Plaintiff v Defendants

1 The plaintiff was born in the Netherlands in 1959 and arrived in Australia with his family when he was 18 months old. He finished schooling at the end of year 10 and then worked with his father installing and servicing wind generators.

2 The plaintiff had a motor accident in the 1970s which left him with chronic neck and back pain and he has been on a disability support pension since 1978. He has or has had a range of other medical conditions, including episodes of depression. In recent times he seems to have done some work as an electronics technician.

3 The plaintiff claims that in an incident on 1 September 2017 the siren from an interlock device fitted to his car sounded causing him to suffer noise induced hearing loss, as well as a psychiatric injury.

4 The plaintiff says that he was exposed to the siren for '4-5 minutes', although the device data suggests that it sounded for 45 seconds.[1]

5 In that general connection, the plaintiff seems to have commenced County Court proceedings against the first defendant (which, I would infer, is the manufacturer or supplier of the interlock device).[2]

6 On 17 May 2023, pursuant to s 28LWE(1) of the Wrongs Act 1958 (Vic) ('Wrongs Act'), the first defendant referred the following questions for determination of a medical panel -

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

Does the degree of impairment resulting from the psychiatric or psychological injury to the claimant alleged in the claim satisfy the threshold level?[3]

7 Consistently with the prescribed information provided by the plaintiff, the referral identified the following injuries claimed to have been suffered as a result of the incident -

8 The referral was accompanied by various reports and records[5] including -

(a) the prescribed information form;[6]

(b) a certificate of assessment of Mr Robin Hooper, ear, nose and throat surgeon, dated 27 March 2023;[7]

(c) a report of Mr Hooper dated 3 June 2019, as well as a subsequent loss of hearing assessment dated 18 June 2019;[8]

(d) a report of Mr Robert Webb, otolaryngologist, dated 4 February 2020, together with an assessment of hearing impairment;[9] and

(e) a further report of Mr Webb dated 27 August 2020.[10]

9 The medical panel (Panel) comprised two psychiatrists, an otolaryngologist and an occupational and environmental physician.

10 The Panel conducted examinations of the plaintiff on 27 September 2023 and 2 October 2023, including an otological examination and an audiogram.

11 The plaintiff and first defendant each seem to have provided the Panel with written submissions.

12 On 8 February 2024, the Panel provided its certificate of determination which states, relevantly -

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 injury to Mr Van Der Wolf alleged in the claim does not satisfy the threshold level.

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

Answer: The Panel also determined that the degree of psychiatric impairment resulting from the psychiatric injury to Mr Van Der Wolf alleged in the claim does not satisfy the threshold level.[11]

13 The certificate of determination was accompanied by the Panel's written reasons.

14 The Panel noted that it formed its opinion with regard to the documents and information provided together with its examination findings and the history given by the plaintiff.[12]

15 The Panel also noted that the plaintiff's alleged 'injuries as a result of the incident' included '[n]oise induced hearing loss'.[13]

16 The Panel thereafter referred to aspects of the plaintiff's history, his account of the incident and other information including the plaintiff's course of treatment and current functioning and complaints.[14]

17 The Panel referred to its otological examination and then addressed the issue of 'Physical Diagnosis' as follows -

The Panel noted in accordance with Chua v Lowthian [2011] VSC 468, it must identify an injury potentially caused in the manner alleged in the claim.

The Panel considered Mr Van Der Wolf's submissions dated 16 June 2023:

"While a Panel must not purport to determine whether the claimed injury is referable to the fault of another person, it must assess the level of impairment resulting from an injury referable to the alleged fault of that other person. That is, while a Panel must not make a determination as to legal causation, it must make some determination about medical causation...

Further, it is submitted that the decibel volume of the alcohol interlock device and the duration of the siren is a disputed fact, not a medical question. The Respondent invites the Medical Panel to prefer its evidence over that of the Claimant. It is not within the jurisdiction of the Medical Panel to determine a disputed fact of evidence which is a matter for the trial court."

The Panel considered the Respondent's submissions dated 31 October 2023:

"We reiterate the assertions made in our submissions dated 17 May 2023 and note in particular that the Claimant's alleged hearing loss is not due to the incident, but rather is due to constitutional factors. This assertion is based on the medical opinion of Mr Robert Webb, otolaryngologist, who as well as examining and interviewing ... the Claimant, was provided with documentation relating to the Interlock system, the decibel rating and length of time the Claimant was exposed to the siren.

Mr Webb opined the Claimant's hearing loss is due to constitutional factors and the Claimant's hearing loss has continued to deteriorate, suggesting any hearing loss is not as a result of the alleged incident, but rather a disorder or constitutional factors.

We further submit that there is no evidence to support the assertion that the Claimant's alleged hearing loss is related to the incident and the Claimant has therefore failed to establish that the incident is causative of any alleged physical injury."

The Panel noted the dispute regarding the decibel level and length of time of exposure to the siren. The Panel also noted, however, that while it was not for the Panel to determine whether in fact the injury was caused by the negligence alleged in the common law proceeding. Nevertheless, it must ascertain the existence of an injury as the starting point of its inquiry.

