Plaintiff v First Defendant

1 Up until March 2017, CD[1] was a relatively fit and healthy man of 61. He could perform full-time work. A keen golfer, he played frequently, and off an impressive handicap of only five. He enjoyed an active sex life. Sadly, however, all of that was about to change, and dramatically so.

2 In the early hours of 11 March 2017, CD found that he was unable to urinate. He managed to get himself into a taxi and head for the Emergency Department of Sale Hospital. After a urethral catheterisation, he was sent home with a catheter bag strapped to his leg. But, within a few hours, he awoke in pain. There was no urine in the bag, only blood. He had the same inability to pass urine he had suffered only hours earlier. So, he returned to the hospital. There, repeated unsuccessful attempts were made to insert increasingly larger catheters into CD's urethra. CD suffered great pain and distress in the process.

3 Some hours after this ordeal began, a doctor successfully inserted a suprapubic catheter. But CD was by that stage suffering from septicaemia. In severe pain, he was transferred to Casey Hospital in Berwick, where he spent a week. He spent a further two weeks at home convalescing with a visiting hospital service.

4 Three months later, CD underwent prostate surgery.

5 CD seeks to bring an action for damages against the hospital claiming economic and non-economic loss. He claims that the catheterisations caused him permanent erectile dysfunction and urinary incontinence. He has tried but cannot have sex because of his impotence. Once a man enjoying a full and vital life, he is now so apprehensive about wetting himself in public that he avoids social interactions and no longer plays sport. His working life is over. He also claims to suffer from post-traumatic stress disorder as a result of his dreadful experience.

6 The hospital appears to accept that CD is in a bad way. But it claims that his afflictions are the result of his pre-existing bladder and prostate problems and the prostate surgery he underwent three months later.

7 Part VBA of the Wrongs Act 1958 (Vic) provides that, in order for a person to bring an action for damages for non-economic loss, he or she must have suffered "significant injury" within the meaning of the Act. An injury is significant where the impairment resulting from it satisfies the threshold level set by the Act. The hospital's solicitors disputed that CD's injuries were significant, and caused a medical panel to be convened to determine that issue.

8 For reasons I shall explain later, the matter ultimately went before a second medical panel. On 20 March 2020, that panel determined that the degrees of physical and psychiatric impairment resulting from CD's injuries did not satisfy the applicable thresholds. That was because it considered that CD's impairments resulted from causes unrelated to the events of 11 March - namely, his pre-existing prostatic afflictions and the prostate surgery.

9 CD now applies to this Court for judicial review of the determinations of the second panel. He argues that the panel's decision is vitiated by jurisdictional error. He seeks orders in the nature of certiorari and mandamus, quashing the decision and remitting the medical questions before it to a differently constituted medical panel for redetermination in accordance with law.

10 I have decided that CD's application must be dismissed. My reasons for that conclusion are very lengthy. The next part of this judgment contains a summary of my reasons for that decision. My more detailed reasons follow in Parts 3 to 12, and my ultimate conclusions and proposed orders may be found in Part 13.

11 Sale Hospital is operated by Central Gippsland Health Service, the first defendant. As I have said, CD was admitted to the hospital on 11 March 2017 when he found himself unable to pass urine. Staff at the hospital drained the contents of his bladder with a suprapubic catheter, but not before numerous unsuccessful attempts were made to catheterise him via his urethra. The process was very painful and unpleasant.

12 By May 2017, CD was suffering from serious urinary symptoms, including incontinence.

13 On 2 June 2017, CD underwent a cystoscopy, followed by a transurethral resection of his prostate ("TURP").

14 While his symptoms appeared initially to improve in the months following the surgery, that did not last. CD has continued to suffer from incontinence and intermittent urinary tract infections.

15 CD also suffers from erectile dysfunction. The question of when he began to suffer from impotence was a matter of some controversy before this Court. CD denies having achieved an erection since attempts were made to catheterise him at the hospital. But he appears to have told some medical practitioners, including some of those on the two medical panels that examined him, that he only began to suffer from erectile dysfunction following his prostate surgery on 2 June. On the other hand, consistently with his position in this Court, he told a branch of the second panel that his erectile dysfunction commenced after the events of 11 March and before the TURP surgery.

16 CD alleges that his ills are the result of negligence by staff at the hospital. Those ills include not only his urinary and sexual problems, but psychiatric injury he asserts consists of PTSD as well as anxiety and depression secondary to his physical symptoms. In 2017, CD instructed solicitors with an eye to bringing an action for damages against the hospital.

17 As I mentioned earlier, Part VBA of the Wrongs Act has the consequence that a person is not entitled to bring an action claiming damages for negligence in respect of non-economic loss as of right. Rather, such a proceeding may be brought only by a person who has suffered "significant injury". The expression "significant injury" is relevantly defined as an injury resulting in a degree of impairment that a medical panel determines satisfies the threshold level prescribed by the Act.

18 On 12 March 2019, a medical panel decided that it was unable to determine whether CD's degree of impairment satisfied the threshold level because his condition had not stabilised - that is, because there was a possibility it might improve with treatment. That conclusion notwithstanding, the panel expressed the view that CD's urogenital system impairment was not the result of the events of 11 March. A time was fixed for further assessment.

19 On 20 March 2020, a second medical panel decided that the degrees of physical and psychiatric impairment resulting from CD's injury did not satisfy the threshold levels. Among the members of the second panel was a urologist who had acted as a consultant to the first panel. The panel's view, in essence, was that CD's physical impairment was not due to the events of 11 March 2017; rather, it was the result of a pre-existing prostate condition and the TURP operation he underwent in June that year. CD's psychiatric impairment, the panel considered, did not result directly from the ordeal of 11 March - he was not suffering from PTSD - but was secondary to his incontinence and erectile dysfunction, and accordingly had to be disregarded in accordance with s 28LJ of the Act. The second panel's decision is the subject of the present application.

20 CD filed his originating motion for judicial review in this Court on 19 May 2020. Oral argument was heard on 19 May 2021. On 21 May, I invited further submissions from the parties, which were filed on 4 June. On 7 September, I invited CD to apply for leave to add a further ground of review. Written submissions from CD and the hospital followed on 23 September and 15 October, respectively, and a further hearing was held on 10 November. Supplementary submissions were received on 17 and 24 November.

21 In summary, CD submitted that the panel's decision was vitiated by jurisdictional error for the following reasons:

a) The panel erred by purporting to determine the cause of CD's incontinence and erectile dysfunction. Its statutory duty was to assess the impairment attributable to those symptoms, and not to enquire into their cause. Alternatively, the panel erred by making that causal determination in the absence of evidence, or on the basis of inadequate evidence.

b) The panel erred by making a judgment about CD's credit in relation to the question whether he had suffered from erectile dysfunction from 11 March 2017 onwards, as opposed to from the time of the prostate operation.

c) The panel erred by failing to have regard to relevant factual material, namely CD's history that he suffered from erectile dysfunction in the period between 11 March and 2 June 2017.

d) The panel erred in its determination as to psychiatric impairment by referring to and relying on findings made by the first panel and dismissing the fact that CD had suffered a life-threatening injury, and by giving inadequate reasons for its conclusion.

e) Despite the argument in paragraph (a), above, the panel constructively failed to exercise its jurisdiction by failing to reach a conclusion as to the medical cause of CD's physical impairment. While this point was not pressed in the end, I shall address it anyway.

f) The panel's decision was attended by an apprehension of bias by reason of the presence on it of the urologist who had acted as a consultant to the first panel. The relevant apprehension was that the urologist had an interest as a "witness" arising by virtue of his being privy to an inconsistent statement CD had purportedly made to the first panel, or that he might have prejudged the question the second panel was tasked with deciding.

22 A summary of my reasons for rejecting each of those complaints follows.

No error in determining CD's impairment unrelated to injury

23 The panel did not err by making a determination as to the cause of CD's incontinence and erectile dysfunction. Nor did it err by doing so in the absence of evidence.

24 CD's argument as to the first point rested on a misconception of the concept of the "injury" the panel was required to assess. 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. The relevant injury in the present case was the injury caused by the catheterisation, and referable to the alleged fault of the hospital. Contrary to the submission of CD, the injury did not consist of CD's incontinence and erectile dysfunction. Indeed, in the context of this matter, incontinence and erectile dysfunction are, properly considered, impairments and not injuries.

25 As to the second point, while a panel's assessment of unrelated impairment must be based on evidence of some sort, it is not the case that its assessment will be reviewable on the basis that the evidence upon which it acted was inadequately cogent. Much less is it the case that a panel must act on "very strong" evidence in disregarding unrelated impairment. And, in any event, there was ample material justifying the panel's conclusion in the present matter.

26 Further, I do not accept CD's related arguments that the panel's decision was speculative because:

a) the decision was based on considerations of his credit;

b) the panel referred to or relied on submissions and on the reasons of the previous panel;

c) the decision was contrary to some of the material before the panel (such as CD's statement that he suffered from erectile dysfunction in the period following 11 March and prior to his prostate operation); and/or

d) the panel failed to make further enquiries before making its decision.

27 Nor do I accept, as CD argued, that the panel's reference to the first panel's reasons and its failure to make further enquiries of themselves constituted errors.

28 CD's argument that the panel erred by making a judgment about his credibility with reference to his statement that he began to experience erectile dysfunction immediately after the incident of 11 March required consideration of two matters. The first was whether a medical panel convened under the Wrongs Act is entitled to make credit judgments. The second was whether the panel in the present case made a credit judgment.

29 Turning to the first point, I reject CD's argument that the panel was not entitled to make a judgment about his credibility. I do not accept that a medical panel is forbidden from making credit judgments simpliciter. Nor do I accept CD's argument that a medical panel may disbelieve a claimant only where the medical evidence before the panel demonstrates beyond all doubt that what the claimant told it is incorrect. I also reject the argument that a panel may only make a judgment about the veracity of a claimant on the question whether he or she is suffering from an impairment at all, in contrast to the question, say, whether his or her impairment is causally related to the potentially compensable injury.

30 As I explain in these reasons, I initially found attractive the proposition that there is a salient difference between a credit judgment based on medical evidence and a panel's medical expertise and one based on, for example, prior inconsistent statements. But I have ultimately decided that according legal significance to any such difference is foreclosed by authority.

31 As to the second point, I consider that, contrary to the submission of the hospital, the panel in the present case did make a judgment about CD's credibility vis-à-vis the onset of his impotence. It made such a judgment in the sense that it did not accept the account CD gave certain of its members on 28 January 2020, albeit it did not make an express finding about the truth of his claim to have suffered from erectile dysfunction from the time of the catheterisation.

32 I do not accept CD's argument that the panel erred by failing to consider the history or histories it is accepted CD gave to the effect that he suffered erectile dysfunction in the period between the catheterisation and the TURP procedure. Nor do I accept his related argument that the panel erred by failing to explain how it resolved the inconsistencies between the histories CD gave various medical practitioners.

33 A failure to consider critically important factual material may in certain circumstances amount to a constructive failure to exercise jurisdiction. However, there is simply no warrant for the assertion that the panel ignored the statements CD made to the effect that he began to experience impotence following the incident of 11 March 2017 and prior to his prostate surgery three months later.

34 CD's argument that the panel erred by failing to explain how it resolved the issue presented by CD's inconsistent statements must also be rejected: the panel was under no obligation to provide reasons.

