Plaintiff v Defendants

1 On 30 April 2021, the Plaintiff underwent lumbosacral surgery at the Monash Medical Centre, a medical facility operated by the Monash Health, the First Defendant. The lumbosacral surgery which was conducted was a right sided L5/S1 discectomy and rhizolysis.

2 On 19 July 2024, the Plaintiff commenced proceedings in the Supreme Court of Victoria seeking to recover damages in respect of his injuries. The Plaintiff claims to have suffered injury as a result of the surgery which was performed on 30 April 2021 which he alleges was contrary to his instructions, without his consent, and that the Defendants failed to perform a more appropriate surgery.

3 Under section 28LE of the Wrongs Act 1958 (Vic) (the 'Act'), the Plaintiff is not entitled to recover damages for non‑economic loss in this proceeding unless he has suffered a 'significant injury' within the meaning of Part VBA of the Act.

4 On or around 19 July 2024, the Plaintiff served on the First Defendant the prescribed documentation required by sections 28LT and 28LN of the Act. Dr Geoffrey Rosenberg certified that in his opinion, the Plaintiff's physical injury was a 'significant injury'.

5 The prescribed information listed the Plaintiff's injuries as:

(a) injury to the spine, including but not limited to permanent and severe left‑sided lower lumbar spinal pain with severe referred left leg symptoms/nerve root irritation;

(b) injury to the spine, including but not limited to chronic right‑sided lower lumbar spinal pain with right nerve root irritation;

(c) chronic lower lumbar pain;

(d) impaired mobility;

(e) impairment of sleep function;

(f) weight gain; and

(g) psychological/psychiatric injury.

6 On or about 10 October 2024, the First Defendant's solicitors referred a 'medical question' as defined in section 28LB of the Act to a medical panel for determination, thereby disputing the section 28LN certificate issued by Dr Rosenberg. The medical question is set out in full below at [10].

7 In the referral to the medical panel, the First Defendant's solicitors in the section of the form headed 'Description of the incident' stated: 'As described in the statement of claim dated 19 July 2024'.

8 The material that was referred by the First Defendant included an Operative/Procedural note in respect of the surgery dated 30 April 2021,[1] (the 'Post‑Operative Note') which stated that the surgery included 'a small L5 laminotomy and limited medial facetectomy' as well as rhizolysis and discectomy.

9 The Second Defendant convened a medical panel comprising the Third, Fourth and Fifth Defendants (hereby the 'Medical Panel' or the 'Panel') to provide a determination on the referred medical question. The Third, Fourth and Fifth Defendants jointly examined the Plaintiff on 11 October 2024.

Question 1: 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 the claimant alleged in the claim does not satisfy the threshold level.

11 The Medical Panel provided its 'Determination and Reasons for Determination' (the 'Determination') on 27 February 2025.[2] The Determination includes the Panel's 'Findings/Reasons' (the 'Reasons').[3]

12 In this proceeding, the Plaintiff seeks judicial review of the Medical Panel's Determination. He contends that it was affected by jurisdictional error. In particular, the Plaintiff contends that the Medical Panel failed to identify the surgery itself as the injury to be assessed, failed to take into account a relevant consideration being the Post‑Operative Note, and failed to undertake the assessment in accordance with the AMA Guides (meaning the American Medical Association's Guides to the Evaluation of Permanent Impairment (Fourth Edition) (other than Chapter 15) as modified by or under this Part) (the 'Guides'),[4] thereby committing jurisdictional error.

13 The Plaintiff seeks an order quashing the Medical Panel's Determination and remitting the referred medical question to a differently constituted medical panel to be reconsidered in accordance with law.

14 Objection was taken to the admission of an affidavit filed on 24 November 2025 (the 'Affidavit') which exhibited an expert report from Professor Greg Malham and exhibited the dictionary definitions of various terms.

15 The Affidavit was included in the Court Book apparently without objection.

16 The First Defendant argued that the expert opinion of Professor Malham ought be excluded as it did not comply with the requirements of the Civil Procedure Act 2010 (Vic) (the 'Civil Procedure Act') as to the admission of expert evidence, and that in any event it would be a rare occasion that evidence that was not before the primary decision‑maker was appropriately considered in a judicial review proceeding.

