statement of reasons that it may issue (whether voluntarily or pursuant to s 8 of the Administrative Law Act 1978 (Vic)); but see Georgiou & Ors v Capitol Radiology Pty Ltd [2011] VSC 158, [73], [127]-[128] (Osborn J); Colquhoun v Capitol Radiology Pty Ltd & Ors [2013] VSCA 58; (2013) 39 VR 296, 308 [46].

[17] Colquhoun v Capitol Radiology Pty Ltd & Ors [2013] VSCA 58; (2013) 39 VR 296, 307-8 [45].

[18] Transcript of Proceedings, Ingle v Australia Pacific Airports (Melbourne) Pty Ltd & Ors (Supreme Court of Victoria, S ECI 2019 05724, Cavanough J, 20 November 2020) 57 ('Transcript').

[22] See statement of reasons under the heading 'INTRODUCTION'.

[23] [2020] VSC 635, [33].

[24] Citing Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, 287, approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ); and citing also Gamble v Emerald Hill Electrical Pty Ltd [2012] VSCA 322; (2012) 38 VR 45, 48 [9], 51 [20].

[25] Citing Gruma Oceania Pty Ltd v Bakar [2014] VSCA 252, [29]; Maimonis v Bourke [2019] VSCA 302, [51].

[26] See below under 'The pre-existing knee replacement and s 28LL(3) of the Wrongs Act'.

[27] Summers v Director of Housing [2012] VSC 395, [59]-[61] (John Dixon J) and cases there cited.

[29] The undersurface of the patella had been extensively debrided, but not resurfaced: see medical record of Mr Ingle's treating orthopaedic surgeon, Mr Matthew Evans, at Court Book 60 ('CB').

[30] [2020] VSC 635 (Richards J).

[32] Ibid [37], citing Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323, 351.

[33] Chang v Neill [2019] VSCA 151, [92]-[100].

[34] To be more precise, a footnote under Table 62.

[39] The pre-accident picture had been even better than the Panel gave Mr Ingle credit for. See below under 'Fundamental mistake of fact'.

[41] [2013] VSCA 143; (2013) 40 VR 60, 68 [28]-[29].

[43] Ibid 68 [30]. See also 68-9 [31]-[35].

[44] During the argument before me, counsel for the first defendant submitted that, even on the facts of the present case, such a result could legitimately be derived from the points system, and that the Medical Panel may well have actually done just that: at transcript 41-3, 66-7. However, I note that, because of the obscurity of the Panel's statement of reasons, it cannot be known exactly how the Panel arrived at its final estimate.

[45] [2013] VSCA 143; (2013) 40 VR 60, 69 [34].

[48] I have been unable to identify any s 91(1)(a)(iii) in the Accident Compensation Act 1985 as that Act was in force at the time of Lingenberg (or at all).

[49] A fundamental mistake of fact by a medical panel in relation to a central issue may give rise to jurisdictional error: see Karabinis v Bendrups [2017] VSC 648, [62] (J Forrest J). Ordinarily, however, a factual error relating to a non-jurisdictional fact will not amount to jurisdictional error (or other reviewable error) unless it involves a constructive failure to perform the statutory function conferred on the decision-maker: Chang v Neill [2019] VSCA 151, [92]; Iannacone v Kotzman [2020] VSC 489, [58]-[60] (Kennedy J). As to any materiality requirement, see Chang v Neill [2019] VSCA 151, [92]-[100].

[50] See and compare Davidson v Fish [2008] VSC 32; [2008] 28 VAR 179 (Pagone J); Morrison v Melbourne Pathology [2018] VSC 477 [52]-[56] (Richards J); Emmelmann v Thomson Geer Services Pty Ltd [2020] VSC 801 [56]-[58] (Moore J).