In Amendola v Coles Supermarkets Australia Pty Ltd & Ors [2008] VSC 36, the Court observed that:

Similarly, for the purposes of determining the medical question, and providing a determination under s 28L.ZG(4), the Panel must identify the injury in respect of which it makes a determination. In the absence of an injury, there can be no determination of a degree of impairment "resulting from the injury". Thus, the Act contemplates that the Panel, in answering a medical question, must first determine whether the applicant actually suffers from the injury complained of.

Further, with respect to the powers and procedures of a Medical Panel in relation to a medical question referred to it, Section 28LZ(1) of the Wrongs Act 1958 states:

(1) A Medical Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.

The Panel noted the log from the date of the incident including photographic evidence. The Panel noted from the log that the alarm was activated for 45 seconds from 16:54:08 to 16:54:53. The Panel also noted that the sound rating of the device alarm was 108dBA.

The Panel noted that audiometry undertaken on 3 October 2017, shortly after the incident, showed a sloping to moderately severe high frequency loss from 1.5 KHz and a moderate low frequency loss. The loss at 4 KHz is 70 to 75 dB. The Panel noted that audiometry from 2019 showed similar hearing thresholds. The Panel noted that audiometry undertaken by Mr Webb on 11 December 2018 showed greater losses at 2 to 4 kHz than the CERA undertaken on 18 June 2019, and therefore is considered unlikely to be an accurate representation of the hearing thresholds at that time.

Audiometry performed by the Panel shows a sloping high frequency loss which is similar to the testing in 2019. No progression has occurred in hearing loss from 2017 to 2023.

The audiogram in 2018 recorded thresholds of 80 dB at 4 kHz and 65 dB at 3 kHz and 50 dB at 2 kHz. The Panel's recent audiogram shows thresholds of 65, 60 and 45 dB at these thresholds. Mr Webb states in his report, given the deterioration of hearing thresholds, that "This indicates that he has some disorder causing a progressive loss." However the CERA testing has failed to show a progressive hearing loss. In addition, Mr Webb concludes that the "pattern of Mr Van der Wolf's audiogram does have features consistent with a noise induced hearing loss." The Panel noted the pattern of its audiogram (a sloping high frequency hearing loss) which is indeed consistent with, but not diagnostic of, a noise induced hearing loss, however the Panel further noted the log from the incident with a 45 second exposure to 108 dBA which the Panel considered insufficient to result in noise induced hearing loss.

The Panel therefore concluded that the incident is unlikely to have exposed Mr Van Der Wolf to potentially damaging noise and therefore unlikely to have resulted in hearing loss.

The Panel disagreed with Mr Webb that Mr Van Der Wolf had a "disorder causing a progressive loss", as the loss was not progressive but agreed that the hearing loss was more likely to be constitutional and that the observed "pattern of loss can also occur with constitutional disorders of the ears and is not diagnostic of a noise induced hearing loss."

The Panel disagreed with Mr Hooper that Mr Van Der Wolf was suffering from noise induced hearing loss and further noted that Mr Hooper had relied on "Mr Van Der Wolf called the company which made the siren and was told that the decibel output was 118dB. If this is true then 14 seconds of exposure at this level will be sufficient to cause a degree of hearing impairment."

In the Panel's opinion, Mr Van Der Wolf's described noise exposure would be extremely unlikely to result in the measured severe hearing loss and the Panel therefore concluded that the measured hearing loss is more likely due to unrelated constitutional factors.

The Panel therefore concluded that Mr Van Der Wolf is suffering from sensorineural hearing loss, of constitutional origin, and which the Panel does not identify as an injury potentially caused in the manner alleged in the claim.[15]

18 The Panel thereafter addressed the plaintiff's mental state as well as the issue of psychiatric diagnosis.[16]

19 In respect of assessment of impairment, the Panel stated, relevantly -

The Panel is aware that it must identify an injury potentially caused in the manner alleged in the claim. The Panel will not be able to do so if it concludes that Mr Van Der Wolf's current impairment is the result of the ordinary progression of a pre-existing condition.

In the Panel's opinion, Mr Van Der Wolf is suffering from sensorineural hearing loss of constitutional origin, which the Panel does not identify as a potentially compensable injury.

In circumstances where there is no "injury", there is no impairment to be assessed. See: the decision in Amendola v Coles Supermarkets Australia Pty Ltd & Ors [2008] VSC 36 wherein Kaye J. observed that "...an impairment cannot result from an injury, where there is no injury. It would, in my view, be inconceivable that the legislation contemplated that a Medical Panel was required to assess an impairment, notwithstanding that the Panel could not elicit any evidence of injury."

As the Panel is of the opinion that Mr Van Der Wolf is not suffering from any physical injury attributable to the incident, the Panel concluded that Mr Van Der Wolf has no impairment to assess in accordance with the American Medical Association Guides to the Evaluation of Permanent Impairment (4th edition) ("the Guides").

The Panel therefore concluded that the degree of whole person impairment resulting from the physical injury to Mr Van Der Wolf alleged in the claim is not more than 5%.[17]

20 The Panel then returned to the issue of psychiatric impairment, before noting the respective submissions of the plaintiff and the first defendant.