17 The Plaintiff complained of the 11th hour lateness of the objection, the first time the objection having been raised at all being at the commencement of the hearing. The Plaintiff fairly argued that if the matter had been raised at an earlier time, the issue could have been attended to and any correctional actions would have been taken. The rationale for producing the Affidavit and its exhibits was explained by the Plaintiff. The dictionary definitions were of various medical terms referred to in the proceeding and were reproduced to be of convenience to the Court. The report of Professor Malham was to explain the meaning of various surgical terms and procedures undertaken on the Plaintiff to assist the Court in understanding the classification and nature of the injury, and the consequential application of the Guides required which ought be referred to by the Medical Panel in undertaking its assessment.

18 I reserved my decision on the admission of the Affidavit and it exhibits, in particular Professor Malham's medical report, though observing that it would be a rare exception that new material not before the primary decision‑maker would be admitted in a judicial review proceeding. I observed that in the light of the detailed description of the surgery performed and recorded in the Post‑Operative Note, I doubted that it was necessary for the Court to rely on an explanation by a third party medical witness for me to determine the application given the grounds relied upon.

19 There was no objection to the acceptance by the Court of the second exhibit to the Affidavit, which comprised the extract of medical definitions. I do accept the second exhibit annexed to the Affidavit which provided the definitions may be admitted and taken into account.

20 I have considered that the preliminary view I expressed is correct and I will decline to admit the medical report. Whilst the terms of the report explain in more detail the processes involved in the surgery performed, the author was not involved in the surgery and has expressed his opinion sometime later and based on the Post‑Operative Note (and no doubt his own expertise). Professor Malham's medical report was not before the primary decision‑maker but the Post‑Operative Note was. The Post‑Operative Note when read, and where necessary with the aid of the medical dictionary definitions, renders Professor Malham's medical report, in effect, superfluous.

21 Separately, as I observed at the hearing, the timing of the objection was discourteous and as such was behaviour of itself not consistent with the principles of the Civil Procedure Act. The submission by the First Defendant that the Plaintiff ought to have followed the correct procedure under the Civil Procedure Act loses its potency when the complaint of procedural failure is raised at the last moment and without any indication of prejudice or explanation as to why the objection had not been raised at an earlier time.

22 Both the principles and procedures set out in the Civil Procedure Act ought be followed.

23 Given that the evidence to support the Plaintiff's case about the injury is able to be demonstrated through documents which were before the Medical Panel, it is unnecessary to rely on the medical report in the Affidavit and as a consequence this issue is a distraction rather than an issue of materiality.

24 Pursuant to section 28LE of the Act, a person is not entitled to recover damages for non‑economic loss in any injury claim unless the person has suffered a 'significant injury'.

25 'Significant injury' is defined by section 28LF as an injury determined by an approved medical practitioner or medical panel as an injury satisfying the 'threshold level'.

26 Section 28LB(c) defined the 'threshold level', in the case of a spinal injury, as being impairment of 5% or more. Pursuant to section 28LH(1) of the Act, the assessment of degree of impairment is to take place in accordance with the Guides.

27 Section 28LWE(1) of the Act entitles a respondent to refer a 'medical question' to a medical panel for determination, upon the receipt of a certificate of assessment from an approved medical practitioner, where a claimant's injury constitutes a 'significant injury' when assessed pursuant to the Guides.

injury means personal or bodily injury and includes -

(a) pre-natal injury; and

(b) psychological or psychiatric injury; and

(c) disease; and

(d) aggravation, acceleration or recurrence of an injury or disease ...

...

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 ...

Identification of injury and process of assessment

29 In order for a medical panel to answer the 'medical question' referred to it, a panel must first identify the injury claimed by a plaintiff to have been caused by the fault of the defendant.[5]

30 A medical panel is required to make an assessment of the impairment and a proper medical evaluation of the consequences of the injury arising from the incident.

31 As observed by her Honour Forbes J in Latchford v Gibbons,[6] 'in order to correctly apply the Guides, the panel must first identify the injuries that require assessment.'

32 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 materially affects its decision.[7]

33 A relevant consideration may be one which is expressly specified in the legislation and if not expressly specified in the legislation, then it must be one which is implied from its subject matter, scope and purpose.

34 In determining whether the administrative decision‑maker has failed to take into account a relevant consideration, the Court must bear in mind the limits of the role of the Court in reviewing the decision of the primary administrative decision‑maker. It is not the function of the Court to substitute its own decision for that of the decision‑maker.

