Plaintiff v First Defendant

2 The plaintiff underwent surgery on 20 December 2010 to remove a lump on the right side of his neck. He has commenced proceedings in the County Court of Victoria against the fifth defendant, claiming that he suffered loss and damage as a result of his surgeon's negligence in carrying out this procedure.

3 The question referred by the fifth defendant to the Panel on 14 March 2019 pursuant to s 28LWE of the Wrongs Act 1958 (the Act) was as follows:

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

4 The Panel interviewed and examined the plaintiff on 7 June 2019.

5 The Panel was statutorily required to make its determination by 6 July 2019.[2] The Panel sought extensions of time on 2 and 22 July 2019. Neither request was consented to by the plaintiff.

6 The Panel made its determination on 3 August 2019, finding that the plaintiff's whole person impairment resulting from the alleged physical injury did not meet the threshold level.

7 The plaintiff commenced this proceeding on 4 October 2019, seeking an order that the Panel's determination be quashed and the question be remitted to a differently constituted medical panel. The plaintiff challenged the determination on the grounds that the Panel had:

1. failed to comply with the time limit prescribed by s 28LZG(3)(a)(i) of the Act;
2. failed to assess impairment in accordance with Part VBA of the Act;
3. failed to take into account a relevant consideration; and
4. denied him procedural fairness.

8 The fifth defendant accepted that the Panel had failed to comply with the statutory time limit imposed by the Act, per the first ground. The parties both submitted that this constituted a jurisdictional error and that the Panel's determination should be quashed.

9 At the hearing, the fifth defendant also conceded that the Panel had denied the plaintiff procedural fairness as alleged in the fourth ground.

10 The particulars of the fourth ground were as follows:

(a) The Panel did not, prior to making the determination, advise the Plaintiff or his legal representatives of the following:

(i) that it had attributed the Plaintiff's symptoms of numbness of the lower third of the right side of the face and lip numbness to a lesion of the maxillary and mandibular branches of the trigeminal nerve;

(ii) that it had attributed the Plaintiff's symptoms of difficulty chewing to a lesion of the mandibular branch of the trigeminal nerve;

(iii) the Panel's opinions that the aforementioned signs and symptoms arising from lesions of the maxillary and mandibular branches of the trigeminal nerve:

(A) were not anatomically and physiologically consistent with the procedure undertaken the subject of the referral;

(B) constituted evidence of impairment from unrelated injuries or causes (which the Panel did not identify) and which it considered was to be disregarded from its determination of the medical question in accordance with section 28LL(3) of the Act.

The plaintiff submitted that the Panel was obliged to provide him with a reasonable opportunity to address it on these matters.

11 The principal controversy at the hearing was whether the question answered by the Panel should be remitted to the same or a differently constituted medical panel.

12 In relation to the first ground conceded by the fifth defendant, the Panel's failure to comply with s 28LZG(3) of the Act amounts to a jurisdictional error. Pursuant to s 28LZG(3)(a)(i) of the Act, the Panel was required to give its determination or certificate within 30 days of the examination of the plaintiff. The Panel met with the plaintiff on 7 June 2019. It was therefore required to give its determination by 6 July 2019. There was no valid extension of this time period and the determination was not made until 3 August 2019.

13 It is clear from the authorities, specifically the decision of Kaye J (as he then was) in Mikhman v Royal Victorian Aero Club[3] and a number of subsequent decisions of this Court which have followed his Honour's judgment, that non-compliance with the time period specified in s 28LZG(3)(a) of the Act invalidates a medical panel's determination.[4] I am satisfied that the Panel's determination should be quashed on this basis.

14 As to the plaintiff's fourth ground conceded by the fifth defendant, the Panel's diagnosis of the plaintiff's injury to his trigeminal nerve or its branches differed to that contained in the medical report provided to the Panel. The Panel ultimately determined that this injury was unrelated to the plaintiff's surgery.

15 I accept that there was nothing in the material provided to the Panel which gave the plaintiff requisite notice that he would need to be in a position to address contentions that some of his symptoms were caused by injuries unrelated to the surgery. The Panel relied on its own medical expertise to form this opinion and the diagnosis was a central matter to the determination of the medical question.[5] As such, procedural fairness mandated that the Panel provide the plaintiff with a reasonable opportunity to address it on this issue.[6] Its failure to do so was a breach of natural justice.[7]

16 For the above reasons, I was satisfied that there are reasonable grounds to invalidate the Panel's determination. I will now consider whether the question referred to the Panel should be remitted to the same or a differently constituted medical panel.