21 In that general connection, the Panel ultimately stated as follows -

The Panel also considers that it is not required to make a finding in relation to the issue of whether or not Mr Van Der Wolf's current impairment which Mr Van Der Wolf attributes to the injury alleged in the claim was caused by the circumstances of the incident, as alleged, that gave rise to the claim, but the Panel has assessed impairment only arising from the injuries to Mr Van Der Wolf that are potentially compensable.[18]

22 The plaintiff commenced this proceeding by originating motion that seemingly advanced several purported grounds of judicial review, including a complaint that the plaintiff had been denied procedural fairness.

23 The plaintiff later amended his originating motion in order to rely only upon a contention that the Panel erred by -

Impermissibly answering a factual or legal causation question regarding the actual decibels volume of the alcohol interlock device and the duration of the siren on the Date of Incident, as opposed to answering the medical question which required it to consider any impairment arising from potentially compensable injuries allegedly caused by the tortfeasor and to assume it was caused as alleged.[19]

24 In that connection, the plaintiff seeks an order in the nature of certiorari quashing the Panel's determination and remitting the medical question for determination by a differently constituted medical panel.

25 The plaintiff and first defendant each filed and served outlines of written submissions and the plaintiff filed and served a short written reply.[20]

26 The plaintiff refers to the amendment of the definition of 'medical question' by the Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic). Since the amendment, that definition has read 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.[21]

27 The plaintiff also refers to extrinsic materials in respect of that amendment, as well as subsequent authority,[22] and submits that a medical panel must assess 'all potentially compensable injuries'.

28 In that connection, the plaintiff submits that -

Assuming an injury is found, the Panel's obligation in assessing impairment pursuant to the referred medical question was summarised by Justice Emerton (as the President then was) in Chua v Newton-Morris [sic: Newman-Morris]: the Panel must "consider the injury allegedly caused by the tortfeasor and assume that it was caused by the tortfeasor as alleged". It is not for the Panel to determine (for example) whether an injury was caused by the alleged incident, or by the negligence alleged in the common law proceeding - those are matters to be determined by the Court.[23]

(a) the Panel considered whether the plaintiff's injuries could have been sustained in the claimed incident and thereby engaged in a 'causation analysis which was forbidden';[24]

(b) having found 'measured severe hearing loss' -

... the Panel was required to assume ... [it] was caused by the Incident, and proceed to assess the degree of impairment for binaural hearing loss "in accordance with" the NAL Procedure (which the Panel failed to do) ... .[25]

30 The first defendant takes issue with the plaintiff's allegation of error and submits that -

... [the Panel] assiduously followed the dictate of the defined term medical question in accordance with the construction of widely accepted authority of this Court. Any determination by a Panel must first identify an injury the subject of the claim and then determine whether the degree of impairment resulting from that injury to the claimant alleged in the claim satisfies the threshold level. [The Panel] did so, unimpeachably.[26]

31 The first defendant thereafter refers to the statutory definition of 'medical question' as well as several subsequent decisions of the Court, particularly Amendola v Coles Supermarkets Australia Pty Ltd ('Amendola'),[27] Melbourne Health v Lloyd ('Melbourne Health'),[28] Chua v Newman-Morris ('Chua v Newman-Morris')[29] and Chua v Lowthian ('Chua v Lowthian').[30]

32 In that context, the first defendant points to particular aspects of the Panel's reasons, as well as the material before the Panel, and submits as follows -

[32] The combination of all this data and assessment by the Panel was taken into consideration in order for it to determine whether there was a potentially compensable injury here for assessment (see: Chua [v Lowthian] per Osborn, J) or whether an applicant has an injury from which such impairment resulted (see: Amendola, Kaye, J).

[33] The expert assessment performed was not one that either purported to nor did it assess whether the claimed incident caused the hearing loss. Rather there was a far more complex assessment performed by the Panel as to whether the hearing loss was a disorder which was organic and the role in which that organic hearing loss was related to any impacts, whatever they were, of the alarm on the interlock device. That involved expert assessment of all prior reports and data and expert knowledge and interpretation of available data as to both the Plaintiff and as how the populace responds to auditory impact (see: Webb Report dated 4/2/2020 at page 3). It did not involve a binary assessment of the time the Plaintiff said he was exposed to the alarm, albeit that was in contradistinction to the logged period from the alarm system itself.