35 There is a distinction between a mandatory relevant consideration and the factual matters which are or may be relevant to that consideration. In Chang v Neill ('Chang'),[8] the Court of Appeal observed that a relevant consideration is 'usually expressed at a significantly higher level of generality than a factual matter'.[9]

36 There is a distinction to be drawn between the failure to take into account one source of information and in considering a relevant consideration. The example given by the Court of Appeal in Chang illustrates this distinction:

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.[10]

37 Further, the Court of Appeal concluded its analysis with following remarks:

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 MZY TS, 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.[11]

38 The Court of Appeal approved the statement of Robertson J in Minister for Immigration and Citizenship v SZRKT,[12] observing that it was consistent with the principles expressed by Forrest J in Karabinis[13] that:

Merely to ignore 'relevant material' does not establish jurisdictional error. This is consistent with proper limits on judicial review so that fact‑finding is a matter for the Tribunal of fact. While the Court is concerned with whether the Tribunal has acted so as to warrant the conclusion that it was not performing the task conferred on it by the legislation.[14]

39 In Victorian WorkCover Authority v Putrus,[15] the Court of Appeal observed that it was well settled that a medical panel will commit jurisdictional error if it fails to give genuine consideration to matters which it is required by statute to consider and that consideration could have materially affected its decision, or if it fails to give genuine consideration to fundamental issues raised by the facts of the case.

40 The Court said that a medical panel examining a worker in accordance with the provisions of the Act is required to consider:

(a) the medical questions referred to the panel;

(b) the submissions of the parties (if provided);

(c) the document provided by the parties specifying the alleged injury and the agreed facts and disputed facts;

(d) the documents relating to the medical questions provided by the parties; and

(e) matters arising out of the panel's medical examination, including the worker's history, evidence as to investigations, tests, studies or the like, and the panel's findings on examination.

41 The Plaintiff submitted that a medical panel is empowered by statute to obtain documents from both the Defendant and the Plaintiff and in the present matter that the Medical Panel was bound to consider the documents referred to it in order to truly determine the issues that arose for its consideration.

42 The Plaintiff claims the Medical Panel's Determination is affected by jurisdictional error, in particular that it:

(a) failed to consider a relevant mandatory consideration being whether the surgery itself was an injury to which the Panel was required to assess any resulting impairment;

(b) failed to take into account a mandatory relevant consideration, namely the Post‑Operative Note in respect of the surgery dated 30 April 2021;

(c) failed to perform an impairment assessment in accordance with the Guides and thus failed to perform its statutory task pursuant to section 28LH and/or section 28LZG(1) of the Act; and

(d) failed to properly determine the medical question referred to it, and thus failed to perform its statutory task pursuant to sections 28LZG(2) or (4) of the Act.

43 The Plaintiff acknowledged that the Medical Panel correctly identified that, in accordance with Chua v Lowthian ('Chua'),[16] it must identify an injury potentially caused in the manner alleged in the claim.

44 The Medical Panel, after referring to the submissions of the parties, stated that:

We concluded that Mr Wilkinson is suffering from complaints and symptoms of the lumbar spine without radiculopathy, surgically treated, potentially cause in the manner alleged in the claim.[17]

45 The Plaintiff submitted that on a plain reading this suggests that the Medical Panel understood that it was assessing a lumbar spine injury which had been surgically treated.

46 There is no reference anywhere in the Determination to the surgery itself being an 'injury' requiring the Medical Panel's assessment.

47 In his Statement of Claim, the Plaintiff plainly alleges the surgery performed on him under the care of the First Defendant should never have been performed. As such, the surgery itself is not surgery for an injury or condition as the Panel described it. Rather, it was of itself an 'injury' that required assessment by the Medical Panel.

48 The procedures performed on the Plaintiff during the surgery, namely a laminotomy (making a hole in the lamina and removing a piece of the lamina bone), facetectomy (the removal of one or both facet joints of a vertebra), and discectomy (the removal of a portion of an intervertebral disc), each involved the surgical cutting and removing of bone or cartilage in the spine. The Plaintiff submitted these constituted intra‑operative or iatrogenic 'fractures' of the spine within the meaning of Chapter Three.

Failure to take into account the Post-Operative Note in respect of the surgery dated 30 April 2021

49 Allied to this ground is the allegation that the Medical Panel failed to take into account the Post‑Operative Note in respect of the surgery dated 30 April 2021. This was submitted by the Plaintiff to be a failure to take into account a mandatory relevant consideration.