17 The plaintiff submitted that the nature of the above errors were a sufficient reason to remit the question to a differently constituted medical panel. It was submitted that the Panel had made a finding on an issue which the plaintiff had not been consulted about and that this could not be undone. For that reason, remitting the question to the Panel would either be unfair, or give the appearance of unfairness, to the plaintiff.

18 In support of his submission, the plaintiff referred to the decision of Pagone J in Davidson v Fish,[8] where his Honour observed:[9]

A frequently cited authority for [the course of remitting the question to a differently constituted panel] is the decision of Ormiston J in Body Corporate Strata Plan No. 4166 v Stirling Properties Ltd (No. 2) where his Honour said, in relation to reasons which were held to be partly defective, that an order compelling the delivery of further and better reasons "would have an air of unreality about it. Such an order would merely give a tribunal an opportunity to patch up what has been shown to be defective in circumstances where it is more than likely that the tribunal overlooked the issue altogether."

This dicta has been followed in a number of cases over 20 years although it is important that his Honour's dicta should not be taken out of context...The "unreality" referred to by his Honour is that necessarily implicit in an exercise of requiring a decision maker to give reasons in circumstances where it was found, or was likely, that its decision had not taken into account a matter...The "patch up" his Honour warned against was the undesirable exercise, in that context, of seeking to have a decision maker explain how its conclusion might be reached by taking into account a matter which, on the hypothesis of the example, is supposed to have been entirely "overlooked". In other words, that it is undesirable for the Court to order the giving of reasons for a decision where it is likely that some matter had not been taken into account: in that case justice requires that the matter be looked at afresh.

...In Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal Davies and Foster JJ dealt with the appropriate orders to be made when remitting a decision for rehearing and said:

If a decision has been set aside for error and remitted for hearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing.

19 The fifth defendant submitted that, even if the plaintiff had established all of its grounds of review, their combined effect would not warrant the remittal of the question to a new panel.

20 The fifth defendant referred to the judgment of Kyrou J (as his Honour then was) in Vegco Pty Ltd v Gibbons:[10]

If orders are made by this Court as a matter of course requiring decisions to be remade by a differently constituted primary decision-maker, this may have serious resourcing implications for primary decision-makers and add to the costs and delays of the decision-making process. For the Court to be persuaded to order remittal to a differently constituted primary decision-maker, good reason for doing so, based on established principles, must be shown by the party seeking such an order. The guiding principle is that remittal will be to a differently constituted primary decision-maker where there is some feature of the conduct or reasons for decision of the primary decision-maker which would render it unfair to the successful party or give the appearance of unfairness to that party (whether arising from strongly expressed views on key issues, adverse findings on the credit of witnesses, apprehended bias or otherwise) if the matter was remitted to the same decision-maker or where it would be impracticable for the same primary decision-maker to redetermine the matter.

21 The fifth defendant submitted that, in this case, there were no strongly expressed views by the Panel on key issues, or adverse findings as to the credit of witnesses. There was also no suggestion of apprehended bias.

22 The fifth defendant also submitted that it was open to the Court to infer that the Panel had intended to provide the plaintiff with procedural fairness given that the letter that they had sent to the fifth defendant on 2 July 2019 contained the words 'CC Slater & Gordon'. It submitted that this demonstrated that the Panel had tried to meet its obligations. It would therefore not be unfair, nor give rise to the appearance of unfairness, for the question to be remitted to the Panel. If the question was remitted to the Panel and it failed to properly consider the further materials provided to it by the plaintiff, the plaintiff would be entitled to bring a further judicial review proceeding.

23 The fifth defendant also submitted that the large volume of materials before Panel militated against remitting the question to a differently constituted panel.

24 The fifth defendant referred to the judgment of J Forrest J in Toyota Motor Corporation Australia Ltd v Bendrups,[11] where his Honour quashed a determination of a medical panel because it had denied procedural fairness to the parties, but remitted the matter to the Convenor of Medical Panels with a recommendation that it be determined by the original panel. His Honour explained that:[12]

...whilst I have concluded that the Panel erred in not alerting Toyota to the issue of Ms Landy's use of opioid medication and its effect on her work capacity, this is not the type of decision in which there might be a 'patch up' of reasons on remitter. As I mentioned earlier, it is patent that the Panel went about its task diligently and with regard to the issues it was required to determine.