[34] A fair reading of the Determination does not state (impermissibly) that the interlock device did not cause the hearing loss. It records a complex series of expert assessments concluding hearing loss of constitutional origin and hence a finding that there is no potentially compensable injury for that reason.[31]

33 In reply, the plaintiff submits, in particular, that -

(a) by finding that the plaintiff was suffering from 'sensorineural hearing loss, of constitutional origin' the Panel impermissibly equated the identification of the existence of injury with the 'origins' of that injury;[32]

(b) in accepting that it was unlikely that the incident had caused the 'measured hearing loss' -

... the Panel must necessarily have accepted the potential that the "Injury" ("measured hearing loss") could have been caused, or contributed to by, the Incident.[33]

(c) while it may be accepted that the Panel could be considered to have expertise enabling it to consider questions going to causation -

... . That type of question and line of inquiry, however, was intended to be excluded from consideration as part of referrals of a narrower "medical question" which can be referred to a Panel pursuant to Part VBA of the [Wrongs Act].[34]

34 In a commendably focused address, counsel for the plaintiff identified the sole issue as being whether the Panel went beyond its 'statutory remit by impermissibly engaging ... in a causation analysis which was forbidden'.[35]

35 Counsel thereafter went to several features of the argument identified in the plaintiff's outline of submissions.

36 In particular, counsel submitted that the Panel had erred in failing to conduct an impairment assessment of the 'found measured hearing loss' and so had deprived the plaintiff of -

... the opportunity to put evidence before a judge or a jury for them to ultimately decide whether he is entitled to pain and suffering damages on the basis that his found hearing loss was [caused by] the siren on the day in question.[36]

37 Finally, counsel for the plaintiff referred to a decision that highlighted the distinction between an injury and its origins, albeit in a slightly different statutory context.[37]

38 In response, counsel for the first defendant highlighted -

(a) the definition of 'medical question';

(b) aspects of the reasons of Kaye J in Amendola;[38] and

(c) High Court authority in respect of the use of extrinsic materials.[39]

39 Counsel thereafter submitted that there had been no 'impermissible determination of causation' and highlighted steps in the Panel's reasoning as well as some of the material referred to by the Panel in its reasons.[40]

40 In the course of that exercise, counsel for the first defendant highlighted the report that identified the data derived from the interlock device[41] and later submitted that -

The panel ... in its expert opinion, concluded that the claimant suffered from sensorineural hearing loss of constitutional origin, and not an injury potentially caused in the manner alleged.[42]

41 Counsel for the plaintiff made a number of points in reply. In particular, in respect of the data derived from the interlock device, counsel submitted that -

... when we start delving into factual matters here as to what did and did not occur on the day of the incident as to the level of the decibels, the determination of a question as to whether the found hearing loss was likely or unlikely to have been caused by that exposure is precisely the erroneous territory into which the panel fell, in doing so engaging in a causation analysis which was both medical and legal in nature ... .[43]

(a) Part VBA of the Wrongs Act precludes claimants in certain cases from recovering damages for non‑economic loss 'in respect of an injury' unless the person has suffered 'significant injury';[44]

(b) 'significant injury' means that the degree of impairment of the whole person resulting from the injury has been assessed as satisfying the 'threshold level';[45]

(c) such an assessment must be made by an approved medical practitioner;[46] and

(d) in undertaking such an assessment, among other things, 'impairments from unrelated injuries or causes are to be disregarded'.[47]

43 A respondent served with the certificate of assessment of an approved medical practitioner may refer a 'medical question' in relation to the assessment to a medical panel for determination.[48] I have earlier extracted the terms of the definition of 'medical question'.[49]

(a) a medical panel may ask a claimant to submit to a medical examination by the panel or a member of the panel;[50]

(b) after making the assessment, the medical panel must give the claimant and the respondent its determination of the medical question;[51] and

(c) as the case may be, the determination of the medical panel must be accepted by a court as a determination of 'significant injury' or that 'the injury is not significant injury'.[52]

45 There are a range of legal principles that must be borne in mind when, on judicial review, it is contended that the determination of a medical panel must be set aside.[53]

(a) the primary function of a medical panel is to form and give its opinion on the medical questions referred to it;[54]

(b) the opinion of a medical panel on medical questions of fact raised by the questions asked will be informed by an expertise which a reviewing court does not possess;[55] and

(c) the reasons of a medical panel must be read fairly, as a whole and in context, and not subjected to overly zealous judicial review.[56]

47 In that general context, as I have noted, the plaintiff essentially contends that -

(a) a medical panel must assume that the alleged injury was caused by the tortfeasor and it is not for a panel to determine whether an injury was caused by the alleged incident;

(b) accordingly, the Panel was presently required to assume that 'measured severe hearing loss' was caused by the incident and, from that point, proceed to assess the degree of impairment;

(c) instead, the Panel erred by undertaking a 'forbidden' analysis of 'legal causation'.[57]

48 The starting point is the statutory provisions and authorities to which both parties referred in argument.

49 As to the statute, the presently applicable statutory definition of 'medical question' was substituted in 2003 and is directed to 'whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level'.

50 The extrinsic materials relating to that definition include statements that, for example -

The medical question has been revised to make it clear that the panel's assessment is based on the injuries that the claimant has cited in his or her claim, and that issues relating to causation are therefore left to the parties or a court to determine. The rewording of the medical question also ensures that the panel's certificate relates to the required 'above/below threshold' response and does not drift into other issues.[58]

51 For its part, the first defendant relied upon authority in support of the proposition that historical considerations and extrinsic materials cannot displace clear statutory text.

52 As to authority, Amendola concerned a claim in respect of a range of injuries alleged to have been sustained in a fall, including to the applicant's neck, right shoulder, right elbow and ankles. The first respondent referred the statutory question to a medical panel.

