Plaintiff v Defendants

The statutory function of a medical panel convened under the Wrongs Act

1. The powers and procedures of a medical panel convened under the Wrongs Act are set out in Division 5 of Part VBA. Under that division a medical panel can only be convened to answer the medical question of whether the degree of whole person impairment satisfies the significant injury threshold level. A medical panel is not bound by any rules or practices as to evidence, but may inform itself on any matter it thinks fit, and must act informally, without regard to technicalities or legal forms.[7]
2. The statute requires the provision of certain documents to the medical panel, including the prescribed information form and the certificate of assessment. Other provisions empower the medical panel to request documents, including from the claimant. A medical panel is also empowered to request that the claimant:

(a) meet with the medical panel and answer its questions; and

(b) submit to a medical examination by the medical panel.[8]

1. The Wrongs Act also provides that a medical panel must comply with any directions properly given by the Convenor under s 28LZ(4).[9] The Convenor has issued standing directions.[10] The plaintiff drew attention to several of these, including directions 8 and 9 which describe the purpose of the Convenor's Directions including aiming to ensure that:

... Medical Panel opinions are responsive to the medical question referred and that the process affords the parties natural justice and procedural fairness.[11]

Other directions, which the plaintiff submits are relevant to defining the scope of the Medical Panel's statutory function are:

A Medical Panel will proceed to form its opinion on the medical question for the purposes of giving its Determination or Certificate having regard to all of the information held in the Panel's possession as at the date of the last examination of the claimant.[12]

(b) directions 56 and 57, which stipulate the format and manner in which documents are provided to the medical panel as well as the process by which the medical panel, where it provides reasons, certifies that it had regard to the documents provided in forming its opinion and identifies the documents referred.

1. The medical panel must assess impairment in accordance with Division 3 of Part VBA of the Wrongs Act. Pursuant to ss 28LH and 28LZG(1), that involves assessing the degree of impairment in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment (4th edition) ('AMA Guides'). Critically to this proceeding, Division 3 includes s 28LL(3) which provides:

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

In other words, in assessing whether an injury satisfies the relevant threshold, the medical panel must assess any pre-existing impairments and disregard them. Pursuant to s 28LB, the term 'impairment' is said to mean 'permanent impairment'.[13] As was observed by O'Meara J in O'Connell v Munoz Pty Ltd:[14]

...whilst that definition has an element of circularity to it, there is no indication that the term 'impairment' should bear other than its natural and ordinary meaning.

The natural and ordinary meaning of 'impairment' is that a particular body function or part is damaged or weakened. That meaning is not far removed from the definition appearing in the Glossary to the AMA Guides, which refers to 'loss, loss of use, or derangement'.[15]

The assessment of a pre-existing impairment must be evidence based,[16] but does not need to be conducted in accordance with the AMA Guides.[17] Accordingly, the relevant panel must be satisfied on the basis of the evidence before it that a particular body part or function is permanently damaged or weakened before it is required to disregard those impairments in the discharge of its obligation under s 28LL(3). In disregarding the impairment, 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...current impairment.'[18]

1. After making an assessment in response to the medical question, a medical panel must state whether the degree of impairment resulting from injury satisfies the threshold level but must not state the specific degree of impairment.[19] Importantly, there is no requirement within the provisions of the Wrongs Act for a medical panel convened under it to provide reasons to support its determination, and the authorities are clear that the Court should not infer such an obligation.[20] Reasons, if they accompany the assessment, are provided voluntarily. Reasons provided voluntarily are nevertheless amenable to review, providing, as they do, an explanation of the Panel's path of reasoning to its determination, and a basis for a reviewing court to determine whether the determination was affected by jurisdictional error.[21]
2. That there is no obligation to provide reasons is one of several points of difference between the scope of the statutory function of a Wrongs Act medical panel, and a like panel convened under workers' compensation legislation, such as the Accident Compensation Act 1985 (Vic), or the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ('WIRC Act').[22] This and other distinctions between those regimes[23] raises a legitimate question about whether, and to what extent, the principles that emerge from the authorities in which the determinations of workers' compensation medical panels have been the subject of judicial review for jurisdictional error, can be applied where the determination the subject of judicial review is one made by a Wrongs Act medical panel.
3. Interesting though this question might be, the third defendant submits, and I accept, that it does not need to be answered in this proceeding because the plaintiff's claim fails even if the principles from the workers' compensation cases are applied. Any more nuanced analysis is better saved for a proceeding in which it is truly determinative of the outcome.