No error in determination as to psychiatric impairment

35 The panel did not err by dismissing the fact that CD reported thinking he would die whilst in hospital. It did not ignore his statements to that effect - it specifically referred to them in its reasons. And CD's argument that the panel did not give those statements adequate weight invites merits review. Nor is there anything in CD's arguments that the panel erred by referring to the first panel's reasons or by according them too much weight, or by giving inadequate reasons.

No failure to reach conclusion as to medical cause of physical impairment

36 At one point in its reasons, the panel observed that "there is evidence of" unrelated impairment. A little later, it appeared to deny that it was required to make a finding as to whether CD's impotence and incontinence were caused by the catheterisation. The question raised was whether this betrayed a failure by the panel to reach a conclusion as to the medical cause of CD's physical impairment. While the point was provoked by me, I did not understand CD to take it up and press it in the end, presumably because it was thought to be inconsistent with his principal complaint about the panel's approach to unrelated causes of the impairment. Be that as it may, when read as a whole, the reasons make it clear enough that the panel was of the opinion that CD's physical impairment resulted from unrelated causes, namely the pre-existing conditions from which CD suffered and the TURP surgery.

37 Despite initially being attracted by the argument that the panel's decision was vitiated by a reasonable apprehension of bias, upon reflection, I have decided that it was not.

38 No apprehension of bias by way of prejudgment arises in respect of the decision. In essence, I come to that conclusion because the urologist as a result of whose participation the apprehension was said to arise, who it may be inferred had formed a view about the aetiology of CD's impairment prior to his appointment to the second panel, formed that view within the confines of the decision-making process provided for by the Act, presumably after due consideration of the facts. There is no logical connection between the urologist's participation in the second panel's decision and a deviation from the course of decision-making in accordance with the merits.

39 I do not accept CD's argument that an apprehension by reason of interest arises in respect of the second panel's decision, either. While it might be possible to describe the urologist as having effectively been rendered a witness to a factual matter important to the second panel's decision, consideration of the relevant authorities does not suggest that this gave him a disqualifying interest in the proceedings before the panel. Further, that the Act contemplates that successive panels may have members and consultants in common has the consequence that the urologist's knowledge was acquired in the course of the proper performance of his statutory function. I have concluded that the urologist did not have an "interest" in the panel proceedings in the way that expression is understood in the authorities.

40 In any event, I consider that, were the second panel's decision attended by an apprehension of bias, CD would have waived his right to object. CD was notified of the urologist's appointment to the second panel well in advance of its decision. Yet no objection was taken by CD until the proceedings in this Court.

41 On the evening of 10 March 2017, after consuming a healthy amount of beer, CD returned home from a club. At around midnight, he found himself unable to pass urine. CD called himself a cab and was taken to the emergency department of the hospital.

42 In the wee hours of 11 March 2017, a doctor at the hospital catheterised CD with a 14-gauge indwelling urethral catheter, resulting in the drainage of 1.2 litres of rosé-coloured urine. CD was discharged home shortly after 2:00 a.m., the catheter in situ and a bag strapped to his leg. He went to bed.

43 At 6:30 or 7:00 a.m. that morning, pain roused CD from his sleep. He was "busting to go to the toilet". But there was no urine in the bag, only a small amount of blood. CD returned to the hospital, where numerous attempts were made throughout the morning to pass increasingly larger catheters through CD's urethra. Those attempts did not succeed in emptying the patient's bladder. They did, however, result in the discharge of a significant amount of blood. In fact, there was so much blood that CD's bedsheets had to be changed, twice. The ordeal caused CD considerable pain and distress. He recalls thinking he would die.

44 At 12:40 p.m., hospital staff decided to place a suprapubic catheter, which resulted in the release of the contents of CD's distended bladder - more than 800 millilitres of bloody urine - and relief from his unappeasable urge to urinate. Unhappily, however, CD was by that stage septic and febrile. He was transferred to Casey Hospital in Berwick at 3:30 p.m. that afternoon, where he was treated with intravenously administered antibiotics.

45 There CD remained until 17 March when he was discharged into the care of "Hospital in the Home",[2] under whose supervision intravenous antibiotic therapy continued until 30 March. A urethral catheter was substituted for the suprapubic catheter while CD was an inpatient at Casey Hospital. It is unclear on the material before the Court exactly when the urethral catheter was removed, but it appears to have been removed prior to CD's discharge from Hospital in the Home on 30 March.

46 The events of 11 March were not the first time CD was admitted to hospital on account of urinary retention. He previously presented to Sale Hospital's emergency department on 12 September 2016 after failing to pass urine for the two days prior. Hospital staff inserted a urethral catheter which was left in place for a week.

47 The culprit for CD's two episodes of urinary retention was benign prostatic hyperplasia. An ultrasound performed on 15 September 2016 revealed that CD's prostate was moderately enlarged; but it revealed no other significant pathology.

48 His enlarged prostate notwithstanding, CD reports having been able to pass urine adequately in the period between the removal of the urinary catheter and the incident of 11 March 2017. CD's general practitioner, Dr Rakesh Nandha, referred him to a urological surgeon on 7 October 2016. But, on the evidence before this Court, nothing seems to have followed from that referral.

CD undergoes transurethral resection of prostate

49 Following the removal of CD's urethral catheter by Hospital in the Home staff in March 2017, CD's urinary function appears to have become regular, albeit he found himself in need of the toilet more frequently than he had in the past. His urine, for the most part clear, was occasionally tinged with blood. On 5 April 2017, CD complained to Dr Nandha of urinary urgency and dribbling. By 4 May 2017, CD was waking up to four to five times a night to urinate and experiencing urge incontinence.

50 It was in that context that CD was referred to a second urological surgeon, Mr Philip McCahy. On 4 May, Mr McCahy made arrangements for CD to undergo a cystoscopy and, depending upon its results, a TURP procedure.

51 CD underwent both procedures on 2 June 2017. The findings from the cystoscopy will be returned to below. Upon postoperative discharge, CD was noted by Mr McCahy to be "happy with his voiding". When Mr McCahy reviewed him on 19 October that year, CD reported "a little bit of urgency", but said it appeared to be improving.

52 Unfortunately, CD did not continue on the trajectory he appeared to be on in October 2017.

53 CD suffers from unpredictable urge incontinence, day and night. He also experiences stress incontinence when he exerts himself, such as by lifting or playing golf, and when he coughs or sneezes. His affliction forces him to wear disposable incontinence underwear, which he must change frequently. When he urinates, his stream is poor, and he feels as though he has not managed completely to empty his bladder. He continues to dribble thereafter. Intermittent urinary tract infections punctuate his experience.

54 Incontinence has changed CD's life. Once an avid golfer with a single-figure handicap, he no longer plays; he finds needing to change his incontinence underwear every four or five holes embarrassing. Social interaction is a thing to be avoided, and CD spends most of his time at home with his cat. Tyre fitting had been CD's trade, and in the weeks prior to 11 March, he had completed a successful trial as a labourer in a plumbing and tiling business. He is no longer able to work.

55 CD is impotent. His libido remains intact, but sexual arousal does not cause him to experience an erection. Nor does he experience spontaneous erections. Treatment with Viagra and the use of sexually arousing visual materials was ineffective. He has given up pursuing sexual relationships.

56 The progression of CD's urinary symptoms does not appear to be controversial; he appears to have been suffering the afflictions just described from some point between February 2018 and February 2019.

57 The same cannot be said in relation to his erectile function. In his affidavit in support of the present application, CD deposes that he last achieved an erection on 8 March 2017, a date he remembers clearly. But as I have mentioned, CD appears to have told different people different things at different times in that connection. Those inconsistencies assumed some significance in this proceeding.

58 CD experiences depression, feelings of frustration and irritability. He ruminates on the events of 11 March and their consequences. Around once a fortnight, CD awakes in a cold sweat from a nightmare in which he relives his experience at Sale Hospital. Though he initially suffered diurnal intrusive experiences related to the catheterisation, they have since ceased. The fear of experiencing haematuria he previously suffered from also appears to have abated.

59 The physical afflictions from which CD suffers mean he sleeps less. In April 2018, CD complained of an insomnia which deprived him of all but two hours' sleep a night. More recently, CD said he sleeps in two-hour stints, waking up intermittently to use the bathroom. CD's self-esteem has suffered, too. It upsets him that he is unable to lead the lifestyle to which he was previously accustomed. His social withdrawal and abandonment of the pursuit of physical intimacy cause him to feel lonely.

60 Admirably, despite the suffering described, CD told the medical panel that examined him on 21 January 2020 that he was "85 [per cent] better mentally than he was in 2017".

61 At some point in 2017, CD instructed solicitors in this matter.

62 In a draft statement of claim dated 17 October 2018, CD claims damages in respect of injuries he alleges were caused on 11 March by reason of the negligence of the hospital, its servants or agents. The particulars of injury alleged in the draft statement of claim include:

c) permanent loss of sexual function of the penis and inability to raise an erection;

d) PTSD with nightmares, flashbacks, hallucinations, insomnia and generalised anxiety and hyper-arousal;

e) increased anxiety and depression with resultant irritability, broken sleep patterns and lethargy, mood changes and mood swings, and decreased self-esteem.

P****ART 4: WRONGS ACT, PART VBA

No action for damages for non-economic loss as of right

63 Uninstructed in the ways of Part VBA of the Wrongs Act, I suspect many in the community might think that a person in the circumstances in which CD found himself would be entitled to bring an action claiming damages in respect of non-economic loss as of right. But, in this State, the entitlement of an injured person to sue for non-economic loss has been limited by Part VBA; only a person who has suffered "significant injury" may do so.

64 The decision under review here is the determination of a medical panel that CD did not suffer a significant injury. Before turning to that decision, it is necessary to say a little about its statutory context.

65 The requirement that a person have suffered significant injury if he or she is to recover damages for non-economic loss is contained in s 28LE of the Act. That section reads:

28LE Restriction on recovery of damages for non-economic loss

A person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered significant injury.

66 The expression "significant injury" is a term of art defined in s 28LF of the Act, which provides, relevantly:

(1) For the purposes of this Part injury to a person (other than a psychiatric injury) is a significant injury if -

(a) the degree of impairment of the whole person resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(b) a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level; or

(2) For the purposes of this Part psychiatric injury to a person is significant injury if -

(a) the degree of impairment resulting from the injury has been assessed by an approved medical practitioner in accordance with this Part as satisfying the threshold level, unless a Medical Panel has made a determination as to the threshold level under Division 5; or

(b) a Medical Panel has determined under Division 5 that the degree of impairment resulting from the injury satisfies the threshold level.

67 The expression "threshold level" is defined, relevantly, in s 28LB:

(a) in the case of injury (other than psychiatric injury or spinal injury), impairment of more than 5 per cent;

(b) in the case of psychiatric injury, impairment of 10 per cent or more;

68 I note that "impairment" is defined to mean "permanent impairment".[3]

Assessment of impairment under Part VBA

69 As can be seen, the determination of the question whether a person has suffered significant injury will require the assessment of the degree of impairment "resulting from" that person's injury.[4]

70 The principles applicable to an assessment of impairment under Part VBA are contained in Division 3 of that Part. For present purposes, two of the provisions contained in Division 3 are of particular import:

28LJ Regard not to be had to secondary psychiatric or psychological impairment

In assessing a degree of impairment of a person under this Part, regard must not be had to any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to, a physical injury.

28LL Assessment in relation to injuries arising out of the same incident

(1) If a person has more than one impairment resulting from injuries which arose out of the same incident, all of those impairments must be included in the one assessment.

