Plaintiff v Defendants

2 Ms Tanner's underlying claim is a common law claim for damages in respect of injuries sustained following a fall on a footpath. Brimbank is the authority responsible for inspecting, maintaining and repairing the footpath.

3 Brimbank seeks that the determination of the Panel be quashed on the basis that the Panel erred in failing to accord procedural fairness to Brimbank. Brimbank alleges that the Panel took a history from Ms Tanner during its examination of her, during which Ms Tanner reported neck spasms and stiffness. Brimbank alleges that this was new information about which it was not on notice and could not reasonably have anticipated. As such, the Panel was required to revert to the parties, inform them of this new information, and invite an opportunity to comment or respond before reaching a decision.

4 The first and second defendants, comprising the Panel, did not appear in the proceeding, advising the Court that they would submit to such orders as the Court may make in accordance with the comments of the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[1]

5 Brimbank relied on an affidavit of Nicole Norris (solicitor) made 27 February 2025 and the exhibits thereto, written submissions dated 3 July 2025 and reply submissions dated 10 September 2025. Ms Tanner relied on written submissions dated 25 July 2025.

6 Ms Tanner tripped and fell on a footpath on 2 March 2023. Ms Tanner alleges that, as result, she has sustained physical injuries.

7 On 16 August 2024, Mr Raf Asaid, orthopaedic surgeon, certified that in his opinion, the degree of impairment resulting from Ms Tanner's injury satisfied the threshold level. The injury assessed by Mr Asaid was described as 'right distal radius fracture'. In an accompanying medico-legal report, Mr Asaid noted that Ms Tanner:

...reports that she has since developed pain in her neck, both shoulders, and her right elbow, which she attributes to compensating for her right wrist injury. These are likely to be soft tissue injuries.

8 On 28 October 2024, Brimbank referred Ms Tanner to the Medical Panel. The prescribed information described the injuries alleged to have been suffered as a result of the incident, as follows:

• injuries to the right upper limb including but not limited to the right arm, elbow, wrist and hand;
• injuries to the bilateral shoulders;
• injuries to the spine including but not limited to the cervical spine.

9 On 20 November 2024, written submissions on behalf of Ms Tanner were forwarded to the Panel, together with a bundle of clinical records. Brimbank did not make any submissions to the Panel, nor provide any additional medical material.[2]

10 On 6 December 2024, the Panel conducted a medical examination of Ms Tanner.

11 On 4 January 2025, the Panel, comprising a physician and an orthopaedic surgeon, made its determination.

12 The Panel stated that it formed its opinion with regard to the documents and information referred to in enclosures as well as the history provided by Ms Tanner and the examination findings elicited by the Panel at its examination of Ms Tanner.

13 Relevantly, the history taken from the Panel included 'neck spasms that occur once a month with no specific triggers' and 'neck stiffness on the right with difficulty moving the neck'. The Panel recorded that:

On examination of Ms Tanner's neck, she was able to forward flex to 20 degrees and demonstrated neck extension of 40 degrees. She was able to rotate to the right 20 degrees and rotate to the left 40 degrees. She was able to lateral flex to the right to 30 degrees and to the left to 40 degrees.

14 The Panel concluded that Ms Tanner was suffering from soft tissue injury affecting the lower cervical spine with no radiculopathy potentially caused in the manner alleged in the claim. The Panel considered it was unnecessary to undertake any further diagnostic analysis regarding any other injury to Ms Tanner alleged in the claim, in order to answer the medical question.

15 The Panel determined that the degree of whole person impairment resulting from the injury to Ms Tanner alleged in the claim satisfied the threshold level.

16 Brimbank accepted that the Panel was required to assess impairment from all potentially compensable injuries and that the spine, including the cervical spine, or the neck, was a claimed injury. Brimbank's complaint, therefore, is not based on an assertion that the neck injury was itself new information. Rather, Brimbank's complaint is that the Panel had regard to an entirely new set of symptoms, which were material to the Panel's determination.

17 Brimbank submitted that the complaints to the Panel by Ms Tanner of neck spasms and neck stiffness amounted to new information about which Brimbank was not on notice and could not reasonably have anticipated. It was information which came 'out of the blue', as were the Panel's observations about Ms Tanner having a restricted range of movement to her neck. As such, the Panel was required to revert to the parties, inform them of this new information, and provide an opportunity to the parties to comment or respond before reaching a decision.