1. The Medical Panel received two tranches of documents with the referral. Enclosure A accompanied the initial referral letter dated 4 June 2024.[24] Enclosure B accompanied a subsequent letter dated 12 August 2024.[25] Enclosure A comprised, among other things, the initial referral letter, the certificate of assessment and report from Mr Miller, medical records of the third defendant subsequent to the claimed injury date (including an MRI and X-ray of the left knee) and the third defendant's Peninsula Health records from 16 May 2008 to 20 December 2023 (inclusive) totalling 91 pages. Enclosure B comprised Peninsula Health hospital records concerning the third defendant from 1 April 2004 to 18 June 2024 (inclusive) totalling 102 pages.
2. Central to the plaintiff's case is a two page document, from amongst the referred documents, starting with a page titled 'Referral to Orthopaedic Outpatient Clinic' stamped as 'received' with date 6 April 2010 ('2010 Records').[26] The referral on the first page of the 2010 Records identifies the referring doctor as Dr Atef Griss and contains a handwritten notation on the top right hand side 'Knee Clinic'. The reason for referral is handwritten as '[r]ecurrent pain & swelling, [h]ad arthroscopy ≈ 10 years ago'. The second page is a printed report of the analysis of a left knee x-ray dated 23 March 2010 which states:

[t]he knee joint spaces are preserved, there is no significant spurring or evidence of recent trauma. An effusion is not evident, the bone texture appears satisfactory.

Conclusion: No significant abnormality has been demonstrated.

1. In addition to the documents, the Medical Panel examined the third defendant on 31 July 2025 and obtained a history from her. In its Reasons, the Medical Panel summarises its examination findings.[27] The Reasons record, in relation to the history provided by the third defendant, as follows:

Ms Hudgson said that prior to the injury, she had not had any significant pain, dysfunction or other medical condition involving either knee, leg or ankle and said she had not suffered any injury or any other joint disorder or medical condition of the knees at any time in the past. She said that prior to the injury on 4 August 2023, she was fully mobile and very physically active and was competing in long distance running and cycling events and was active with outdoor recreational activities and social outings.

There was no other relevant past history.[28]