(2) For the purposes of this Part, impairments, other than psychiatric impairments, resulting from injuries which arose out of the same incident are to be assessed together using the combination tables in the A.M.A. Guides or the methods prescribed for the purposes of this Part.

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

71 Physical impairment must be assessed in accordance with the fourth edition of the American Medical Association's Guides to the Evaluation of Permanent Impairment ("the Guides").[5]

72 Psychiatric impairment must be assessed in accordance with The Guide to the Evaluation of Psychiatric Impairment for Clinicians ("the GEPIC").[6]

Impairment assessment by approved medical practitioner

73 A person wishing to recover damages for non-economic loss in respect of an injury must have his or her impairment assessed by an approved medical practitioner in accordance with Part VBA,[7] who must in turn provide the person seeking the assessment with a certificate of assessment.[8] The prescribed form of a certificate of assessment, which may be found in the Wrongs (Part VBA Claims) Regulations 2015 (Vic) ("the Regulations"), is Form 1.[9] Section 28LN(2) of the Wrongs Act provides:

The certificate of assessment must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.

74 A person who receives a certificate of assessment on which he or she intends to rely - a "claimant", in the statutory language[10] - must serve a copy of it on the defendant or prospective defendant, designated in Part VBA as the "respondent".[11] The copy must be accompanied by prescribed information and in the prescribed form, Form 4.[12] Section 28LT(3) of the Act provides that the prescribed information may include information about, inter alia, "the injury" and "the incident out of which the alleged injury arose". The Regulations prescribe that a Form 4 must include that information.[13] Question 7 on the Form 4 reads: "Set out all the injuries you claim you suffered as a result of the incident".[14] The prescribed information also includes "details of any report of the incident on which the claimant intends to rely".[15]

75 Once served with a Form 4 and certificate of assessment, a respondent may either accept the impairment assessment or refer a "medical question" to a medical panel for determination.[16] A respondent who does so must submit to the medical panel a notice in the prescribed form - namely, Form 5 - setting out the medical question and other prescribed information, including a copy of the claimant's Form 4, a copy of any relevant certificate of assessment served on it by the claimant and, if the claimant has provided one, its statement of claim.[17]

76 The expression "medical question" is defined in s 28LB 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[.]

77 I note that the words "alleged in the claim" modify the phrase "injury to the claimant" and not "the degree of impairment".[18]

78 The medical panel must assess the claimant's degree of impairment in accordance with Division 3; that is to say, in accordance with the principles set out earlier.[19] In that way, the function of a medical panel is similar to that of an approved medical practitioner.

79 In exercising its function and powers, a medical panel is not bound by the rules of evidence but may inform itself on any matter relating to a referral in any manner it sees fit.[20]

80 After making its assessment, a medical panel must issue the claimant and the respondent with a determination or a certificate. Sections 28LZG and 28LZGA provide, relevantly:

(2) After making the assessment, the Medical Panel must give the claimant and the respondent -

(a) its determination of the medical question in accordance with subsection (4); or

(b) its certificate, in accordance with subsection (5), that it is unable to determine the medical question but that it is satisfied that the degree of impairment will satisfy the threshold level when the injury has stabilised; or

(c) its certificate that it is unable to determine the medical question and a statement of the time fixed for further assessment of the person under subsection (6).

(4) If, after making the assessment, the Medical Panel determines the degree of impairment, the determination of the medical question must state whether the degree of impairment resulting from the injury satisfies the threshold level but must not state the specific degree of impairment.

(5) If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised, but the Medical Panel is satisfied that the degree of impairment resulting from injury will satisfy the threshold level once the injury has stabilised, the Medical Panel may certify in writing to that effect.

(6) If, after making an assessment, the Medical Panel is unable to determine the medical question because an injury has not stabilised and subsection (5) does not apply, the Medical Panel must in writing -

(a) certify that it is unable to determine the medical question; and

(b) fix a time (not being later than 12 months after the first assessment) for a further assessment of the degree of impairment of the person to be made under this section.

(7) The time fixed under subsection (6) must be the earliest time by which the Medical Panel considers that the injury will have stabilised.

(8) More than one further assessment may be made under this section but each further assessment must be made within the period of 12 months following the first assessment.

(9) A determination of the Medical Panel under subsection (4) must be given in writing and be certified by the Medical Panel.

(10) If the Medical Panel gives a certificate under subsection (5) in relation to an injury, the injury is deemed to be a significant injury.

(1) If a Medical Panel fixes a time for further assessment under s 28LZG, the respondent may by notice in writing to the Medical Panel and the claimant waive the requirement for a further assessment.

(2) The notice must be given within 14 days after the respondent receives the statement of the Medical Panel.

(3) If the respondent waives the requirement for a further assessment under s 28LZG, the respondent is deemed to have accepted, for the purposes of this Part, the assessment in the certificate of assessment served under section 28LT.

(4) If a Medical Panel fixes a time for further assessment under section 28LZG, and at the end of 12 months after the first assessment, the Medical Panel certifies in writing that it is still unable to determine the medical question because an injury has not stabilised, the injury to the person is deemed to be a significant injury.

81 I turn to the decision under review. Before I do so, however, I will say something about the events culminating in that decision, including the decision of the first medical panel, and about the material before the panels.

82 Sometime after CD instructed his solicitors, they arranged to have him examined by two doctors for the purposes of impairment assessment. Dr John Gill, a psychiatrist, provided CD's solicitors with a Form 1 dated 3 May 2018 certifying that the degree of impairment resulting from CD's psychiatric injury was more than ten per cent. Dr James Rowe, an occupational physician, provided CD's solicitors with a Form 1 dated 10 July 2018 certifying that the degree of impairment resulting from CD's physical injury was more than five per cent. Each of those doctors also provided CD's solicitors with reports in which their conclusions were explained. The content of those reports will be returned to below.

83 On 17 October 2018, CD's solicitors served on the hospital a Form 4, together with the reports of Dr Gill and Dr Rowe and the draft statement of claim to which reference was made earlier. It was alleged in the Form 4 that CD had suffered the injuries identified in the draft statement of claim as a result of the negligent treatment he received on 11 March, specifically the "multiple attempts [made] to insert a urethral catheter through the claimant's penis all of which were unsuccessful".

84 On 14 December 2018, by means of a Form 5, the hospital's solicitors referred to a medical panel two medical questions, namely:

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

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

85 On 18 January 2019, the Convenor addressed a letter to CD's solicitors and the hospital's solicitors, informing that CD was to be examined by a medical panel on 21 February 2019.

86 The first medical panel examined CD on 21 February 2019. On 12 March, it issued a certificate pursuant to s 28LZG(2)(c) of the Act, stating that it was unable to determine each of the medical questions, and fixing January 2020 as the time for further assessment of the degree of whole person impairment resulting from the injuries alleged in CD's claim.

87 The wording of the first panel's certificate assumed some relevance in the context of CD's submission, considered below, that the second panel's decision was attended by an apprehension of bias by way of prejudgment. The certificate read, in part:[21]

The Panel is unable to determine the medical question because the physical injury to the claimant alleged in the claim has not stabilised and the Panel is not satisfied that the degree of whole person impairment resulting from the physical injury alleged in the claim will satisfy the threshold level once the injury has stabilised.

Constitution of first panel

88 The first panel comprised Dr Paul Champion de Crespigny, nephrologist, Associate Professor Laurence Cleeve, urologist, and Dr Samari Jayarajah, psychiatrist. A/Prof Cleeve was identified on the certificate and in the written reasons, as well as in the letter of 18 January, as a "consultant" to the panel.

89 Dr Jayarajah examined CD separately from the other two panel members.

90 As will be seen, the constitution of the first panel assumed importance in CD's application.

Reports of specialists, radiology, ultrasound, medical records

91 The first panel had before it the reports of four specialists. The material before the panel also included medical records kept by medical professionals who treated CD which contained, among other things, reports of radiological investigations and an ultrasound.

92 Among the specialists' reports was a report of Mr McCahy dated 22 November 2017. Enclosed with that report were various other reports of his, including reports dated 4 May, 2 June and 19 October of the same year.

93 The report of 4 May, addressed to Dr Nandha, followed CD's referral to Mr McCahy. In the report, Mr McCahy noted that CD was suffering from nocturia and urge incontinence at the time Mr McCahy examined him. He opined that the catheterisation might have caused a false passage or stricture, and accordingly made arrangements for a cystoscopy and possible TURP.

94 Mr McCahy's operation report of 2 June contains, among other things, findings that CD's prostate was enlarged, and that examination of his urethra showed "slight bulbar urethral narrowing" but that it was "otherwise normal".

95 On 19 October, Mr McCahy provided Dr Nandha with a report following his review of CD. In it, he said that CD was "pretty happy" with the result of his operation. He reported that CD was suffering "a little bit of urgency", albeit that it was improving. He forecast that the urgency would continue to improve over the coming months.

96 The report of 22 November 2017, addressed to CD's solicitors, records a history consistent with the reports to which reference has been made above. In it, Mr McCahy had the following to say regarding the aetiology of CD's urinary problems:[22]

At the time [of the examination of 4 May], I felt that [CD] may have sustained a false passage ... due to the traumatic catheterisation and could have developed a stricture. I therefore made arrangements for a general anaesthetic cystoscopy which was performed on 2 June 2017. At that time I noted that he had a moderately enlarged, [benign-feeling] prostate gland. On visualisation of his urethra, I felt that ... there was a slight bulbar urethral narrowing but otherwise no evidence of false passage or stricture.

[CD] suffered from a traumatic catheterisation. This led to bleeding and seems to have been complicated by urinary sepsis. The underlying cause for his problems was benign prostatic hyperplasia.

The incident of the traumatic catheterisation did not contribute to [CD's] urinary problems but may have been responsible for [the] septic episode and the requirement for transfer to the higher acuity hospital for intravenous antibiotics.

97 No reference is made in Mr McCahy's reports to the issue of CD's erectile ability.

98 Dr Gill examined CD on 26 April 2018. His report bears the same date as the Form 1 he provided to CD's solicitors.

99 In his report, Dr Gill recorded the following account of CD in relation to the onset of his afflictions:

[CD] told me that ... since the surgery he has had no sexual function and has not been able to obtain an erection ... He also has unpredictable frequent urinary incontinence which occurs usually on a daily basis.

[CD] said that subsequent to his surgery he has been completely unable to obtain a penile erection, although he has maintained libido. He also suffers unpredictable frequent episodes of urinary incontinence.

101 Dr Gill also referred to Mr McCahy's report of 22 November 2017, and commented that the details of that report appeared to him "fully consistent" with the history CD provided at interview.

102 Turning to the nature of CD's psychiatric injury, in Dr Gill's view, CD had developed PTSD as a direct result of the events of 11 March 2017. At the time Dr Gill examined him, CD was suffering from insomnia and phobic anxiety relating to the prospect of experiencing further urethral bleeding, though his flashbacks had settled. Dr Gill considered that those symptoms, as well as CD's nightmares, general anxiety, irritability and avoidant behaviour, were indicia of PTSD.

103 He also considered that CD had developed secondary depression as a consequence of the sequelae to the catheterisation; that is, he considered that CD had become depressed as a result of his incontinence and erectile dysfunction, which caused him to avoid social interaction and prevented him from playing sport and pursuing sexual relationships.

104 Dr Gill concluded that CD's PTSD had stabilised and that the impairment resulting from that injury satisfied the threshold level.