Failure to perform an impairment assessment in accordance with the Guides

We consider that there is no other medical condition or impairment, attributable to the alleged spinal injuries, when assessed in accordance with the Guides.[18]

51 The Medical Panel recorded that the use of the 'Range of Motion Model was inappropriate as Mr Wilkinson's impairment could be adequately assessed using the Diagnosis Related Estimates Model (the DRE model).'[19]

52 In respect of its assessment, the Medical Panel stated that:

We assess the appropriate whole person impairment for Mr Wilkinson's lumbar spine in accordance with Tables 70 and 72 of Chapter Three and concluded that Mr Wilkinson has complaints or symptoms of the lumbosacral spine, with no significant clinical findings and no muscle spasm, guarding, dysmetria or radiculopathy. We found no documentable neurological impairment.[20]

53 The Medical Panel concluded 'that the degree of whole person impairment resulting from the spinal injury to Mr Wilkinson alleged in the claim is permanent, but is not 5% or more and therefore does not satisfy the threshold level prescribed by section 28LB of the Act, as amended.'[21]

54 The Plaintiff submitted that, alternatively to failing to properly identify the surgery as an injury requiring its assessment, the Medical Panel failed to perform an impairment assessment in accordance with the Guides and thus failed to perform its statutory task pursuant to section 28LH and/or section 28LZG(1) of the Act. The Panel misapplied the Guides, and in particular failed to apply Structural Inclusion (2) of DRE Lumbosacral Category II.

55 Structural Inclusion (2) of DRE Lumbosacral Category II includes:

posterior element fracture without dislocation (not developmental spondylolysis); the fracture is healed, and there is no loss of motion segment integrity.[22]

56 The Guides elsewhere defines a 'posterior element' as including the lamina[23] and that such a fracture of the lamina equates to a 5% whole person impairment, which satisfies the threshold level provided for in the Act for spinal injuries.[24]

57 It was submitted that alternatively to the above, if, after applying the 'Specific Procedures and Directions', the Medical Panel had applied Table 75 within the Range of Motion Model, this would result in a determination of:

(a) a fracture of a posterior element in the lumbar spine which equates to a 5% whole person impairment under Table 75; or

(b) a single level decompression of the lumbar spine without spinal fusion and without residual signs or symptoms which equates to an 8% whole person impairment under Table 75.

Failed to perform its statutory task pursuant to sections 28 LZG(2) or (4) of the Act

58 Consequently, in the circumstances, the Medical Panel having failed to properly identify the surgery as being an injury requiring its assessment, it failed to answer the medical question that had been referred to it and/or failed to have regard to mandatory relevant considerations.

59 Alternatively, it was required to apply the Guides and in particular it failed to apply Structural Inclusion (2) of DRE Lumbosacral Category II.

60 The Medical Panel failed to perform the statutory function and the effect of that failure was to deprive the Plaintiff of a finding that the degree of whole person impairment resulting from his injury satisfied the relevant threshold level.

61 The First Defendant's position was that the Medical Panel:

(a) appropriately performed its statutory function by assessing the Plaintiff's impairment in relation to the injury, as described, including by reference to the relevant surgery; and

(b) appropriately applied the Guides in the exercise of its expertise following an in‑person examination of the Plaintiff.

62 It was further submitted that, in circumstances where the Medical Panel considered the Plaintiff's physical examination was essentially normal, any error is not material and there would be no utility in the Court quashing the determination and remitting the medical question.

63 The First Defendant observed that the Certificate of Assessment of Dr Rosenberg dated 7 August 2024, which certified that Dr Rosenberg was satisfied that the degree of impairment arising from the Plaintiff's lumbar spine injury satisfied the threshold level, had been assessed by Dr Rosenberg by video conference and not in person.

64 The First Defendant noted the related report of Dr Rosenberg dated 13 May 2024 did not refer to spinal fractures but assessed the Plaintiff as having 10% whole person impairment on the basis of symptoms, suggestive of ongoing radiculopathy, together with small percentages for impacts on activities for daily living and residual symptoms.[25]

65 The First Defendant noted that in the Medical Panel's Reasons, it sets out the pleading of the injury in the Statement of Claim, combining paragraphs 12 and 16 and referring specifically to surgery performed by the First Defendant. The Medical Panel set out the relevant history, including the relevant surgery performed on 30 April 2021.[26]