Ground one - failure to take into account mandatory relevant considerations

1. An administrative body, which includes a medical panel, may fall into jurisdictional error if, in making its decision, it ignores a consideration which it is bound to take into account and that matter materially affects its decision.[29] Precisely which considerations are mandatory, and therefore relevant, depends on the administrative body and the matters specified in any relevant legislation which defines its statutory function, as well as factors that can be implied from its subject matter, scope and purpose. The failure to take a mandatory relevant consideration into account will not necessarily result in jurisdictional error; the failure must materially affect the decision under review.
2. In this case, the Medical Panel's statutory task was to consider whether the third defendant's degree of whole person impairment from her claimed injury (to her left knee) satisfies the 'significant injury' threshold. In doing so, the Medical Panel was required to consider the medical question referred, the documents provided with the referral relating to the claimed injury and the medical question, and matters arising out of the Medical Panel's questions and examination of the claimant.[30] In assessing impairment, the Medical Panel was also obliged to consider and properly apply s 28LL(3). In terms of discharging its statutory task, the authorities establish that the panel is required to give genuine consideration to fundamental issues raised by the materials before it.
3. The plaintiff contends that this Medical Panel fell into jurisdictional error because it failed to consider or actively engage with a mandatory relevant consideration, being that the third defendant had suffered a prior left knee injury as revealed in the 2010 Records, which were included in the documents with which the Medical Panel had been briefed. It submits that, consistently with the case of La Rosa v Patrick,[31] the Medical Panel was required to consider the documents briefed to it in the lawful discharge of its statutory function. It submits that the injury disclosed by those documents was a mandatory relevant consideration, or fundamental issue. Although the Reasons voluntarily given by the Medical Panel show that it accepted the third defendant's medical history to the effect that she had 'not had any previous medical condition, injury or impairment of the left knee prior to the injury',[32] the plaintiff submits that the absence of any reference to the 2010 Records which contained contrary information supports the inference that the Panel failed to actively engage with or properly or genuinely consider those referral materials. They also say the failure was material to the decision, in that there is a real possibility the Medical Panel could have arrived at a different impairment assessment had it properly taken the prior injury into account.
4. The plaintiff's submissions elide the asserted failure to consider a specific document revealing specific factual matters with a failure to take into account a mandatory relevant consideration. As the case of Chang v Neill ('Chang')[33] establishes, a relevant consideration is 'usually expressed at a significantly higher level of generality than a factual matter'.[34] This is because there is a significant difference between the relevant consideration and the factual material which might inform its consideration.[35] Respectfully, the example given in Chang illuminates that distinction well:

In the case of a medical panel being asked to assess whether a psychological injury has rendered a worker incapable of engaging in any work, the treatment that the worker is receiving is obviously a relevant consideration. That information may be contained in a report of the worker's treating psychiatrist and may also be communicated to the medical panel verbally by the worker. If the medical panel in its reasons refers to the worker's treatment solely by reference to the psychiatrist's report, it cannot be said that it failed to take into account the relevant consideration. The medical panel's failure to refer to the worker's verbal communication constitutes a failure to refer to one source of evidence informing that relevant consideration but does not constitute a failure to take into account the relevant consideration.[36]

The plaintiff here submits, in effect, that the information revealed by the 2010 Records is the mandatory relevant consideration. As such, it asserts, the failure of the Medical Panel to refer to the 2010 Records in the Reasons supports the inference that it failed to consider them. However, that submission overlooks the distinction between the mandatory relevant consideration and the factual matters that support it, in the very way Chang counsels against. Expressed at the appropriate level of generality, in discharging the Medical Panel's statutory function in this case, the existence and extent of a prior impairment to the third defendant's left knee would be a mandatory relevant consideration, especially having regard to the express requirements of s 28LL(3) of the Wrongs Act. Even accepting there is a failure by the Medical Panel to expressly refer to the 2010 Records, that is only a failure to refer to one source of evidence relevant to that mandatory consideration, and not a failure to actively engage with, or genuinely consider, it.

1. To the extent it is suggested that the Medical Panel was obliged to take into account all of the documents briefed to it as mandatory relevant considerations in order to discharge its statutory function, that proposition is inconsistent with the authorities in this Court. The following passage in Omerasevic v Kotzman[37] makes this clear:

The proposition that a medical panel is bound to take into account all matters in the referral material and, if it fails to do so, it commits jurisdictional error, is untenable. It could not be said, in the present case, that if the Medical Panel had not found the reference to the plaintiff's complaint to his general practitioner on 22 September 2009, which was buried deep within the hundreds of pages of the referral material (and to which the Medical Panel was not otherwise referred), its decision would have been tainted with jurisdictional error.[38]

I accept the third defendant's submission that the authorities which describe the necessity to consider the documents briefed with the referral go no further than requiring this Medical Panel to have regard to those documents to the extent necessary for it to correctly identify the fundamental issues that arose for its consideration, such as whether the third defendant had a prior impairment to her left knee. There is nothing in the Reasons to suggest that the Medical Panel did not consider the referral materials to the extent necessary to discharge its function. In fact, the Reasons confirm that the Medical Panel formed its opinion 'with regard to...the documents and information referred to in the Enclosure/s'.[39] There are numerous other references in the Reasons to the Panel having considered the referral material, and to specific documents within those materials.[40] These statements are to be taken at face value[41] (and, moreover, there is no reason in the circumstances of this case to do otherwise).