105 Dr Rowe's report of 10 July 2018 is a model of brevity. Dr Rowe recorded that CD suffered urinary retention on 11 March 2017, that he went to the Sale Hospital and was catheterised, and that he reported he had "been having problems ever since".

106 For reasons which do not appear in the report, Dr Rowe went on to draw the following conclusions:

[CD] has urinary incontinence related to bladder catheterisation that occurred some years ago now.

The contributing factor to his condition is the catheterisation that occurred as a result of that urethral blockage that occurred in 2017; there is no other cause.

107 Curiously, however, Dr Rowe went on to describe CD's injury as "[p]rostatic surgery and consequent [i]ncontinence related to surgery and bladder catheterisation" in the certificate of assessment supplied with the report.

108 The issue of CD's sexual function does not appear in Dr Rowe's report, which records, in passing, that CD "said he does not have a sex life because of his urinary incontinence".

109 Mr Ross Snow provided CD's solicitors with a report dated 18 January 2019. Mr Snow reported that, at the time he examined CD on 19 December of the previous year, he was suffering from urge incontinence, that he had a poor stream and that he was experiencing stress incontinence. In relation to CD's erectile ability, Mr Snow said:

[CD] ... reports that he has lost erectile function since the episode of March 2017. He gets no early morning erections, and intercourse is just not possible. He has tried Viagra without success.

110 Mr Snow had access to and commented on the findings of the cystoscopy conducted by Mr McCahy on 2 June. He noted, consistently with that report, that the cystoscopy revealed narrowing of the bulbar urethra but that there was no evidence of a false passage or stricture. He added, however, that the cystoscopy showed that there was "a bit of scar tissue".[23]

111 In relation to the mechanism of CD's injury, Mr Snow expressed the following view:[24]

[CD] requires urologic assessment now, to identify any local pathology affecting the bladder, prostate or urethra. There may well be treatment options that can help him.

Because he has not been seen by [a] [u]rologist since October of 2017, we don't know what pathology is present within the lower urinary tract, nor do we know if his symptoms can be helped.

[CD] has an injury to the lower urinary tract, but it has not been assessed as to the exact pathology that is present now, and whether anything can be done about it.

The whole sequence of events, beginning with traumatic and failed catheterisation, subsequent septicaemia, and proven leakage of fluid into the retroperitoneal space, that is outside of the urinary tract, as evidenced by a CT scan performed on 15 March 2017, and the associated sepsis, and including the subsequent prostatic surgery, have led to the current situation.

The CT of 15 March 2017 shows extensive retroperitoneal fluid, indicating that there had been some damage and leakage from the urinary tract, and this presumably was related to the instrumentations that had been performed.

It does appear that there was significant instrumentation of the urethra in attempts to place a catheter. Whilst this was happening, [CD] was in a lot of pain, with bleeding, and almost certainly damage was done to the lower urinary tract.

I would therefore conclude that at this point in time [CD's] injuries are not stable, but would qualify as being greater than [five per cent] of whole person impairment, if they are deemed to be permanent.

His situation is unstable until such time as there has been [s]pecialist review with cystoscopy etc.

112 Despite Mr Snow's suggestion, there is no evidence that any further investigations into the mechanism of CD's injury were conducted.[25]

113 The reports of radiological and sonographic investigations before the panel included the following.

114 First, there was a report of an ultrasound of CD's renal tract on 15 September 2016, conducted following his 12 September presentation. The findings of the ultrasound were that CD's prostate was enlarged, with a volume of approximately 64 cubic centimetres. No other abnormalities of the urinary tract were identified.

115 Second, there was a report of a CT scan of CD's abdomen and pelvis on 15 March 2017, conducted after his catheterisation on 11 March. The radiologist reported:

There is extensive stranding from fluid, anterior to the bladder and extending superiorly to the level of the kidneys in the retroperitone[al] space bilaterally. Small foci of gas in the anterior soft tissues and the bladder, presumably from the recent [suprapubic catheter]. In addition, there is a small amount of intraperitoneal fluid, around the liver and spleen.

116 The radiologist opined that the presence of fluid outside the bladder "indicat[ed] a leak from the bladder".

117 Third, there was a report of a CT scan of CD's abdomen and pelvis on 20 April 2017, which revealed a "[m]arkedly enlarged prostate indenting the bladder base" but "[n]o renal calculi or hydronephrosis" and "[n]o wall thickening in collecting system".

118 The first panel gave reasons for its certification that it was unable to determine each of the medical questions.

119 The panel commenced by detailing the history of the 11 March catheterisation and its aftermath. That history included the following report of CD's account of the onset of his erectile dysfunction:

[CD] told the Panel between the failed passage of a urinary catheter and his prostate operation on 2 June 2017, he had no sexual difficulties. He said since his prostate surgery "nothing worked". He said he had no morning erections and he has "never had an erection" since his surgery.

120 Somewhat curiously, it might be thought, in its next breath, the panel stated that CD reported being "happy with Mr McCahy's surgery".

121 In recording CD's history, the panel also noted that CD told it that, "by about 2 June 2017 he was passing urine normally but was told he needed to have a prostate operation" and that his incontinence returned "following his prostate surgery".[26] This caused his "moodiness" to "c[o]me back". It recorded that CD "accepted that incontinence can be part of the surgery he underwent". Social withdrawal consequent on incontinence meant he felt lonely and missed company.

122 The panel said CD "previously had nightmares after the incident which have now resolved", but went on to say that he still had dreams in which he relived the events of 11 March, from which he would awake in a sweat. CD still suffered from anxiety, but no longer feared further urethral bleeding.

123 On the question of CD's physical ailments, the panel accepted that he suffered from urinary frequency and urge incontinence, stress incontinence and erectile dysfunction. It referred to the reports of imaging investigations to which reference was made above and to Mr McCahy's report of 22 November 2017, in particular to his finding on cystoscopy that there was no evidence of a false passage or stricture.

124 In terms of CD's psychiatric afflictions, the panel considered that CD suffered not from PTSD, but from an adjustment disorder with anxiety and depressed mood. Addressing itself to Dr Gill's contrary opinion, the panel noted that almost nine months had expired since Dr Gill's examination of CD. Some of his symptoms had since resolved and, accordingly, a diagnosis of PTSD was no longer warranted. It added that it had arrived at its opinion based on its examination of CD and its "experience and expertise".

125 The panel turned to the assessment of CD's impairment. It began by stating:

The Panel noted that [CD] is to attend a continence clinic on 4 March 2019 for treatment of his urinary incontinence and therefore, as there is the possibility of further treatment which might substantially alter the level of impairment, the Panel considered that [CD's] current urological, pain, sexual dysfunction and psychiatric conditions have not stabilised at this time.[27]

126 It was on that basis that the panel certified it was unable to determine either of the medical questions.

127 In carrying out its impairment assessment, the panel referred to its obligation under s 28LL(3) of the Act to disregard unrelated impairment in making its assessment. In that connection, the panel considered submissions made to it by the hospital. Those submissions drew the panel's attention to the statements Dr Gill's report records CD as having made regarding the onset of his erectile dysfunction and his incontinence (to which reference was made above), as well as to Mr McCahy's opinion that CD's catheterisation did not contribute to his urinary problems. Those matters, it was submitted, furnished a "clear evidentiary basis by which [the panel] could satisfy itself of a pre-existing impairment".[28] The panel went on to say this:

The Panel noted that following the failed passage of his urinary catheter and subsequent treatment over the following few weeks, [CD] was suffering urinary frequency during the day but suffered no incontinence or erectile dysfunction.

The Panel further noted that urological examination which included a urethroscopy and cystoscopy performed on 2 June 2017, following the failed bladder catheterisation on 11 March 2017, did not reveal a false passage or other definite iatrogenic anatomical abnormality.

The Panel is of the opinion that there is evidence [of] impairment from an unrelated injury or cause which is playing a part in his current psychiatric and physical impairment and which the Panel is obliged to disregard in accordance with [s]ection 28LL(3) of the Act.

128 The panel fixed a time for further assessment because, as it explained:

After making the assessments, and disregarding unrelated impairment ... the Panel is unable to determine the medical questions because both the physical and psychiatric injuries to [CD] alleged in the claim are not stable and the Panel is not satisfied that the degree of whole person impairment resulting from the physical and psychiatric injuries will satisfy the threshold levels once [they] have stabilised.

129 In accordance with the first panel's certificate, the second panel examined CD on 21 and 28 January 2020. On 20 March 2020, it issued a certificate of determination answering each of the medical questions in the negative.

Constitution of second panel

130 The members of the second panel are the second through fifth defendants in the application before this Court.

131 For reasons that will become apparent when CD's claim of apprehended bias is considered, it is important to note that, prior to the examinations, on 18 December 2019, the Deputy Convenor sent to the parties' representatives another pro forma letter of the kind sent on 18 January 2019. Amongst other things, that letter stated that A/Prof Cleeve would be one of the doctors on the second panel. The associate professor was not identified in the letter as a consultant to that panel. The letter noted that copies of the first panel's opinion and reasons had been provided to the members of the second panel, and invited the parties to make submissions on "the relevance or content of" those reasons (as well as any other documents provided to the panel).[29]

132 CD was examined by psychiatrists Dr Diane Neill and Dr Chris Grant on 21 January 2020. On 28 January, he was examined by general practitioner Dr Judith Hammond and A/Prof Cleeve.

133 Throughout these reasons, Dr Hammond and A/Prof Cleeve are referred to as "the physical panel" or "the second physical panel". That shorthand expression was used in the reasons of the second panel and in argument, and I adopt it. It should be said that, while convenient, the expression is infelicitous - there was only one second panel, constituted by the second through fifth defendants.

Material before, and reasons of, first panel before second panel

134 The material before the second panel included all the material before the first panel, as well as the certificate and reasons of the first panel. In addition, it included two medical reports authored subsequently to the first panel's decision.

135 At the request of the hospital's solicitors, Associate Professor Andrew Brooks, a urological surgeon, prepared a report dated 7 June 2019 addressing the aetiology of CD's physical injuries. That report was provided to the Convenor of Medical Panels on 17 January 2020.

136 It appears that the hospital's solicitors furnished A/Prof Brooks with various medical documentation relevant to CD's claim for the purposes of the report's preparation. It is unclear on the evidence exactly what A/Prof Brooks was provided with, but it appears as though he had access to the material before the first medical panel. A/Prof Brooks did not physically examine CD.

137 A/Prof Brooks noted Mr McCahy's finding on cystoscopy that there was, in A/Prof Brooks' words, "no evidence of any trauma to the urethra". He stated that patients who present with acute urinary retention often experience significant bleeding upon catheterisation because the retention of urine causes the bladder lining or mucosa to become distended. CD's bleeding was explicable by reference to that phenomenon. A/Prof Brooks added that the reason urethral catheterisation did not work to drain the contents of CD's bladder was because the indwelling catheter was obstructed by blood clots present in his urine. There was, he said, "no evidence to support the claim of permanent damage to the urethra".

138 The presence of fluid in the tissues surrounding the bladder revealed by the CT scan performed on 15 March, A/Prof Brooks opined, resulted from insertion of the suprapubic catheter; there was "no evidence that this had arisen as a result of bladder perforation".[30]

139 Turning to CD's physical afflictions, A/Prof Brooks stated unequivocally that:[31]

The [non-traumatic] insertion of the urethral catheters ... would not be responsible for any urinary incontinence the patient claims.