53 The panel undertook its examination and, despite the applicant's complaints of symptoms as well as minor features shown in radiology, the panel determined that there was 'no clinical evidence of persisting injury to the neck, right shoulder, right elbow or ankles'.[59] It follows that the panel found that there had been only temporary or transient injury and there was no longer any 'persisting injury' in respect of which the panel might undertake an impairment assessment.

54 On judicial review, the applicant submitted that the panel lacked power to make such a finding because the panel had been 'confined to determining the degree of impairment in respect of injuries alleged by an applicant'. In that connection, the applicant referred to the form of the definition of 'medical question' and related extrinsic materials.[60]

[30] In my view, the submission ... involves reading too much into the inclusion of the word "alleged" in the definition of "medical question" in s 28LB. The inclusion of the word "alleged", in the definition, was necessary in order to identify the particular injury (or injuries) in respect of which the impairment assessment is to be made. In the absence of the adjective "alleged", the definition would otherwise be meaningless. I do not consider that, properly construed, the definition of "medical question" operates to confine a Medical Panel to determining impairment, without first determining whether an applicant has an injury from which such impairment resulted.

[31] It is important to bear in mind that the role of the Panel, as identified in the Act, is to determine whether the degree of impairment of the whole person "resulting from the injury" is above the threshold level. A number of provisions make express reference to the assessment, first by the approved medical practitioner, and then by the Panel, of the degree of impairment "resulting from the injury". Section 28LZG(4) requires that the determination of the Medical Panel must (where appropriate) "state whether the degree of impairment resulting from the injury satisfies the threshold level ... ". Axiomatically, an impairment cannot result from an injury, where there is no injury. It would, in my view, be inconceivable that the legislation contemplated that a Medical Panel was required to assess an impairment, notwithstanding that the Panel could not elicit any evidence of injury.

[32] Section 28LL(3) states that impairments "from unrelated injuries or causes" are to be disregarded in making an assessment. Accordingly, a Panel is required to reach some conclusion as to the cause of a particular impairment elicited by the Panel. Contrary to the contention of [the applicant], the Panel is not confined to determining impairments. For the purposes of s 28LL(3), the Panel must make some determination as to the cause of the impairment. Similarly, for the purposes of determining the medical question, and providing a determination under s 28LZG(4), the Panel must identify the injury in respect of which it makes a determination. In the absence of an injury, there can be no determination of a degree of impairment "resulting from the injury". Thus, the Act contemplates that the Panel, in answering a medical question, must first determine whether the applicant actually suffers from the injury complained of. It follows that the Panel did have power to determine, in this case, that there was "no clinical evidence of persisting injury to the neck, right shoulder, elbow or ankles" of the applicant.[61]

...

(a) the definition of 'medical question' (and associated extrinsic materials) do not operate to exclude consideration by a panel of issues of medical causation;

(b) in particular, a panel can determine whether the applicant suffers from the injuries complained of; and

(c) a panel is not confined to determining impairments.

57 In short, the panel in Amendola did not err in considering the applicant's complaints, the radiological investigations and its examination findings and thereafter determining that the claimed injuries were not 'persisting'.

58 Melbourne Health concerned a different issue. The second defendant had suffered porphyria since 1976, but had only been treated by the plaintiffs since 1992. However, the reasons of the medical panel revealed no attempt to link its determination with 'an injury referrable to ... treatment or any failure of diagnosis [by the plaintiffs].[62]

59 As explained by Pagone J, that failure was explained by the anterior failure of Melbourne Health to refer the panel to an injury that could be productive of a relevant answer to the medical question.

60 In any event, his Honour accepted that the panel had exceeded its jurisdiction and stated -

The question for determination by the medical panel ought to have identified the injury by reference to the fault of another person. It was the injury identified in the referral which needed to be delineated as a potentially compensable injury to the claimant and specifically exclude from the description of the injury for assessment by the medical panel Ms Currie's hereditary coproporphryia [sic: coproporphyria] or hereditary porphyria.[63]

The conclusion that the medical panel ought to have been asked a question identifying the injury with a compensable claim does not carry with it the conclusion that Melbourne Health was required to make findings about fault or causation. It is clear from the Act that questions about causation and fault are not for the medical panel. Its role is essentially to determine something about the nature of the injury to permit a category of compensation to be sought in an appropriate forum.[64]

62 In that connection, his Honour cited Amendola, and thereafter also referred to the extrinsic materials presently emphasised by the plaintiff.

63 In some ways, Chua v Newman-Morris was similar to Melbourne Health. The claimant alleged that there had been delay in the correct diagnosis and treatment of her left leg and ankle by the plaintiff, who was her treating general practitioner, and as a consequence of which she claimed to have suffered 'injury, loss and damage'.