Moreover, this is not a case in which the Panel has expressed itself in terms which would disqualify it from further deliberation on the issues. There is, in my view, no prospect of a remitter giving rise to unfairness or the appearance of unfairness.

The fifth defendant sought to draw a parallel between that case and the present one, submitting that there would be no risk of a 'patch up' of reasons. The Panel had been diligent. It had requested extensions of time to make its determination, although the plaintiff's solicitor did not receive either of those requests. Neither had it expressed itself in terms which would disqualify it from further deliberation on the issues.

25 Finally, the fifth defendant referred to the decision of Riordan J in Omerasevic v Kotzman,[13] where his Honour stated:[14]

I have considered the form of relief and, in particular, whether the matter should be remitted to a different medical panel. An order for remittal to another medical panel requires that good reason for doing so be established. Good reason can arise from strongly expressed views, adverse findings as to credit or apprehended bias. In this case, there is no suggestion of the 'error' being caused by any fault of the Medical Panel and, in my opinion, remittal to another medical panel would be unnecessary and result in the incurring of additional costs.

The fifth defendant submitted that, in this case, there was no fault on the part of the Panel itself. The importance of not unduly burdening the medical panel system was also submitted to have been brought into sharper relief due to the current restrictions imposed in response to the coronavirus pandemic.

26 In reply, the plaintiff submitted that, given the last-minute requests for extensions of time, the Panel could not be considered to have been diligent. The plaintiff also submitted that the Panel conveyed a strongly expressed view on a key issue by finding that the surgery did not cause the plaintiff's injury, and that this was a basis to exclude the surgery from its consideration of the plaintiff's degree of impairment.

27 As J Forrest J observed in Bendrups,[15] where a medical panel is found to have erred, 'there is no universal rule' as to whether the matter should be remitted to the original panel, a differently constituted panel, or the Convenor of Medical Panels, with or without a recommendation as to which panel should reconsider the matter.[16] As Pagone J stated in Davidson v Fish:[17]

[t]he relief that is appropriate in any particular case must "depend on all the circumstances of the case" and I do not think it desirable for any fixed rule to be developed in substitution for a careful evaluation of all the facts of each case.

28 In determining the present matter, I have been guided by the principle that a matter should be remitted to a differently constituted decision-maker where there is some feature of the conduct or reasons of the primary decision-maker which would render it unfair to the successful party, or give the appearance of unfairness to that party, if the matter was remitted to the same decision-maker.[18] Two cases shed some light on when the remittal of a question to a panel which has previously denied procedural fairness to the successful party may give rise to unfairness, or the appearance of unfairness.

29 In Bendrups,[19] the questions put to the medical panel, and the panel's answers, were as follows:[20]

Question 1 What is the nature of the plaintiff's current medical condition, if any, relevant to any injury to her lower back ('the said injury')?

Answer: In the Panel's opinion the Plaintiff is suffering from Chronic Pain Syndrome following a (now resolved) soft tissue injury of the back in the setting of degenerative changes of the lumbosacral spine and from a consequent chronic adjustment disorder with depressive and anxiety features as well as adverse symptoms of opioid use, relevant to the said injury.

Question 2 What is the extent to which any medical condition of the plaintiff:

(a) results from, or is it [sic] materially contributed to by;

(b) resulted from, or was materially contributed to by,

the said injury?

Answer: In the Panel's opinion the Plaintiff's current medical conditions of a Chronic Pain Syndrome following a (now resolved) soft tissue injury of the back in the setting of degenerative changes of the lumbosacral spine and her chronic adjustment disorder with depressive and anxiety features and adverse symptoms of opioid use, resulted from, still result from and were and are still materially contributed to by the said injury.

30 It was common ground between the parties in that case that, while medical reports provided to the panel referenced the worker's intermittent use of opioid medication and symptoms that are commonly associated with use of opioid medication, none of the medical reports identified the use of the opioid medication as bearing upon the worker's inability to work in either the past or the future.[21] Neither did the submissions filed by the parties identify the use of opioid medication as bearing upon the worker's work capacity.[22] The panel did not give notice to the parties that it intended to rely on the worker's past or present use of opioid medications in reaching its conclusions as to past or future incapacity.[23]

31 It is evident from the panel's answers, however, that the worker's use of opioid medication was only one feature of the worker's circumstances that led the panel to determine that the worker did not have a current work capacity. It was not the only feature, and it may not have even been a crucial feature. It is, therefore, perhaps unsurprising that J Forrest J found that it was 'not a case in which the Panel ha[d] expressed itself in terms which would disqualify it from further deliberation on the issues', and that remitting the matter to the same panel would not give rise to the appearance of unfairness to the plaintiff.[24]