Repeated catheterisations without any evidence of urethral trauma would not result in erectile dysfunction.

140 Among the questions put to A/Prof Brooks by the hospital's solicitors was a question asking what the most likely cause of each of CD's injuries was. A/Prof Brooks answered as follows:

a) Urge incontinence - CD's urge incontinence was related to his long-standing hyperprostatism and resultant outflow obstruction. That condition "results in changes to the detrusor muscle in the bladder wall", which changes "result in decreased compliance which ... manifest[s] as urgency and urge incontinence". The TURP procedure may resolve urge incontinence, but fails to in approximately 20 per cent of cases.

b) Stress incontinence - Stress incontinence results from "weakness of the sphincteric muscles in the urethra" which, in males, is "invariably ... related to damage to the sphincter". Sphincteral damage "does not occur following routine catheterisation", but may potentially occur following a TURP procedure.

c) Nocturia - Nocturia has multiple potential causes but, in CD's case, was "related to the causes for urgency incontinence".

_d) Erectile dysfunction - _ CD's erectile dysfunction was "not related to his attempts at urethral catheterisation". Erectile dysfunction has various potential causes. Erectile dysfunction is a potential consequence of the TURP procedure, albeit a "relatively rare" one.

141 Dr Nandha provided CD's solicitors with a report on 14 February 2020. It was forwarded to the Convenor on 27 February.

142 Dr Nandha referred briefly to Mr Snow's report, in particular to his observation that the 15 March CT scan revealed that there was fluid in CD's retroperitoneal space. He concluded that CD "must have suffered damage to his urinary tract in the course of the multiple attempts [at] catheterisation", and that "this would account for the bleeding and pain he suffered".

143 Notwithstanding that conclusion, Dr Nandha expressed the following tentative opinion regarding the cause of CD's problems:

The urinary incontinence is a [well-known] complication after a TURP, and the erectile problem/dysfunction is another common problem after having the TURP surgery. In my notes of 19/03/2018, [CD] mentioned having this problem for 4-5 [months] and hence after the TURP surgery, and therefore from my general practice experience, these two problems are more related to the TURP surgery rather than the incident of 11 March 2017.

It may be worth getting an opinion of a [u]rologist with regard to this[.]

144 There is no evidence before me that CD saw a urologist at any time following his examination by Mr Snow 19 December 2017.

145 It will be recalled that the first panel recorded CD as having told it that he experienced no sexual difficulties in the period between 11 March 2017 and the TURP surgery, after which "nothing worked". That version of events is consistent with that recorded in the reports of Dr Gill and Dr Nandha. But it is not consistent with what CD appears to have told Mr Snow, namely that he had been unable to achieve an erection since the episode of March 2017.

146 On 25 February 2020, Ms Robyn Goodwill on behalf of the Convenor wrote to the parties' representatives inviting submissions "or other information" in relation to the history CD was said to have given Dr Hammond and A/Prof Cleeve on 28 January. The letter referred to the account CD gave the first panel of the time of onset of his erectile dysfunction, and continued:

At the time of the subsequent Panel psychiatric assessment on 21 January 2020, [CD] told the Panel that from the time of the TURP, he lost all sexual function, he no longer had spontaneous erections, and there was no benefit from medical treatments such as Viagra.

At the subsequent Panel physical assessment on 28 January 2020, [CD] retracted what he told the previous Panel that he had no sexual difficulty between the time of his failed catheterization on 11 March 2017 and his prostate surgery on 02 June 2017. He told the current Panel that he has suffered from complete sexual dysfunction ... since the incident of 11 March 2017.

147 The letter went on to note the inconsistent histories recorded in the reports of Dr Gill and Mr Snow.

148 Solicitors for CD and those for the hospital made submissions on 10 and 11 March, respectively. Each party made submissions on the proper role of the panel under the Wrongs Act - which are not presently relevant - as well as on the material before the panel and the histories it recorded. In the submissions made on behalf of CD, his solicitors said:

Immediately prior to the failed catheterisation [CD] had a female partner with whom he had a regular sex life. He was fit and well, and had no difficulty obtaining an erection. Indeed, he instructs that he often woke with an erection. He has not had an erection since the failed catheterisation ... After he had recovered sufficiently from the failed catheterisation he and his partner tried to have sex, but he was unable to achieve an erection.

[CD] is adamant that ... [h]e did not tell the previous medical panel that he had "no sexual difficulties between the failed catheterisation and the subsequent prostate operation". The questioning of both previous panels at the time of the examinations on 21 January 2019 and 21 February 2019 in relation to his sexual function were directed at the time subsequent to the prostate operation, and not to the period between the failed catheterisation and that operation ... Nor did he say that to either Dr Gill or Mr Snow. Their questioning of him related only to erectile problems subsequent to his last surgery (the prostate).

150 The hospital's submissions did not address the question whether or not CD had said certain things to certain people. Instead, they drew the panel's attention to:[33]

contemporaneous information in [CD's] medical records regarding the onset of symptoms and the views of Dr [Nandha], [Mr] McCahy and A/Prof Brooks that [CD's] alleged urinary incontinence and erectile dysfunction are not referable to his catheterisation on 11 March 2019 but to treatment of his underlying, pre-existing and unrelated prostate condition.

151 On the day it published its certificate of determination, the second panel gave a written statement of reasons for its answers to each of the medical questions. Those reasons are central to the application before this Court.

152 The panel began by listing the "alleged injuries" in CD's Form 4.

153 The panel's reasons for its determination of the first medical question commence with a history of the claimed physical injuries, beginning with the September 2016 episode of urinary retention and ending with a description of the symptoms CD was suffering at the time the panel examined him on 28 January 2020.

154 In the course of summarising the history of CD's injuries, the panel said:

Although the previous Panel recorded that [CD] said that he had no sexual difficulty between the time of his failed catheterization on 11 March 2017 and his prostate surgery on 02 June 2017, [CD] retracted this statement. He told the current Panel that he has suffered from complete sexual dysfunction, being unable to have or sustain an erection, nor waking with a morning erection, since the incident of 11 March 2017.

155 The panel noted that CD's participation at the continence clinic whose therapies the previous panel thought might improve CD's condition had not proved beneficial. Nor had therapies aimed at his erectile dysfunction, including the administration of Viagra and the use of sexually arousing visual material. CD's urinary and sexual symptoms had remained unchanged for the four to five months prior to 28 January 2020. His condition had stabilised.

156 The panel went on to address the three imaging reports discussed above.[34] In relation to the report of the 15 March CT scan, the panel commented that the leak from the bladder that the radiologist considered the presence of extraperitoneal fluid evidenced was "presumably from the recent suprapubic catheter". The panel considered - contrary to the views of Dr Nandha and Mr Snow - that no additional medical imaging or other investigations were necessary in order for it to assess CD's impairment.

157 In a section headed "Analysis of the Physical Injuries", the panel noted its obligation to identify a potentially compensable injury before proceeding to conduct its impairment assessment.[35] In its next breath, the panel stated that it considered CD was suffering from urinary frequency, urge incontinence, stress incontinence and erectile dysfunction. Contrary to CD's claim that he suffered from permanent damage to the urethra, the panel said that there was "no persisting condition of the urethra arising from the traumatic catheterisation".

158 In the same section, the panel returned to the issue of CD's inconsistent histories:

The Panel noted that in its examination of [CD] on 28 January 2020, he reported having a complete lack of erectile ability from 11 March 2017. The Panel further noted that this history is not concordant with that provided to the previous Panel when assessed in February 2019, nor that provided to the psychiatric panel when it examined [CD] on 21 January 2020. The Panel also noted the history recorded by Dr John Gill in his report prepared on 3 May 2018 ... .

The Panel further noted, however, that the history provided to Mr Ross Snow in his report dated 18 January 2019 is consistent with [CD's] account to the current physical Panel ... .

The Panel considered the submissions on behalf of [CD] ... and the respondent ... with respect to the inconsistencies in history, outlined above.

159 The panel noted the inconsistent histories CD is recorded to have given a third time when detailing the history of his psychiatric injuries.

160 The reasons conclude with a section headed "Physical Impairment Assessment". The panel commenced by stating that it had assessed impairment of CD's bladder and penis using the Guides, and that it did not consider any other assessment was required.

161 The panel referred to its obligation under s 28LL(3) of the Act to disregard impairments from unrelated injuries or causes in making its assessment, and made three observations. First, the panel noted that it was not required to apply the Guides in estimating the extent of impairment pre-existing or post-dating the claimed injuries, but that it was not entitled to speculate; an impairment may be disregarded only if evidence establishes it resulted from an unrelated injury or cause.[36] Second, it pointed out that the obligation under s 28LL(3) required a medical panel to make a determination as to the cause of the impairment.[37] Third, the panel said it was cognisant of the need to draw a distinction between the assessment of legal causation of injury and medical causation of impairment in making the causal determination referred to.[38]

162 Next, the panel noted the report of the 15 September ultrasound conducted in the wake of the September 2016 episode, which showed evidence of a moderately enlarged prostate with a volume of 64 cubic centimetres. It referred to the fact that the 2 June operation report showed no evidence of a false passage or urethral stricture, and to Mr McCahy's opinion that the 11 March catheterisation did not contribute to CD's urinary problems.

163 The panel then expressed its conclusions in the following terms:

[F]ollowing the traumatic catheterisation on 11 March 2017, [CD]:

• [r]equired management with the insertion of a suprapubic catheter with consequent leakage of fluid into the abdominal cavity, causing [CD] to suffer 24 hours of severe lower abdominal and pelvic pain;

• [d]eveloped septicaemia requiring the insertion of a PICC line and the need for intravenous antibiotic therapy both in hospital and with the HITH program over several weeks.

• based on the findings of the cystoscopy performed by Mr McCahy on 2 June 2017, there was no long term damage to the urethra;

• ... the urge incontinence suffered by [CD] subsequent to his bladder obstruction and urinary retention on 11 March 2017 relates to the longer term prostatic hypertrophy and the severity of his bladder obstruction, regardless of the traumatic catheterisation on 11 March 2017. The Panel considered that urge incontinence relates to bladder wall symptoms, rather than to urethral trauma. The Panel considered that [CD's] symptoms of benign prostatic hypertrophy and two episodes of urinary retention secondary to prostatic bladder outlet obstruction ultimately warranted referral and consideration for a prostatectomy, regardless of the episode of traumatic catheterization. The Panel also considers [CD's] symptoms of urinary incontinence and erectile dysfunction following a transurethral resection of his prostate are recognised potential complications of that procedure.

In the Panel's opinion, therefore, there is evidence of impairment from an unrelated injury or cause that is playing a part in [CD's] current urogenital system impairment that the Panel is obliged to disregard in accordance with [s] 28LL(3) of the Act.

The Panel, therefore, disregarded unrelated impairment of the bladder and penis, combined the whole person impairments in accordance with the formula prescribed at page 322 of the Guides, and concluded that the degree of whole person impairment resulting from the physical injury to [CD] alleged in the claim is permanent but is not more than [five per cent] and therefore does not satisfy the threshold level prescribed by [s] 28LB of the Act as amended.

The Panel ... considers that further explanation or detailed reasons of the basis on which it has calculated impairment is prohibited by [s] 28LZG(4) of the Act.