64 In that context, the plaintiff submitted to a medical panel that -

... the impairment arising from the injury, if any, was the impairment consequential on the claimant not being referred at an earlier stage for specialist opinion and radiological examination after 2 August 2004 and before 7 November 2005.[65]

65 Nonetheless, it was clear from the subsequent reasons of the panel that it had assessed the claimant's impairment 'at large'.[66] In respect of the submission to which I have referred, the panel stated -

The Panel does not accept this proposition. Such a proposition would involve the Panel embarking on an analysis of causation and liability. The Respondent [the plaintiff] itself submits that the "... question of negligence and matters relating thereto ... are not matters for the consideration or determination of the Panel".[67]

66 The panel thereafter referred to the second reading speech of the Minister in respect of the amendment of the definition of medical question in 2003.

67 Emerton J referred to the definition of medical question as well as the related extrinsic material and stated -

[36] This does not support an argument that the medical panel can only consider injuries 'at large'. To the contrary, it makes plain that the panel is concerned with the injury or injuries alleged in the claim. The panel must consider the injury allegedly caused by the tortfeasor and assume that it was caused by the tortfeasor as alleged. However, that does not absolve the panel of responsibility to correctly identify - for the purposes of assessing the degree of impairment - the injury which is alleged to have been caused by the tortfeasor.

[37] The requirement that the Panel assess impairment arising from the injury that occurred as a result of the incident which is the basis for the claim does not require the Panel to determine whether the plaintiff caused the injury in respect of which damages are sought. Rather, it requires the Panel to assess the degree of impairment resulting from a particular injury - the injury in respect of which damages are sought. In this case, it is the injury suffered by the plaintiff as a result of delay in the treatment and diagnosis of a pre-existing dysfunction of the lower left leg and ankle.

68 Thereafter, her Honour referred with evident approval to the reasoning of Pagone J in Melbourne Health.[68]

69 Consequently, her Honour set aside the medical panel's determination and referred the medical question to a new panel for re-determination.

70 That led to the subsequent decision in Chua v Lowthian, in which, among other things, the plaintiff again contended that the new panel had misdirected itself by assessing the claimant's impairment 'at large'.

71 In that general connection, Osborn J referred to Amendola and Melbourne Health and stated -

[59] The medical question in the present case thus required the Panel to first identify a potentially compensable injury and then to assess whether that injury caused the threshold level of impairment.[69]

[60] It was not for the Panel to determine whether in fact the injury was caused by the negligence alleged in the common law proceeding. Nevertheless, it must ascertain the existence of any injury as the starting point of its inquiry.

(a) noted that the new panel had summarised the submissions made to it, and that it had also referred to the reasoning of Emerton J in Chua v Newman-Morris; and

(b) rejected the contention that the new panel had misdirected itself in the manner alleged.

73 It will be apparent that the circumstances in the above cases were not identical to those in the present case. In particular -

(a) in Amendola, the panel addressed the relevant injuries alleged, but found them not to be 'persisting';

(b) in Melbourne Health, the panel did not address the injuries alleged; and

(c) in Chua v Newman-Morris, the panel erroneously addressed the claimant's ankle condition 'at large' - however, that error was not repeated in Chua v Lowthian.

74 That said, from all of the above it should be clear enough that -

(a) the function of a medical panel is to give its opinion in respect of the medical questions posed;

(b) in particular, a panel must address the injury allegedly caused by the tortfeasor - that is, a 'potentially compensable injury';

(c) in so doing, a panel is entitled to consider the nature of the injury relied upon;

(d) a panel may also consider and determine whether the claimant actually suffers from the claimed injury; and

(e) a panel is not confined to simply determining impairment.

75 In short, a panel may appropriately identify a 'potentially compensable injury' and then assess whether that injury caused the threshold level of impairment.

76 It follows that it is plainly too wide to say that a panel may never consider issues of diagnosis that necessarily depend upon expert medical knowledge, including in respect of medical causation. If that were so, the panel in Amendola, for example, would not have been able to determine that the claimant's claimed injuries were not persisting.

77 That said, it is plainly correct to say that it is not the function of a panel to determine fault - or, in other words, legal causation.

78 That brings me to the determination of the present Panel.

79 From the earlier references to the Panel's reasons, it will be evident that -

(a) the Panel identified the relevant injury alleged in the plaintiff's claim, namely 'noise induced hearing loss';

(b) the Panel noted the plaintiff's account of exposure to the siren for '4-5 minutes', but also noted that the device data indicated that the siren 'sounded for only 45 seconds';

(c) the Panel took account of the plaintiff's current complaints and also undertook an otological examination and audiogram;

(d) the Panel referred to Chua v Lowthian, the submissions of the respective parties and Amendola;

(e) the Panel referred, in some detail, to the various audiometry results over time, including the pattern of its own results;

(f) the Panel disagreed with the opinion of Mr Webb that the plaintiff's hearing loss was progressive, but agreed with Mr Webb's opinion that the plaintiff's hearing loss was 'more likely to be constitutional';

(g) the Panel disagreed with the opinion of Mr Hooper that the plaintiff was suffering from 'noise induced hearing loss';

(h) in that general connection, the Panel considered that an exposure of 45 seconds was 'insufficient to result in noise induced hearing loss' and also considered that the plaintiff's 'described noise exposure' (ie, 4-5 minutes) would be 'extremely unlikely to result in the measured severe hearing loss'; and

(i) the Panel concluded that -

... [the plaintiff] is suffering from sensorineural hearing loss, of constitutional origin, ... which the Panel does not identify as an injury potentially caused in the manner alleged in the claim.[70]

80 It will be apparent that the Panel directly addressed the injury alleged by the plaintiff in his claim (ie, noise induced hearing loss). It is not a case in which the Panel did not address the injury alleged.