1. The Reasons reveal that the Medical Panel did consider whether the third defendant had a prior left knee impairment, with the Panel referring in the Reasons to the sources of information relevant to that consideration, being the documents referred to it and the third defendant's disclosed medical history. I do not consider the failure of the Panel to refer specifically to the 2010 Records supports an inference they did not consider them. Even so, they were but a source of information relevant to informing the Panel's consideration of the fundamental issue of prior impairment of the left knee. I am satisfied that the Medical Panel took account of this mandatory relevant consideration in undertaking its assessment. Given this, I do not need to determine the question of materiality of that consideration to the decision made.

1. The plaintiff's second ground is that, in accepting the third defendant's history of no prior left knee injury, the Medical Panel made 'a clear error of fact which goes against the materials before it which the Panel was bound to have regard to'.[42] It submits, therefore, that the Panel ignored or misconstrued relevant material to which it was bound to have regard, which amounts to jurisdictional error. Although a distinct ground from the failure to take account of a mandatory relevant consideration, there are overlapping features. In Chang, the Court of Appeal summarised the ground by reference to the authorities thus:

The authorities to which we have referred establish that a factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker. As the Full Court of the Federal Court emphasised in MZYTS, this is not a failure to take into account a relevant consideration in the Peko-Wallsend sense. Factual errors that may constitute jurisdictional error include a failure by the decision-maker to have regard to relevant factual material and the taking into account of such material in a manner that misconstrues its nature or effect (the latter may be described as a constructive failure to have regard to the material). Whether such a factual error amounts to a constructive failure to perform the statutory function conferred on the decision-maker will depend on the importance of the material to the exercise of the function and the seriousness of the error. Jurisdictional error will be committed if the subject matter, scope and purpose of the statutory function indicate that taking into account the relevant material - properly construed - is an essential feature of a valid exercise of the function.[43]

1. Given the obvious relevance of any prior left knee impairment to its task, I would be inclined to accept that, if there was cogent evidence of a prior impairment of the left knee within the materials, by accepting the third defendant's medical history it could be inferred that the cogent evidence had been ignored or misconstrued, such that the Panel made a factual error and constructively failed to discharge its statutory function. However, recalling the definition of 'impairment',[44] the 2010 Records do not provide such cogent evidence. The 2010 Records, which date from 13 years prior to the claimed injury, describe prior left knee symptoms such as pain and swelling and a historical arthroscope, however, those references are punctuated by the conclusion, following radiography, that '[n]o significant abnormality has been demonstrated'.[45] In my view, the evidence in the 2010 Records would not have provided a sufficient evidentiary basis upon which the Medical Panel could be positively satisfied of pre-existing impairment. Therefore, I do not accept the submission that the acceptance, by the Panel, of the third defendant's history supports the 'clear inference'[46] that the Panel ignored the other relevant material that it was required to consider in the discharge of its statutory task.
2. The plaintiff's overestimation of the cogency of the evidence contained in the 2010 Records is highlighted by its description, in its reply submissions, of the medical history given to the Medical Panel by the third defendant as 'false'.[47] The plaintiff retreated from that description at the hearing conceding that false has a 'connotation'[48] and on reflection it might just have been 'a slip of the mind'[49] that was 'untrue'.[50] That characterisation, nevertheless, ignores the fact that the 2010 Records conclude that no significant abnormality was detected following radiography. It also ignores the third defendant's evidence to the Panel that she had been 'very physically active and competing in long-distance running and cycling events'[51] before the claimed injury, and that there is no other reference, in the briefed materials, to any other symptoms of knee injury, let alone derangement or loss of use of the left knee, nor any suggestion of permanence. The more reasonable inference that would have been drawn from the third defendant's description of her history to the Panel is that, in saying she had no prior injury to her left knee, the third defendant was informing the Medical Panel that she had no diagnosed injury to her left knee. That statement was not false. Further, and more relevantly, the Medical Panel, constituted by two medical practitioners who are far better placed to construe the medical evidence contained in the records referred to them than this Court,[52] likely did not doubt the veracity of the third defendant's history because they too considered that the 2010 Records did not disclose any prior left knee injury (let alone permanent impairment). The Panel's acceptance of the third defendant's evidence despite the 2010 Records is revealed in its Reasons as follows:

The Panel noted and accepted [the third defendant's] history that she had not had any previous medical condition, injury or impairment of the left knee prior to the incident and had not suffered further injury to the left knee since then.[53]

In my view, far from ignoring relevant material, the Medical Panel gave specific consideration to the 2010 Records in determining whether to accept the third defendant's history and, having accepted the history, in finding she had no prior impairment. There was, accordingly, no constructive failure to discharge its statutory function.

1. I accept the plaintiff's submission that the burden of establishing materiality is not demanding or onerous. Given the nature of this ground of review, if factual error leading to jurisdictional error had been established, it is doubtful that the requirement of 'materiality' would have any real work to do.[54] However, given the conclusion I have reached against the plaintiff, there is no need to consider materiality any further.

Ground three - obligation to consider and properly apply s28LL(3) of the Wrongs Act

1. The plaintiff submits that by failing to properly consider whether there was any residual impairment resulting from what the plaintiff submits was a prior injury to the third defendant's left knee, the Medical Panel failed to comply with the specific statutory task set by s 28LL(3) of the Wrongs Act (and that failure being material, the Medical Panel's determination is infected with jurisdictional error). I do not accept the submission, predicated as it is on the 2010 Records establishing a pre-existing injury that amounted to impairment.
2. For the reasons discussed above, in my view, the Medical Panel found that there was no left knee impairment. Having made that finding, and since the statutory task is to disregard impairments from unrelated injuries or causes, there was nothing further for the Medical Panel to do. The Reasons nevertheless specifically mentioned the statutory task imposed by s 28LL(3) of the Wrongs Act, demonstrating the Medical Panel's awareness of that task as being within the scope of its statutory function in conducting its assessment, and considered its application, ultimately concluding that:

The Panel therefore considers that there is no evidence to establish impairment from an unrelated injury or cause which is playing a part in [the third defendant's] current right knee and right ankle impairment and which ought to be disregarded in accordance with Section 28LL(3) of the Act.[55]

1. For the reasons given above, I am satisfied that the Medical Panel did not fall into jurisdictional error, nor did it make an error of law on the face of the record, in reaching its determination regarding the degree of the third defendant's whole of person impairment and I dismiss the proceeding.
2. Both parties accept that costs should follow the event. Accordingly, the plaintiff must pay the third defendant's costs of the proceeding, on a standard basis, such costs to be taxed in default of agreement.

[1] Affidavit of Nicole Joanne Norris sworn on 14 October 2024, 21 ('NJN Affidavit'). The certificate was accompanied by a report (NJN Affidavit 25).

[2] Wrongs Act 1958 (Vic) s 28LF ('Wrongs Act') defines what is a 'significant injury'.

[4] Wrongs Act s 28LE.

[5] Wrongs Act s 28LZH.

[6] [1980] HCA 13; (1980) 144 CLR 13, 35.

[7] Wrongs Act s 28LZ(1)-(2).

[8] Wrongs Act s 28LZC.