164 The section concludes with the following statement:

The Panel also considered that it is not required to make a finding in relation to the issue of whether or not [CD's] current physical medical conditions which [CD] attributes to the injuries alleged in the claim were caused by the circumstances of the incident, as alleged, that gave rise to the claim but the Panel has assessed impairment arising only from the injuries to [CD] that are potentially compensable, in accordance with the referral.

165 No mention was made in the section to CD's inconsistent accounts regarding the onset of his impotence.

166 The panel commenced its discussion of the second medical question with a history of CD's psychiatric injury and his mental symptoms as at 21 January 2020. In addressing the events of 11 March 2017, the panel said:[39]

[A] ... lady doctor ... attempted to pass a catheter.

He said there was "instant blood". Two nurses were using different sized syringes to extract clots. He thought he was going to die. He said he was in immense pain and was not given any analgesia ... He said the same doctor tried [four] or [five] different catheters, he kept bleeding, and the blood soaked bed sheets had to be changed twice. About 11:30 a.m. he was given some analgesia ...

He said he was very unwell in Casey Hospital with blood poisoning, still in a lot of pain, and still on a lot of analgesia. He said he remembers the pain and remembers thinking still that he would die over that week.

167 CD's psychiatric symptoms as at the date of examination were limited to the following:

a) nightmares the content of which was supplied by the events of 11 March, occurring on a roughly fortnightly basis;

b) a wariness of visiting Sale Hospital, though he had attended since the catheterisation when it was necessary for him to do so; and

c) feeling "down and frustrated" and "depressed" on account of his sexual dysfunction and incontinence, and their effect on his social life - including his abandoning the pursuit of intimate relationships - and on his prior sporting activities.

168 CD was not suffering from diurnal intrusive experiences or intrusive thoughts.[40] His depressed mood never left him feeling hopeless or suicidal. His fear of death abated once he returned home from Casey Hospital, and he had not continued to experience fears of dying.

169 The panel noted that mental state examination did not reveal CD to be "evidently distressed in any way at any time other than being mildly aggrieved about the complications of procedures". His thought content "had mild themes of loss and frustration, and traumatization (nightmares)", but was otherwise normal.

170 Having commenced its analysis of the second medical question by noting the reasons of the first panel, the second panel concluded that CD was suffering from an adjustment disorder with mild anxiety and depressed mood, and added that that diagnosis was in concurrence with that of the previous panel.

171 The panel stated that it conducted a psychiatric impairment assessment in accordance with the GEPIC, in the course of which assessment it was required by virtue of s 28LJ of the Act to disregard any psychiatric impairment secondary to physical injury. It considered that part of CD's psychiatric impairment had arisen secondary to his physical ailments, namely his incontinence and loss of sexual function. The panel concluded that, once secondary psychiatric impairment had been disregarded, the degree of CD's psychiatric impairment did not meet the threshold level of 10 per cent prescribed by s 28LB.

172 On 19 May 2020, CD filed an originating motion for judicial review in Form 5G in this Court, seeking orders in the nature of certiorari and mandamus quashing the decision of the medical panel constituted by the second through fifth defendants and remitting the medical questions to a differently constituted panel for determination.[41] The second through fifth defendants entered submitting appearances.[42]

173 Before turning to address the parties' arguments on review, it is convenient to say something about the somewhat unusual procedural history of this application.

174 The originating motion of 19 May set out eight grounds of review, each of which identified a jurisdictional error allegedly disclosed by the panel's reasons or by the way it went about its statutory task.

175 Written submissions were filed on behalf of CD and the hospital on 22 October and 24 November 2020, respectively. Oral argument was heard on 19 May 2021. Mr Burns appeared for CD, and Ms Spencer for the hospital.

Further submissions: Whether failure to make determination under s 28LL(3)

176 Following oral argument, on 21 May, I invited further submissions via email on the question whether the panel fell into jurisdictional error by failing to make the causal determination s 28LL(3) of the Act requires it to make, and granted CD leave to amend his grounds of review accordingly. Written submissions from both parties and an amended originating motion were filed on 4 June. Neither party sought a further hearing.

Further submissions and hearing: Apprehended bias

177 On 7 September, I caused an email to be sent inviting CD to apply for leave to add a ground of review alleging that the panel's decision was infected by a reasonable apprehension of bias, and requesting submissions from the parties both on the question of leave and the substantive question. CD filed a further amended originating motion and further submissions on 23 September. The hospital provided submissions in response and an affidavit sworn by solicitor Christina David on 15 October, to which were exhibited the letters of 18 January and 18 December 2019.

178 A further hearing was held on 10 November 2021, at which hearing Mr Fleming QC came in to lead Ms Spencer. The parties filed supplementary written submissions on 17 and 24 November.

179 The first iteration of CD's originating motion identifies the grounds of review relied upon in the following terms:

The medical panel fell into jurisdictional error by:

(a) ignoring and/or failing to give proper weight to relevant material, namely [CD's] complaints on examination[;]

(b) taking into account and acting upon extraneous material, namely material relating to an earlier examination by another medical panel including the history and findings of that panel[;]

(c) making a determination that was irrational or illogical in that it, having concluded that [CD] was suffering from "urinary frequency, urge[] and stress incontinence, and erectile dysfunction"[,] then determining that the level of [CD's] physical impairment did not satisfy the threshold level[;]

(d) reaching a mistaken conclusion as to [CD's] level of impairment by wrongly applying [the Guides] as required by [s 28LH] of the Act[;]

(e) failing to properly diagnose and assess [CD's] psychiatric injury resulting from the treatment so as to be able to properly determine his level of impairment from that psychiatric injury[;]

(f) [f]ailing to properly apply and/or utilise [the GEPIC] at all when determining [CD's] level of impairment from psychiatric injury resulting from the treatment[;]

(g) [f]ailing, in the circumstances[,] to request and obtain additional medical investigations including an up-to-date cystoscopy, urethrogram[] and urodynamic study[;]

(h) [f]ailing to have accorded [CD] a fair and proper assessment of his level of impairment under [the Guides] and [the GEPIC] as required by [the Act] and at law.

180 CD's grounds of review are prolix. They were not developed individually in argument. Some of them appear to be alternative ways of characterising the same alleged error. Not all of them appear to articulate legal - as opposed to factual - error. Broadly speaking, CD's arguments were targeted at four aspects of the panel's decision, namely:

a) the panel's purporting to determine whether CD's incontinence and erectile dysfunction were caused by the incident of 11 March 2017;

b) the panel's putative assessment of CD's credibility;

c) the panel's alleged failure to have regard to relevant factual material, namely CD's history that he suffered erectile dysfunction in the period between 11 March and 2 June; and

d) in relation to the second medical question - the panel's referring to and relying on findings made by the first panel, and "dismiss[ing]" the fact that CD had suffered a life-threatening injury.

181 In the interests of clarity and expediency, in what follows, the parties' submissions are dealt with by reference to those four aspects of the way it was said the panel went about its task.

182 Mr Burns appeared to offer two distinct versions of his argument that the panel fell into jurisdictional error by endeavouring to determine the cause of CD's incontinence and erectile dysfunction.

183 First, he argued that the panel's statutory duty was to assess the impairment attributable to the injuries particularised in CD's Form 4 - relevantly, permanent damage to the urethra, urinary incontinence and loss of sexual function - without proceeding to enquire into the cause of those injuries.

184 Second, Mr Burns argued that the panel erred in making the causal determination it did in the particular circumstances of CD's case because the strength - or lack thereof - of the evidence before it as to causation was such as to render that determination speculative. In making that argument, Mr Burns also took issue with the panel's taking into account the previous panel's opinion, its failure to make further enquiries before making its assessment of unrelated impairment, and its failure to take into account or give proper weight to CD's complaints upon examination.

185 Though those arguments were not explicitly offered as alternatives, to the extent that the second argument implies that a medical panel may in certain circumstances determine the cause of a condition a claimant complains of, they cannot both be accepted.

Whether medical panel entitled to make causal determination

186 The first version of CD's argument is simple. A medical panel's task is to take the injuries a claimant alleges to have suffered and to assess the impairment attributable to those injuries using the Guides. It is no part of a panel's task to attempt to determine what caused those injuries.

187 In support of his argument, Mr Burns drew the Court's attention to the second reading of the Wrongs and Other Acts (Law of Negligence) Bill 2003 (Vic). In particular, Mr Burns referred to the Treasurer Mr Brumby's comments in the Legislative Assembly on clause 13 of that Bill, which substituted the current definition of "medical question" found in s 28LB. Prior to the passage of the Wrongs and Other Acts (Law of Negligence) Act 2003 (Vic), s 28LB defined "medical question" in the following terms:

medical question means a question as to the degree of impairment of a person resulting from injury[.]

188 It will be recalled that the Act now defines the expression 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[.]

189 In relation to the substitution of the definition, Mr Brumby said this:[43]

Concern had been expressed that the current wording of the "medical question" under the [A]ct could still require the medical panel to consider issues of causation - that is, to advise on whether particular injuries were caused by the alleged incident that gave rise to the claim. 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 left to the parties or a court to determine.

190 Mr Burns submitted that the passage from Mr Brumby's speech indicated that "the purpose of the panel making a determination was to determine simply whether or not on the basis of the injuries claimed [CD] was over ... the threshold".

191 In his written submissions, Mr Burns argued that the task of a medical panel is "simply [to] identify[] the existence of an injury as alleged, and [to] assess the impairment of the claimant ... as a consequence of that alleged injury".

192 At the hearing, Mr Burns took the Court to the specification of CD's injuries in his Form 4. He said:

And you will see there that ... the injury is specified, and in this case in some detail. Including loss of sexual function and inability to raise an erection ... Now that's on the table well before he goes to the first panel, that that's what he's claiming. We say that the panel should, and is required to, accept those claims, and assess his incapacity in relation to those injuries, the injuries that he claims.

193 The panel erred when it went further and "looked at the cause of that injury", and attributed his injuries to CD's underlying condition and prostatic surgery.

194 Ms Spencer began her submissions in opposition to CD's first argument by referring to the policy of the "gateway" to the recovery of damages for non-economic loss for which Part VBA of the Act provides. The object of Part VBA is to enable a person who has a threshold-satisfying impairment resulting from an injury caused by the fault of another to recover damages for non-economic loss in respect of that injury - i.e., the claimed injury - and to preclude a person who has no such impairment from doing the same. That object would be frustrated if impairment a person suffered in consequence of a cause other than the claimed injury contributed to that person's level of impairment for the purpose of determining his or her entitlement to recover damages in respect of the claimed injury.

195 Accordingly, a panel's task is not to assess impairment "at large". To the contrary, a panel must identify the claimed injury and ensure that its impairment assessment relates to that injury and that injury alone.[44] A panel's failure to do so would result in a "windfall" for the claimant. And that process necessitates an enquiry into the causation of impairment.

196 Unlike Mr Burns, who equated the notion of "injury" in the definition of "medical question" with the injuries particularised in CD's Form 4 - including, relevantly, incontinence and erectile dysfunction - Ms Spencer submitted that the claimed injury in the present case was "the injury caused by the traumatic catheterisation".

197 Ms Spencer then proceeded to consider the relevant provisions of Part VBA which, in her submission, require a panel to determine the cause of a claimant's impairment. Foremost among those provisions is s 28LL(3), which provides that impairments from unrelated injuries or causes are to be disregarded in assessing impairment. Ms Spencer also referred to ss 28LL(1)-(2), 28LN(2), 28LNA(2), 28LZG(4) and 28LZH(1)-(2), all of which refer to impairment or impairments "resulting from" injury or injuries.[45] She submitted that those provisions make it plain that a panel's task involves making causal determinations. A panel must determine whether an impairment results from the claimed injury, or whether it results from an unrelated injury or cause.