18 Brimbank submitted that it was particularly relevant that this new information came against a backdrop of a lack of prior complaints in respect of these reported symptoms to any of her treating doctors, her treating surgeon, her treating physiotherapy clinic, or Mr Asaid. It also came against a backdrop of an absence of radiological investigations in relation to the neck or the cervical spine, and a lack of treatment for any reported neck spasm or stiffness.

19 Ms Tanner submitted that the neck injury did not come 'out of the blue'. Brimbank could and should have anticipated Ms Tanner's neck was going to be an issue considered by the Panel. In other words, Brimbank knew that there was a case to be met that there was an injury to the neck which was to be assessed by the Panel. In that sense, the neck injury symptoms were not new information about which Brimbank was not on notice.

20 The function of a medical panel is to form and give its own opinion on the referred medical question. It is not merely a passive body which cannot go beyond the material submitted to it, but rather has the capacity to take its own history and act upon its own expert assessment.[3] In performing its function, a medical panel is to observe procedural fairness.[4]

21 In Vegco Pty Ltd v Gibbons, Kyrou J stated that:

A medical panel may breach the rules of natural justice where it relies on new information provided to it by the worker during an examination by the medical panel, a new medical report, evidence that has not been seen previously by the worker or a matter within the panel's own expertise and does not, prior to reaching a final opinion, provide the substance of this new information, evidence or matter to the parties affected by its opinion and give them a reasonable opportunity to address it.[5]

22 In Francis Plumbing & Gasfitting Pty Ltd v Davine, O'Meara J similarly accepted that there may be a breach of natural justice where a medical panel has acted upon either an entirely new symptom or a previously unidentified condition.[6]

23 However, whether there has been a breach of procedural fairness remains a question of fact and degree[7] necessitating a consideration of 'whether the party had notice of the particular issue and could reasonably have anticipated the development or opinion concerned'.[8] Ultimately, any conclusion in this regard will turn on whether 'the history, assessments and/or opinion of the Panel can be said to have come "out of the blue"'.[9]

24 I accept that it can be inferred from the reasons of the Panel that the neck spasms and stiffness of the neck were matters that informed the Panel's impairment assessment, as were the Panel's examination findings.

25 However, at all times, the claimed physical injuries included 'injuries to the spine including but not limited to the cervical spine'. Accordingly, it must have been anticipated by Brimbank that the Panel would take a history from Ms Tanner and conduct a physical examination in respect of her neck. In such circumstances:

...it should reasonably have been anticipated that a history of pain and restriction could be given by the Worker and, more importantly, that detailed physical assessment by the Panel might well reveal physical restrictions translating into a significant whole person impairment.[10]

26 Further, Mr Asaid's diagnosis of Ms Tanner's physical injuries sustained as a result of the injury included pain in Ms Tanner's neck, likely to be a soft tissue injury. His report made it clear that Ms Tanner had reported pain and discomfort in her neck.

27 The description given by Ms Tanner as to her symptoms, namely spasms and stiffness, was not inconsistent with her previous assertions of injury to the cervical spine or the material before the Panel, and in that sense could not be described as coming out of the blue.

28 Whether there has been a breach of procedural fairness will always be a matter of fact and degree. It cannot be expected that a medical panel is required to give the parties a further opportunity to make submissions in respect of symptoms described by a claimant at a medical panel examination, simply because the described symptoms were not identical in every respect to previously described symptoms.

29 In this instance, the explicit references to Ms Tanner's neck injury in the material before the Panel, and the content of those references, were such that it was not necessary for the Panel to revert to Brimbank about Ms Tanner's assertions of neck stiffness and spasms before rendering its determination. Similarly, it was not necessary for the Panel to revert to Brimbank about their findings as to a restricted range of motion in her neck before rendering its determination.

[1] [1980] HCA 13; (1980) 144 CLR 13.

[2] At the relevant time, proceedings were not on foot so as to entitle Brimbank to request Ms Tanner to submit to a medical examination pursuant to r 33.04 of the County Court Civil Procedure Rules 2018.

[3] Francis Plumbing & Gasfitting Pty Ltd v Davine [2024] VSC 538, [117] (O'Meara).

[4] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, 498 [47].

[5] Vegco Pty Ltd v Gibbons [2008] VSC 363; (2008) 30 VAR 1, 8 [23] (Kyrou J) (citations omitted).

[6] Francis Plumbing & Gasfitting Pty Ltd v Davine [2024] VSC 538, [113] (O'Meara J).