81 That said, the nature of the injury alleged by the plaintiff was founded, at least in part, upon the manner in which it was said to have been 'induced'.

82 In that sense, consideration of that injury necessarily required that the Panel give some attention to the underlying circumstances. That could, of course, lead to a consideration of other medical explanations for the symptoms claimed.

83 In that regard, of course, prior to any consideration of the issue by the Panel -

(a) Mr Hooper had expressed the opinion that the plaintiff suffered from 'noise induced hearing loss';

(b) by contrast, Mr Webb expressed the opinion that the plaintiff suffered from a constitutional disorder affecting his hearing.

84 In that context, the Panel referred to Amendola, Chua v Lowthian and the relevant submissions of the parties. In particular, the Panel stated, quite correctly, that -

... while it was not for the Panel to determine whether in fact the injury was caused by the negligence alleged in the common law proceeding. Nevertheless, it must ascertain the existence of an injury as the starting point of its inquiry.[71]

85 In light of the above, the Panel engaged closely with the results of the various audiometric testing, including its own testing.

86 While the Panel evidently considered the 'pattern' of its own testing to be 'consistent' with noise induced hearing loss, it did not consider that to be 'diagnostic' of the condition. Such a statement is a classic expression of opinion born of expert knowledge and experience.

87 Unsurprisingly, the Panel also engaged with the opinions of Messrs Webb and Hooper. In particular, the Panel engaged with the part of the opinion of Mr Webb that referred to his observations concerning the 'pattern of loss'.

88 I note that that part of Mr Webb's opinion is itself directly indicative of its foundation in expert medical knowledge and experience. In particular, Mr Webb -

(a) referred to medical research in support of the view that, depending upon the amount of exposure per day, it would require 'a period of some years' to get to a hearing loss of the severity detected on assessment of the plaintiff in 2017;

(b) stated that acute acoustic trauma 'only begins to occur at above 140db' and that most cases are 'over 160dB' and involve explosions; and

(c) considered it to be 'clear' that the plaintiff's hearing loss is constitutional rather than as a consequence of 'exposure to the noise of the siren'.[72]

89 The Panel thereafter expressed its own conclusion that the plaintiff's 'measured hearing loss is more likely due to unrelated constitutional factors'.

90 In my view, the reasoning to which I have referred is indicative of the Panel -

(a) addressing the injury alleged in the claim;

(b) considering the medical character of that condition and considering an identified alternative;

(c) concluding that the alternative was more likely;

(d) accordingly, determining that the plaintiff does not suffer from the injury alleged in the claim;

(e) answering the stated medical question accordingly.

91 It will be plain enough that I do not consider any part of that to have been in error. Nor do I consider it to be indicative of any determination of 'fault' or 'legal' causation.

92 In oral submissions, counsel for the plaintiff suggested that the opinion of the Panel that 45 seconds of exposure to the siren had been 'insufficient to result in noise induced hearing loss' had involved impermissible delving into 'factual matters ... as to what did and did not occur on the day of the incident'.

93 From what I have already said, it will be apparent that the Panel considered the '45 second exposure' as well as the plaintiff's 'described noise exposure' (of 4-5 minutes) and considered neither to be likely to have resulted in 'noise induced hearing loss'. In that sense, the present submission might be thought to lead nowhere because the Panel ultimately considered each of the available versions and considered neither to be likely to have induced the injury alleged in the claim.

94 However, even if the submission might be thought to have some present substance, it seems to me to be of significance that the plaintiff has seemingly been involved in other litigation regarding the same sequence of events at the Victorian Civil and Administrative Tribunal (VCAT) against the Transport Accident Commission, in which he gave evidence and the device data was received into evidence.

95 In that proceeding, notwithstanding the plaintiff's different memory of the 'sequence and timing' of events, the parties ultimately seem to have accepted that the device data was correct, and a senior member thereafter made findings, including that 'the alarm stopped 45 seconds after it had started'.[73]

96 Subsequently, the plaintiff appealed to the Trial Division of the Supreme Court and then to the Court of Appeal. In neither place did he take issue with the factual findings made at VCAT.[74]

97 While the identity of the parties is different as between the sequence of litigation to which I have referred and the present or any subsequent litigation, that would not necessarily foreclose a contention of abuse of process in respect of any suggestion that the finding that 'the alarm stopped 45 seconds after it had started' could remain open to contest.[75] That said, there was presently no argument directed to a proposition of that kind, so the point is probably better put to one side.

98 Nonetheless, in a practical sense, the events at VCAT and since strongly suggest that any contention that there could be a subsisting factual dispute concerning the period within which the siren sounded must be, at best, considerably more theoretical than real.