66 As also noted by the Plaintiff, the Medical Panel correctly stated that in accordance with Chau,[27] the Medical Panel was required to identify an injury potentially caused in the manner alleged in the claim. It then proceeded to refer to the submissions of each party and specifically noted the Plaintiff claimed he had 'sustained injuries to his lower back ('the injury') secondary to a failure to warn the claimant and/or performance of inappropriate spinal surgery by the respondent'.[28]

67 On page 8 of the Determination, the Medical Panel concluded its description of the relevant injury stating that:

Mr Wilkinson is suffering from complaints and symptoms of the lumbar spine without radiculopathy, surgically treated, potentially cause in the manner alleged in the claim.[29]

68 The First Defendant submitted that, read fairly, as a whole, and in context, this description includes the relevant injury within the identified injury. It would require an eye keenly attuned to the perception of error to consider that the surgery consistently referred to by the Medical Panel lies outside this description and thus that constitutes a legal error in the performance of the Medical Panel's statutory duty.

69 The First Defendant also observed that the description in the Plaintiff's own submission to the Medical Panel said that the injury sustained was secondary to performance of inappropriate surgery, and the Plaintiff's description of the injury in the Statement of Claim did not list the surgery as among the particulars of injury. Irrespective of this, the Medical Panel combined the surgery with the particulars in its description of the claim so that in describing the injury, as 'complaints and symptoms of the spine without radiculopathy, surgically treated' the Medical Panel effectively included the surgery within its description of the injury that was potentially caused in the manner alleged in the claim that is was assessing.

70 Consequently, the First Defendant submitted that there was no error in the Medical Panel's identification of the surgery as the relevant injury.

Failure to take into account the Post-Operative Note

71 The Defendant agreed with the elements of the legal framework as set out by the Plaintiff in its outline of submissions.[30]

72 However, in applying the principles, it argued that:

(a) There was no evidence that the Medical Panel did not have regard to the Post‑Operative Note. The First Defendant argued that the opening paragraph of the Reasons describes that the Plaintiff underwent a right sided L5/S1 discectomy and rhizolysis which is consistent with the content of the Post‑Operative Note without ascribing the specific source.

(b) There was no legal duty on the Medical Panel to make specific reference to all of the evidence it had regard to in its reasoning. Consistent with its approach, the Medical Panel's reasons ought not be overzealously considered with an eye to error.

73 Even if it were considered that the Medical Panel failed to consider the Post‑Operative Note, there is still no reason to consider that the note raised or sheds new light on a significant or fundamental issue that was not already in the contemplation of the Medical Panel. The Medical Panel was clearly aware of the surgery on 30 April 2021 and its role in the presentation of the Plaintiff.

74 The First Defendant drew a parallel with the circumstances of Omerasevic v Kotzman,[31] that the failure to make reference in its determination to one document contained in the material did not amount to jurisdictional error.

Assessment in accordance with the relevant Guides

75 The First Defendant rejected the submission that the Medical Panel did not conduct an impairment assessment in accordance with the Guides as required by section 28LH of the Act.

76 Rather, the Medical Panel assessed the Plaintiff's impairment using the DRE Model (also known as the Injury Model) and Tables 70 and 72 of Chapter Three of the Guides.

77 The Medical Panel did not make any reference to the direction contained in Chapter Three of the Guides that surgery to treat an impairment does not modify the original impairment estimate.[32] This is said by the First Defendant to be because a direction does not apply whether the surgery is (or a component of) the injury giving rise to the impairment to be assessed. This is consistent with the Medical Panel having treated the surgery as part of the injury.

78 The First Defendant disagreed with the proposition that it was a necessary corollary of the Medical Panel treating the surgery as an injury that the procedures undertaken on 30 April 2021 would have constituted 'fractures' of the spine, with particular consequences for the assessment under the Guides. It was submitted that this would be to ask the Court to subvert the function of the expert panel and to make a finding or accept a finding of a matter of clinical judgement that is not within the province of the Court.

79 Further, the First Defendant submitted that the DRE Model under the Guides emphasises the use of clinical findings at consultation to differentiate the relevant estimates, and quoted from the Guides as follows:

The Injury Model relies especially on evidence of neurologic deficits and uncommon adverse structural changes such as fractures, dislocations and loss of motion segment integrity. Under this model, DREs are differentiated according to clinical findings that are verifiable using standard medical procedures.[33]

80 Against this background, the Defendants submitted that the Court should not embark on considering an alternative assessment based on clinical signs and symptoms not observed by the Medical Panel, citing as an example of this as the correct approach taken in Bhelley v Coles Supermarkets Australia Pty Ltd.[34]

81 Finally, it was submitted that there was no apparent evidence before the Medical Panel and the Court that the procedures performed on 30 April 2021 necessarily involve intraoperative or iatrogenic 'fractures' of the spine within the meaning of the Guides as submitted by the Plaintiff.