198 In response to Mr Burns' submission that the second reading speech should be used as an interpretive aid, Ms Spencer argued that a literal interpretation of s 28LL(3) is consonant with the policy of Part VBA, and that recourse to extrinsic material is unnecessary and inappropriate.[46] She added that the plaintiff in Amendola v Coles Supermarkets Australia Pty Ltd[47] had unsuccessfully relied on Mr Brumby's speech in support of an argument that the proper function of a panel was confined to assessment of the claimant's level of impairment based on the injuries cited in his or her claim. Justice Kaye, cognisant of the speech, went on to remark that s 28LL(3) requires a panel to "make some determination as to the cause of the impairment".[48]

199 Ms Spencer noted that there was a distinction between the question of legal causation of injury - i.e., whether the claimed injury was caused by the negligence of the respondent - and medical causation of impairment. Medical causation is concerned purely with whether an impairment results from the claimed injury or from an unrelated injury or cause. A panel has no business determining matters of legal causation, but must reach a conclusion as to medical causation of impairment.[49]

200 Ms Spencer submitted that a medical panel can go about its statutory duty in one of two ways.[50] First, it can assess the impairments from which a claimant is suffering globally and then quarantine from that assessment any impairment from unrelated injuries or causes. Alternatively, a panel can estimate the extent of impairment resulting from the claimed injury after taking into account and disregarding any unrelated contribution to the claimant's impairment. In assessing CD's impairment, Ms Spencer submitted, the second panel took the former course.

201 Finally, Ms Spencer argued that it was well established that the approach the panel took in assessing CD's impairment was correct. That approach had been endorsed by numerous judges of the Trial Division of this Court[51] and by the Court of Appeal.[52]

202 Grounds (c), (d) and (h) are pertinent to CD's argument.

203 It was not in dispute that, were the function of a medical panel confined to assessing the degree of impairment attributable to the maladies particularised in a claimant's Form 4, then the second panel would have had no choice but to conclude that the impairment resulting from CD's injuries satisfied the threshold level, and with a leg in the air. A complete lack of erectile ability sounds in whole-person impairment of 20 per cent.[53] A bladder disorder of the severity of that from which CD suffers justifies a finding of whole-person impairment of at least 15 per cent.[54] A combined whole-person impairment of at least 32 per cent would result.[55]

204 Accordingly, were CD's argument accepted, a conclusion that the panel's determination that his impairment did not satisfy the threshold level wanted jurisdiction because it was irrational or illogical, or because it misconceived the function the Act conferred on it, would be irresistible. So would a conclusion that the panel fell into jurisdictional error by misapplying the Guides. That is because, to the extent that the Act requires determinations of impairment to be made in accordance with the Guides, the Guides has force of law and, accordingly, an impairment assessment that is not made in accordance with the Guides is without jurisdiction.[56]

205 Both parties agreed - as they must, given the language of the Act - that it is the panel's role to assess the impairment resulting from a claimant's injury. The disagreement about whether or not it is a panel's role to enter into questions of causation is really a disagreement about the nature of the "injury" the panel is required to assess. On Mr Burns' submission, the injury the assessment of which a medical panel is charged with is identical to whatever conditions are particularised by the claimant in his or her Form 4, and a medical panel is confined to determining impairments arising from those conditions. What caused them is not a question for the panel. On Ms Spencer's submission, a claimant's injury must be understood by reference to the event said to have caused it.

206 For the reasons that follow, I accept Ms Spencer's submission that CD's injury is the injury caused by the catheterisation, and that it was properly part of the panel's function to determine whether any impairment from which CD suffered resulted from the catheterisation. Further, and in any event, the "injuries" CD argued the panel failed properly to assess - namely, erectile dysfunction and incontinence - are, properly considered, impairments and not injuries.

207 Section 28LWE provides that a respondent may refer a medical question to a medical panel. Section 28LZG provides that a medical panel may determine that medical question. Section 28LB defines "medical question" as a question as to "whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level". What is the "injury" to which s 28LB refers?

208 Unhelpfully, the statutory notion of "injury" is equivocal. In some contexts, it refers to the "injury caused by the fault of another person" in s 28LE - that is, the "potentially compensable injury".[57] In other contexts - for example, in s 28LL(3) - the expression "injuries" is used to denote physiological changes to a claimant's body. In Georgopoulos v Silaforts Painting, the Court of Appeal said:[58]

[51] As such, "an injury" is a compendious term. Thus, if a worker has both his hands crushed at work he suffers "an injury" within the meaning of the Act, albeit that it may also be possible to describe specific components of injury or "injuries" to particular bones, joints, tendons, nerves, vascular components, skin and nails of each hand.

[52] An injury in this comprehensive sense is commonly described as the "compensable injury" ... and we shall adopt that term. It is the compensable injury which is the starting point for the interpretation of s 134AB.

209 Georgopoulos concerned the interpretation of "injury" in the Accident Compensation Act 1985 (Vic). Section 134AB of that Act is relevantly equivalent to s 28LE of the Act. The Court of Appeal's remarks have been held to apply equally in the present context.[59]

210 "Injury" in the definition of "medical question" means "potentially compensable injury". In Melbourne Health v Lloyd, Pagone J said this:[60]

[5] ... It is fundamental to the exercise of the function and power of the medical panel that it address an injury capable of enlivening the right contemplated by s 28LE. It is not a sufficient discharge of the function or power of the medical panel that it find that a person suffers a condition which would satisfy the threshold level of an injury at large. What is essential to the operation of s 28LE is that a potentially actionable injury satisfies the threshold level. In a case such as the present, what the medical panel needs to do is to evaluate, as best it can, the degree of impairment [referable] to the injury that might be the subject of a claim of damages for non-economic loss.

[7] ... [T]he point of a determination by a medical panel under Part VBA is to enliven the possibility of recovering damages for non-economic loss for some injury "caused by the fault of another person".

211 It stands to reason, then, that the injury a medical panel is required to assess must be identified by reference to the allegedly negligent act said to have caused it. That this is so was explained by Emerton J in Chua v Newman-Morris.[61] That case concerned a claimant with a pre-existing degenerative condition of the tendons in her left foot and ankle who alleged that she had suffered injury as a result of the respondent general practitioner's failure correctly to diagnose her condition and refer her to a specialist in a timely fashion. The respondent had incorrectly diagnosed arthritis and treated the claimant with acupuncture and analgesics. The claimant's claim, in essence, was that the respondent's failures meant that she required a triple fusion arthrodesis of her left ankle which caused her persisting pain and limited her movement, which procedure she would not have had to undergo had her condition been diagnosed properly.

212 The description of the "incident" in the referral material contained a statement to the effect that the respondent ought to have referred the claimant to a specialist at an earlier time and that, as a result of his failure to do so, she had suffered significant injury. The description of the "injury" in the material described the injury as the condition of the claimant's left lower limb requiring triple fusion arthrodesis.

213 The medical panel determined that the degree of impairment resulting from the claimant's injury satisfied the threshold level. In its reasons, the panel expressly rejected the proposition that its task was to restrict its assessment of impairment to that consequential upon the claimant's not being referred to a specialist at an earlier stage. It did so on the basis that doing so would require the panel to disregard any impairment attributable to the claimant's extant degenerative condition and thereby impermissibly to embark on an analysis of causation and liability.

214 In quashing the panel's decision, Emerton J said:[62]

[T]he assessment by a medical panel under Part VBA of the Wrongs Act is carried out in order to enliven an entitlement to claim damages for non-economic loss against a person said to have caused an injury to the person seeking damages. For this purpose, [a claimant has] to describe his injuries by reference to the acts or omissions of the person who allegedly caused them.

215 The task of a medical panel, her Honour explained, is to "assess impairment arising from the injury that occurred as a result of the incident which is the basis for the claim" - i.e., the injury "referable to the fault of another person whose conduct the [claimant] complains of" - and not the injury "at large".[63] In the case before Emerton J, that injury was "the injury suffered by the plaintiff as a result of delay in the treatment and diagnosis of pre-existing dysfunction to the lower left leg and ankle".[64] The panel fell into jurisdictional error when it assessed the claimant's injury "at large", and not the impairment resulting from the injury allegedly caused by the respondent's negligence.[65]

216 It is settled, then, that the medical question requires the panel to assess the injury referable to the fault of another referred to in s 28LE, which injury is properly understood by reference to the incident which allegedly caused it. But, in deference to Mr Burns' well-considered submissions, I will address the argument that a panel is bound to assess the injury as particularised in a claimant's Form 4. The Court in Chua does not appear to have dealt directly with a submission to that effect.

217 It is true that the definition of "medical question" in s 28LB refers to the injury "alleged in the claim". The "claim" to which s 28LB refers is not a claim for damages or a claimant-qua-plaintiff's statement of claim.[66] Rather, the concept of a "claim" is a more nebulous one, the content of which in a given case derives from the prescribed information supplied by the claimant (i.e. the Form 4, including the prescribed information and accompanying documentation), any correspondence with the panel (including submissions), and the history a claimant gives the panel upon examination.[67]

218 The Form 4 will include the claimant's description of injury. But, for the following reasons, that fact does not empower a claimant to determine the injury with whose assessment the panel is tasked, as if by fiat. The first thing to point out is that the prescribed information supplied by a claimant will also include a description of the incident and information about a claimant's medical history. Second, the authorities put Mr Burns' submission - that the way an injury is particularised in a claimant's Form 4 effectively determines a panel's assessment - well beyond the pale. And, finally, s 28LL(3) makes it abundantly clear that matters of causation are within the remit of a panel.

219 I turn to the authorities. Melbourne Health v Lloyd,[68] Western Health v Gallichio,[69] Summers v Director of Housing[70] and Amendola[71] make clear that a panel is not constrained by the way an injury is particularised in a claim.

220 Before those cases are considered, it is necessary to say something about changes that have been made to the statutory scheme with respect to the prescribed information since they were decided. It will be recalled that regulations 8(m) and (n) of the Regulations require a claimant to include a description of the incident and to detail the nature of the injury suffered as a result in its Form 4. Regulation 9(h) requires the respondent to provide a copy of the claimant's Form 4 to the panel. At the time the cases to which I have referred were decided, the Wrongs (Part VBA Claims) Regulations 2005 (Vic) required a claimant to describe the incident and provide the details of the injury suffered as a result of the incident in the prescribed information accompanying a certificate of assessment served on a respondent under s 28LT(1) of the Act.[72] But those regulations tasked the respondent with describing the incident out of which the claimant's injury arose and particularising the nature of that injury in the prescribed information accompanying its referral of a medical question to a medical panel under s 28LZA.[73]

221 Melbourne Health v Lloyd involved a claimant who alleged that she had suffered injury as a result of several doctors' negligent failure properly to diagnose and treat her porphyria, a hereditary condition. That allegation was made in a separate proceeding for damages. Neither of the two certificates of assessment before the panel identified the claimant's injury by reference to acts or omissions of her treating doctors. Further, in its referral to the panel, the respondent described the injury solely in terms of medical conditions and symptoms, including "porphyria", "loss of sensation in the distribution of right radial nerve", "severe headaches" and "bladder control issues". That description largely repeated the description of the injury contained in the letter of complaint the claimant's solicitors had written the respondent.