32 In Pearce v Lloyd,[25] Cavanough J quashed a determination of a medical panel and remitted the matter to a differently constituted panel. His Honour found that the original panel had denied the plaintiff procedural fairness.[26] The panel ought to have advised the plaintiff that it considered that his claimed injury may have resolved, and sought comment from him, before making a final determination that the injury had resolved and the plaintiff had a current work capacity.[27] The finding that the injury had resolved was crucial in the panel's determination that the plaintiff was not suffering from any injury that would detract from his work capacity. His Honour considered that remitting the matter to the original panel would give rise to an appearance of unfairness to the plaintiff because the original panel had denied the plaintiff procedural fairness and expressed its conclusions in strong terms.[28]

33 In the present case, the Panel has made a clear and unambiguous finding that the plaintiff's symptoms linked to a lesion of the nerves are 'unrelated' to the surgery. The Panel, in its reasons, stated:

While the Panel noted Mr Santo's history that he has no unrelated injuries or problems in relation to his face either prior to or since the procedure that occurred on 20 December 2010, in the Panel's opinion, based upon its collective knowledge, experience and expertise, the signs and symptoms attributable referrable [sic] to the lesion of the maxillary (sensory) and mandibular (sensory and motor) branches of the trigeminal nerve...are not anatomically and physiologically consistent with the procedure undertaken the subject of the referral. In the Panel's opinion, therefore, this anatomical and physiological inconsistency is evidence of impairment from unrelated injuries or causes and which are therefore to be disregarded in accordance with Section 28LL(3) of the Act.

34 Contrary to the submissions of the fifth defendant, in this passage, the Panel can be seen to have expressed its views in strong terms. The Panel unequivocally dismissed the possibility that the symptoms linked to the lesion were related to the surgery. It also rejected the assessment put forward by one of the impairment assessors. The Panel's finding that the symptoms were unrelated to the surgery was crucial to its assessment of the plaintiff's impairment because it allowed the Panel to disregard those symptoms. This issue was central to the controversy; it effectively determined whether the plaintiff would succeed or fail in his action.

35 These features are significantly different to the circumstances before the Court in Bendrups,[29] where the panel's impugned finding was only part of the basis for its determination. In the present case, if the matter was remitted to the Panel, it appears inevitable that the Panel would request submissions from the plaintiff regarding the possibility that the symptoms linked to the lesion are unrelated to the procedure. Of course, the Panel has already decided once before, and adversely to the plaintiff, that, in fact, the symptoms linked to the lesion were unrelated to the procedure. In those circumstances, I consider that a third party would have serious reservations about whether the Panel could objectively turn its mind to the plaintiff's new material. There would be the appearance of pre-judgment in relation to the central controversy before the Panel.

36 I also do not consider that the materials before the Panel were so voluminous as to militate against remitting the question to a differently constituted panel. While I am conscious that the coronavirus pandemic has disrupted the ordinary functioning of many aspects of society, those difficulties in the context of the medical panel system do not outweigh the importance of ensuring fairness, and the appearance of fairness, in administrative decision-making.

37 For these reasons, it is appropriate that the question be remitted to a differently constituted panel.

[1] The second to fourth defendants informed the Court that they did not intend to appear, but would submit to any orders that were made.

[2] Wrongs Act 1958 s 28LZG(3)(a)(i).

[3] [2012] VSC 42, [30], [38].

[4] See also Ryan v The Grange at Wodonga Pty Ltd and Ors [2015] VSCA 17, [35]-[36] (Neave JA, Santamaria JA and Ginnane AJA agreeing); Holloway v Department of Human Services [2015] VSC 184, [10]; Wentworth v Bass Coast Regional Health [2017] VSC 403, [29].

[5] Barrett Burston Malting Co Pty Ltd v Kotzman & Ors [2013] VSC 248, [34].

[6] North v Homolka [2014] VSC 478, [104].

[7] Vegco Pty Ltd v Gibbons & Ors [2008] VSC 363, [23].

[8] [2008] VSC 32.

[10] [2008] VSC 363, [33].

[11] [2016] VSC 718 ('Bendrups').

[13] [2016] VSC 383.

[17] [2008] VSC 32, [17].

[18] Vegco Pty Ltd v Gibbons [2008] VSC 383, [33].

[25] [2016] VSC 806

[28] [2016] VSC 806, [74].