Failure to perform its statutory task pursuant to sections 28LZG(2) or (4) of the Act

82 The First Defendant submitted that the Guides mandate that under the DRE Model the estimates of impairment are differentiated according to clinical findings that are verifiable using standard medical procedures. This is what occurred here and after a number of references to normal findings, the Medical Panel concluded its chain of reasoning with their assessment of the impairment of the lumbar sacral spine based on the physical examination performed on 17 December 2024 which was essentially normal.

83 This was an appropriate medical assessment of the impairment in the manner prescribed by the Guides and the degree of impairment found by the Medical Panel was below the threshold.

84 The First Defendant submitted that the medical expertise the Medical Panel brought to bear in their task was based on the material before it which included the knowledge that Plaintiff had undergone surgery on 30 April 2021.

85 The First Defendant concluded by submitting that, given the essentially normal physical findings, there would be no utility in quashing the Determination and remitting the Determination based on essentially a technical error, such as how the injury was described or whether particular evidence is referred to in the Medial Panel's Reasons.

86 The first task in the Medical Panel's analysis is to identify the 'injury' to be assessed.

87 The description given of the injury at the outset of the Determination conveys to the reader that the injury the Medical Panel is assessing for the purpose of the proceeding is an underlying injury rather than the 'injury' as alleged in the Statement of Claim, being the surgery itself and its consequences.

88 Whilst the Medical Panel correctly identified that their task was to identify the injury consistent with the authority of Chua, I am not persuaded that is what they proceeded to do. The Determination conveys the identification of a pre‑existing injury which was surgically treated. The Medical Panel said that:

We concluded that Mr Wilkinson is suffering from complaints and symptoms of the lumbar spine without radiculopathy, surgically treated, potentially cause in the manner alleged in the claim. [my emphasis added]

89 This is a fundamental and threshold question which, if in error, clearly amounts to jurisdictional error.

90 I am satisfied that read as a whole (and not an overzealous examination of them or with an eye keenly attuned to error),[35] the assessment undertaken by the Medical Panel was misconceived from the outset.

91 This has the consequential implication that the appropriate assessment under the Guides was not enlivened and, thus, the process of the evidentiary assessment was flawed.

92 Whilst it is (at a stretch) possible to conclude, as the First Defendant asserts, that in reality what the Medical Panel was opining was a conclusion that there was no injury which manifested itself with symptoms attributable to the surgery and as a result of the surgery, this observation is misguided and I am not so persuaded.

93 There is no identification in the Determination of any assessment of the surgery and what it entailed and its consequences. The Medical Panel has considered the Plaintiff's medical history, specifically referring to a number of medical investigations in the seven dot points set out at page 6 under the heading 'Medical Investigations' of the Determination.[36] Tellingly, in my view, there is no mention at all of the report of the surgery itself being the Post‑Operative Note in respect of the surgery dated 30 April 2021. Whist the Medical Panel acknowledge the surgery, it does no more than record the fact of the surgery, without any further elaboration.

94 The consequences are that there is a jurisdictional error at the outset.

95 The implication for the task which the Medical Panel is statutorily required to undertake is that the assessment proceeded along a different course to that which would be applicable or at least required to be considered under the Guides.

96 One of the consequences of apparently not giving consideration to the Post‑Operative Note is the highlighting of the omission to consider exactly what the surgery entailed. In going down this path, the Panel did not apparently turn its mind to a relevant and material matter.

97 A failure to consider a particular or singular document of itself will not amount to jurisdictional error.[37] 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.

98 However, if the document is material and it is clear that if it were taken into consideration a different view may well emerge, it will amount to jurisdictional error. The Post‑Operative Note is a document, in my view, which would fall into the category of being a source of evidence about a particular relevant matter as described by the Court of Appeal in Chang.[38]

99 I accept that it is not necessary to mention or discuss every document which was before the Medical Panel in the Determination. However, the characterisation of the materiality of the document is important.

100 Further, where there is no reference to a material document, it has the consequence of undermining confidence in the assessment undertaken.