[9] Wrongs Act s 28LZ(5); Wrongs Act s 28LZ(4) provides that the Convenor must not give directions inconsistent with any guidelines issued by the Minister under [part VBA of the Wrongs Act]. At the time the Medical Panel was convened, there were no relevant guidelines issued by the Minister.

[10] Convenor of Medical Panels, Convenor's Directions as to the Procedures of Medical Panels (Under Part VBA of the Wrongs Act 1958) 2015 ('Convenor's Directions'). At the trial, the plaintiff handed up a copy of the Convenor's Directions. No objection was made to the document being provided to the Court.

[13] Wrongs Act s 28LB (definition of 'impairment').

[14] [2022] VSC 129.

[15] O'Connell v Munoz Pty Ltd [2022] VSC 129, [41(d)], [42].

[16] Chua v Lowthian [2011] VSC 468, [135] ('Chua').

[17] See, eg Chua [132]-[134]; City of Melbourne v Neppessen [2019] VSC 84, [123].

[18] Chua [130], quoting Alcoa Holdings Ltd v Lowthian [2011] VSC 245, [73].

[19] Wrongs Act ss 28LZG(4), s 28LN(2).

[20] Colquhoun v Capitol Radiology Pty Ltd [2013] VSCA 58; (2013) 39 VR 296, [6].

[21] Edwards v State of Victoria [2021] VSC 423, [57]; La Rosa v Patrick [2022] VSC 404, [61] ('La Rosa').

[23] The third defendant highlights the obligation which appeared in s 65(6B) of the Accident Compensation Act 1985 (Vic) (before it was repealed by s 627(3) of the Workplace Injury Rehabilitation and Compensation Bill 2013 (Vic) and now appears in like terms in s 304 of the WIRC Act) upon the person referring a medical question to a medical panel to provide copies of all documents relating to the medical question in their possession. The third defendant submits there is no similarly prescriptive obligation in the Wrongs Act. The plaintiff highlighted in oral submissions that, unlike under the Wrongs Act, a medical question referred under the workers' compensation regime is not confined to a question about whether the whole of person impairment satisfies the significant injury threshold level, it can be broader, extending to work capacity and other matters.

[29] Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24.

[30] In the context of the WIRC Act, see Workcover Authority v Putrus [2023] VSCA 28, [37], [41], cited in Ramith v Homes Victoria [2025] VSC 2, [55], a case brought under the Wrongs Act (albeit for denial of procedural fairness).

[31] [2022] VSC 404, [58].

[33] [2019] VSCA 151; (2019) 62 VR 174 ('Chang').

[37] [2016] VSC 383, [105].

[38] Omerasevic v Kotzman [2016] VSC 383, [105].

[41] Maribyrnong City Council v Malios [2014] VSC 452, [48]; Vellios Electrical Contractors Pty Ltd v Barton [2014] VSC 664, [83]. Cf Edwards v State of Victoria [2021] VSC 423 [55]-[56] ('Edwards'). In Edwards, Richards J departs from the ordinary position of taking, at face value, the statement of a medical panel that it had regard to all the documents referred to it for a combination of reasons, including, the issues raised by a party's submissions to the Medical Panel and a factual error made by the Medical Panel. There are no such reasons in the present case to depart from the ordinary position.

[42] Plaintiff's Submissions dated 4 March 2025, [14].

[46] Plaintiff's Submissions dated 4 March 2025, [14].

[47] Plaintiff's Reply Submissions dated 2 May 2025, [6], [9].

[48] Transcript of Proceedings, Coles Supermarkets Australia Pty Ltd v Warfe (Supreme Court of Victoria,

S ECI 2024 05419, Goulden AsJ, 1 August 2025) T27.7 ('Transcript').

[52] It is to be borne in mind that a medical panel's opinions are informed by expertise that this Court does not possess, meaning it is difficult to conclude that an opinion was not open to a medical panel if the opinion was materially informed by that panel's expertise: La Rosa [55] citing Sidiqi v Kotsios [2021] VSCA 187, [34]-[37].