99 Indeed, it must be gravely doubtful that such a 'dispute' would be any more likely to be ultimately presented for determination at a future trial than it was when it earlier fell for consideration and determination in a contested setting at VCAT.

100 In that regard, Mr Hooper would seem to be of the opinion that exposure to the siren for 14 seconds could be 'sufficient to cause a degree of hearing impairment'.[76] That being the case, I imagine that at any trial the plaintiff would be very likely to accept the suggestion that the exposure was, in fact, for 45 seconds, and thereby avoid going to the barricades unnecessarily in support of the untestable proposition that it was for '4-5 minutes'.

101 Accordingly, in the exceptional circumstances described, I doubt that there could have been a material error even if the Panel had relied only upon the proposition that the plaintiff was exposed to the siren for 45 seconds (which, of course, it did not).

102 That brings me to the final and seemingly central proposition of the plaintiff that, having allegedly accepted that there was 'measured hearing loss' potentially caused by the incident, the Panel was required to undertake an assessment impairment and erred in failing to do so.

103 From what I have already said, it should be clear enough that -

(a) the Panel correctly addressed the question whether the plaintiff actually suffers from the injury complained of (ie, noise induced hearing loss);

(b) the Panel did not accept that such an injury was 'potentially caused' in the manner alleged;[77]

(c) the Panel, in fact, determined that the 'measured hearing loss is more likely due to unrelated constitutional factors';

(d) in the circumstances, if the Panel had undertaken an impairment assessment of 'measured hearing loss', that would not have been to undertake an impairment assessment of the injury alleged in the claim (ie, noise induced hearing loss); and

(e) such an approach would therefore have failed to comply with the statutory provisions and authorities to which I have earlier referred.

104 For completeness, I should add that it seems to me to be at risk of verging upon the fanciful to contemplate that the applicable statutory scheme should require a medical panel to assess the degree of impairment of a claimed condition that, in its expert medical opinion, a claimant does not suffer from. Fortunately, however, that is plainly not required by the present statutory scheme as explained in the authorities, particularly in Amendola.

105 In light of the above, the plaintiff's ground of review must be rejected.

107 I will hear from the parties concerning the form of final orders, including in respect of costs.

[15] JCB 21-4 (emphasis in original) (citations omitted).

[21] Wrongs Act 1958 (Vic), s 28LB ('Wrongs Act').

[22] Particularly, Chua v Newman-Morris [2009] VSC 582, [36] ('Chua v Newman-Morris'); Melbourne Health v Lloyd [2009] VSC 370, [9] ('Melbourne Health'); Chua v Lowthian [2011] VSC 468, [59]-[61] ('Chua v Lowthian'); CD v Central Gippsland Health Service [2022] VSC 462, [234].

[23] JCB 1075-6 [12] (emphasis in original) (citations omitted).

[26] JCB 1080 [2] (emphasis in original) (citations omitted).

[27] [2008] VSC 36 ('Amendola').

[33] JCB 1090 [6] (emphasis in original).

[37] T9-10. See Calleja v Franet Pty Ltd [2000] VSC 339, [27]-[28] (Ashley J).

[39] T10-12. See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) [2009] HCA 41; (2009) 239 CLR 27, [47].

[44] Wrongs Act ss 28LC, 28LE.

[45] Ibid s 28LF.

[46] Ibid s 28LG.

[47] Wrongs Act s 28LL(3).

[48] Ibid s 28LWE(1).

[49] Cf Wrongs Act s 28LB.

[50] Wrongs Act s 28LZC(1)(c).

[51] Ibid s 28LZG(2)(a).

[52] Ibid s 28LZH.

[53] Amendola (n 27) [27]; Colquhoun v Capital Radiology [2013] VSCA 58; (2013) 39 VR 296, [15]-[16], [20]; Vicinity Centres PM Pty Ltd v Arik [2023] VSCA 295, [2], [57]. See also Sidiqi v Kotsios [2021] VSCA 187 ('Sidiqi').

[58] Victoria, Parliamentary Debates, Legislative Assembly, 30 October 2003, 1425 (John Brumby, Treasurer). See also Explanatory Memorandum, Wrongs and Other Acts (Law of Negligence) Bill 2003 (Vic) 16-17, Clause 13.

[61] (citations omitted) (emphasis added).

[65] Chua v Newman-Morris (n 22) [17].

[68] Chua v Newman-Morris (n 22) [42]-[43].

[69] I note that at [161] his Honour later stated a series of summary conclusions, the first of which refers to 'an injury potentially caused in the manner alleged in the claim'. However, I would take that proposition as founded in the earlier passage to which I have referred which, of course, is premised in the identification of 'potentially compensable injury' and, from that point, an impairment assessment in respect of 'that injury'.

[73] Van Der Wolf v Transport Accident Commission (Review and Regulation) [2023] VCAT 51, [54], [58], [63].

[74] Van Der Wolf v Transport Accident Commission [2024] VSC 296, [2], [19]; Van Der Wolf v Transport Accident Commission [2025] VSCA 24, [12], [25], [27].

[75] Cf Angeleska (known as Slaveska) v State of Victoria [2015] VSCA 140; (2015) 49 VR 131.