101 I am of the view that the Post‑Operative Note is a document of consequence and that the omission to deal with it explicitly undermines the confidence with which I can take the view that the Medical Panel correctly identified the injury.

Jurisdictional error in assessment using Guides correctly

102 If the Medical Panel has made the assessment of the impairment using an incorrect process, there will be reviewable error. It follows from the failure to identify the surgery as the injury and thus the process of assessment which follows will be sent down a path of error.

103 The Medical Panel applied the DRE Model to the Plaintiff's impairment and found that the Plaintiff's condition sat within 'DRE Lumbosacral category 1: Complaints or Symptoms'.[39] The DRE Model is generally preferred according the specific procedures and directions in the Guides.[40] However, while Chapter Three contains a direction to the effect that any changes in signs and symptoms following surgery to treat impairment are to be discounted when using the DRE Model, this direction does not apply in cases where the surgery itself is the injury.

104 As the Statement of Claim alleges that the surgery ought not to have been performed, the surgery was not a surgery for an injury or condition as the Panel described it, rather it was the 'injury' that required assessment by the Panel.

105 The procedures performed on the Plaintiff involved cutting and removal of bone and/or cartilage in the spine. I accept that these are capable of being considered intraoperative or iatrogenic fractures of the spine within the meaning of Chapter Three of the Guides.

106 Moreover, Structural Inclusion (2) of DRE Lumbosacral Category II is defined as 'includes a posterior element fracture without dislocation (not developmental spondylolysis); the fracture is healed, and there is no loss of motion segment integrity'.[41]

107 Considered as a fracture of the lamina, the consequence is that the procedure undertaken as part of the wrongful surgery as claimed by the Plaintiff is an injury which, when you apply the correct interpretation of the Guides, results in a 5% whole person impairment.

108 I also accept if the Medical Panel, after applying 'Specific Procedures and Directions', had applied Table 75 within the Range of Motion Model, the Medical Panel would have been forced to consider that a fracture of the posterior element (pedicle, lamina, articular process, transverse process) in the lumbar spine equates to 5% whole person impairment under Table 75, or a single level decompression of the lumbar spine without spinal fusion and without residual signs or symptoms would equate to 8% whole person impairment under Table 75.

109 Consequently, given the Panel's failure to correctly identify the 'injury' as the surgery, it has failed to answer the medical question referred to it.

110 Additionally, given this error, the consequence is that it has misapplied the Guides and failed to consider or apply Structural Inclusion (2) of the DRE Lumbosacral Category II.

111 The jurisdictional failure to identify the injury correctly is material. I reject the submission of the First Defendant that the outcome of the medical assessment would not be any different if remitted based on the Panel's recorded finding that the Plaintiff was essentially presenting as 'normal' based on the physical examination conducted by the Medical Panel on 17 December 2024.

112 The approach taken to the injury was flawed from the outset. The error in the process cannot be separated from the outcome.

113 Having formed the view that there is jurisdictional error and that a different approach to the identification of the injury may well have led to a different assessment outcome, I am satisfied that the appropriate course is to quash the Determination and remit the medical question.

114 I am also satisfied that the medical question ought be remitted to a differently constituted medical panel to ensure fairness to all parties.

ASSOCIATE PROFESSOR PETER GIBBONS AS THE CONVENOR OF MEDICAL PANELS

[1] Court Book (filed in S ECI 2025 02228, Supreme Court of Victoria) 1030 ('CB').

[4] Wrongs Act 1958 (Vic) s 28LB (definition of 'A.M.A. Guides'); s 28LWE.

[5] Summers v Director of Housing & Ors [2012] VSC 395 (Dixon J).

[6] [2021] VSC 229, [50] (Forbes J).

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

[8] [2019] VSCA 151 ('Chang').

[12] [2013] FCA 317; (2013) 212 FCR 99.

[13] Karabinis v Bendrups [2017] VSC 648.

[15] [2023] VSCA 28, [37], [41].

[16] [2011] VSC 468 ('Chau v Lowthian').

[22] Whittlesea City Council v Mohammed [2019] VSCA 18, [12].

[23] Note, the posterior elements are the pedicle, lamina, articular process, and transverse process.

[24] The Wrongs Act 1958 (Vic) s 28LB.

[31] [2016] VSC 383, [105].

[34] [2022] VSC 446 at [72]-[73].

[35] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6.