222 The panel answered the medical question referred to it favourably to the claimant. In its reasons, the panel revealed no attempt to link its assessment of the claimant's impairment with an injury referable to some act or omission of the respondent. The respondent, having itself identified the injury the panel was required to assess, sought judicial review of the panel's decision on the basis that the panel had failed to identify an injury caused by a potential tortfeasor.

223 Justice Pagone quashed the panel's decision.[74] "[T]he point of a determination by a medical panel under Part VBA", his Honour explained, "is to enliven the possibility of recovering damages for non-economic loss for some injury 'caused by the fault of another person'".[75] His Honour concluded in the following terms:[76]

The statutory task of the medical panel is to make a determination of "the medical question" ... The determination it made on this occasion is responsive to the question asked but not productive of an answer capable of enlivening an entitlement to recover damages for [non-economic] loss as [the claimant] seeks to claim. That is because the question which ought to have been asked of the medical panel should have identified the injury as that which arose by, or was at least referable to, the acts or omissions alleged against [the respondent] ... The question for determination by the medical panel will, therefore, need to be reformulated by Melbourne Health.

224 His Honour's remarks make clear that a panel has a statutory duty to assess impairment resulting from a potentially compensable injury, which duty obtains even in circumstances where the referral material does not assist it to discharge that duty.

225 In Western Health v Gallichio, the claimant alleged that she suffered neurocardiogenic syncope and other consequences as a result of surgery performed at the respondent's hospital to insert a pacemaker. The respondent's referral cited the claimant's claim that she "sustained injury following treatment at [the respondent's hospital] in May 2006". But, under the heading "details of the injury", it identified the claimant's injury as "neurocardiogenic syncope". The medical panel took into account the claimant's post-surgical scarring in its impairment assessment, notwithstanding the fact that no mention was made of any such scarring in the referral material.

226 The respondent sought judicial review of the panel's decision, arguing that the panel fell into error when it considered the claimant's scarring. The panel was required to assess the degree of impairment resulting from the injury the subject of the referral, namely neurocardiogenic syncope, and not any other injury. In rejecting that argument, Pagone J said this:[77]

[10] The statutory obligation upon the medical panel was to answer the question referred to it by [the respondent]. The question, as stated above,[78] required a determination of the degree of impairment of Mrs Saliba from the injury on 23 May 2006.

[12] ... The letter from the lawyers for Western Health may have inserted the words "the claimant continues to suffer from neurocardiogenic syncope" as the only words under the heading "details of injury", but it seems to me that what the author intended by doing so was to indicate that the neurocardiogenic syncope was the relevant impairment and that the injury ... was the incident described as the "insertion of a permanent pacemaker at Western Health on 23 May 2006 ... " ...

[13] ... The medical panel's consideration of the "[post-surgical] scarring" is, in my view, to be seen as a consideration by it of the consequences of the incident which was said to have given rise to the neurocardiogenic syncope as the impairment. The referral letter may have been carelessly inaccurate in its description of the injury but, I think, a fair reading of the referral letter on its own or in the context of all of the materials available to the medical panel makes clear that the "neurocardiogenic syncope" was relevantly impairment said to have resulted from the injury occasioned by the insertion of the permanent pacemaker on 23 May 2006.

227 Unlike in Melbourne Health v Lloyd, the panel in Western Health v Gallichio had before it a referral that identified a potentially compensable injury, namely the insertion of a pacemaker. The panel was required to assess the impairment resulting from that injury. Its assessment was not to be limited by the fact that the respondent particularised the injury as a condition causing syncope.

228 Summers v Director of Housing concerned a claimant who claimed to have suffered injury to his back when he fell against the door of his home trying to avoid a passing cyclist. His general practitioner opined that the claimant had suffered infections in his legs and feet consequent on his back injury, which resulted in dependent oedema and rendered him unable to care for his lower limbs.

229 The claimant's injury was described in his prescribed information as "[i]njury to his back, left and right legs". In the respondent's prescribed information, however, the injury was described as "an aggravation of an existing back injury and psychiatric injuries". The claimant's injuries were described in various other ways in the medical reports before the panel (including the report of his general practitioner), his statement of claim, and in correspondence with the panel. The panel neither assessed the impairment resulting from the infections to the claimant's legs nor dismissed them as irrelevant.

230 Justice Dixon quashed the panel's decision on the basis that it had failed to have regard to a relevant consideration. Section 28LL(1) required the panel to include in its assessment impairments resulting from injuries that arose out of the same incident, and the panel had failed to assess the degree of impairment from the infections to the claimant's legs and feet.[79] His Honour should not be taken to have reasoned that the panel was bound to have regard to the infections because they arose or were alleged by the claimant to have arisen out of the incident. Indeed, he made clear that the panel could have dismissed the infections as irrelevant.[80] Rather, Dixon J reasoned that, because a panel is bound to include in its assessment impairments resulting from the injuries that arose out of the incident in respect of which the claim is made, the panel ought to have considered whether the infections arose out of that incident.

231 Apart from with reference to s 28LL, his Honour justified his statement that it was the panel's obligation to "make a proper medical evaluation of the consequences of the injuries arising from the incident" by reference to Chapter 2 of the Guides,[81] which has the force of law,[82] and the fact that the statutory scheme required that a panel be informed about the circumstances of the incident.[83] His Honour confirmed that "descriptions of injuries, symptoms and impairments given by lawyers" may inform, but do not limit, a panel's assessment of impairment.[84]

232 In Amendola, Kaye J held that the fact that the claimant claimed to have injuries to his neck, right shoulder, right elbow and ankles did not mean the panel was required to determine the impairment resulting from those injuries.[85] It was open to the panel to determine that the claimant did not, at the time of its examination of him, "suffer[] from the injury complained of".[86] His Honour justified that position in the following terms:[87]

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.

233 I note that Kaye J did not find that it was open to the panel to determine that the claimant did not suffer an injury in the sense of a potentially compensable injury. The panel had determined that there was "no clinical evidence of persisting injury to the [claimant's] neck, right shoulder, elbow or ankles".[88] His Honour considered that a "persisting injury" was one which was "still extant at the time of [the panel's] examination",[89] and that, by using that expression, the panel "acknowledged that there may have been some temporary or transient injury sustained by the applicant".[90]

234 Plainly, Kaye J was correct to reason in this fashion. It is not the job of a panel to determine whether or not a claimant suffered a potentially compensable injury. That is to say, it is no part of a panel's function to determine "legal causation of injury" - i.e., whether the claimant's injury was caused by the fault of the respondent - as opposed to "medical causation of impairment".[91] A panel must "consider the injury allegedly caused by the tortfeasor and assume that it was caused by the tortfeasor as alleged".[92] By way of illustration, suppose the claimant, a concert pianist, alleges that he sustained an injury to his wrist when he slipped on a banana peel on the floor of the respondent's shop. If a medical panel is unable to elicit any evidence of injury when it examines the respondent and makes a determination to that effect, it does not thereby find that the claimant never slipped on a banana peel and injured his wrist, or that he did not do so as a result of the respondent's negligence. The panel must assume that the claimant suffered a potentially compensable injury. The pianist may well prove to have a compensable injury upon an action for damages for economic loss if he proves that, as a result of injury to his wrist - however transient - he was unable for a time to give performances. But the panel's task is limited to assessing the impairment resulting from the claimant's potentially compensable injury at the time of its assessment.

235 I turn, at last, to s 28LL(3) of the Wrongs Act. That subsection dispels any remaining doubt that a panel is confined to determining the impairment resulting from whatever conditions a claimant particularises in his or her claim.

236 Section 28LL(3) requires a medical panel to disregard any impairment from an unrelated injury or cause. An unrelated injury or cause may arise prior or subsequent to the claimed injury,[93] or it may arise concurrently with it.[94] To "disregard" unrelated impairment means to exclude any such impairment from the assessment so as to ensure that the assessment relates solely to impairment resulting from the potentially compensable injury. Section 28LL(3) does not direct a medical panel to assess current impairment and disregard the fact that that impairment is contributed to by a factor unrelated to the potentially compensable injury.[95]

237 In Alcoa Holdings v Lowthian, J Forrest J said the following regarding the meaning of the expression "unrelated injury or cause":[96]

The definition of "unrelated" in the Oxford English Dictionary 2nd edition is, not unsurprisingly: "not standing in relationship or connexion". Accordingly, an unrelated injury means a separate or discrete injury not connected to the compensable injury - be it to the same part of the body as that affected by the compensable injury or to a separate part.

238 His Honour went on to observe that "the statutory command to the Panel is to evaluate only the impairment related to the compensable injury and to put to one side any impairment produced by non-related injuries or causes".[97] His Honour defined "compensable injury" as the injury the fourth defendant sustained to his lower back on 5 August 2008; that is, he defined it by reference to an incident.[98]

239 Clearly, were the identity of the injury a medical panel is required to assess determined by the claimant's particularisation of it in his or her Form 4 - i.e., if the claimant's particulars defined the potentially compensable injury - then the statutory command to disregard "a separate or discrete injury not connected to the compensable injury" would be otiose. It would have no work to do, other than to remind a panel not to go off on a frolic of its own and start assessing, say, a claimant's injured left leg in circumstances where his or her Form 4 specified an injury to the right leg.

240 With the greatest of respect to William Chester Minor,[99] in this context, more instructive than the Oxford English Dictionary on the meaning of "unrelated" is s 28LL(1) of the Act.[100] Section 28LL is headed "Assessment in relation to injuries arising out of the same incident". Subsection (1) provides that impairments "resulting from injuries which arose out of the same incident must be included in the one assessment". Clearly, the incident to which subsection (1) refers is the incident alleged in the claim. I consider that the expression "injuries which arose out of the same incident" informs the meaning of "unrelated" in subsection (3): injuries are unrelated if they did not arise out of the same incident. A panel cannot determine whether two or more injuries arose out of the same incident without first determining, in respect of each injury, whether that injury arose out of the incident. It follows that s 28LL(3) requires a panel to determine, in relation to a given impairment, whether the injury resulting in it arose out of the incident in respect of which the claim is made. Only if the injury did arise out of that incident will the panel include the impairment resulting from it in its assessment. That is incompatible with the idea that a panel's sole task is to assess impairments from any and all injuries enumerated in a claimant's Form 4.

Erectile dysfunction and incontinence are impairments

241 The other reason Mr Burns' argument cannot be accepted is this. The argument takes as its premises (1) that the panel's task is to assess "impairment resulting from injury", and (2) that erectile dysfunction and incontinence are "injuries", and concludes (3) that the panel's function was limited to assessing the impairment resulting from CD's erectile dysfunction and incontinence. Insofar as "injury" and "impairment" are statutory expressions, what each of those terms means is a question of law. It follows that the fact that a claimant particularises his injury in a certain way cannot turn what is, properly considered, an impairment into an injury.[101] The second premise of Mr Burns' argument cannot be accepted. Erectile dysfunction and incontinence are not injuries; they are impairments.

242 To the extent that the Act requires determinations of impairment to be made in accordance with the Guides, the Guides has the force of law and is a legislative document.[102] And the content of the Guides has been held to inform the interpretation of the statutory expression "impairment".[103] The Guides defines an impairment as "a deviation from normal in a body part or organ system and its functioning", and impairments as "conditions that interfere with an individual's 'activities of daily living'".[104] Consistently with those definitions, the Court of Appeal has drawn a distinction between an injury and the "impairment of a body function which ... may be the basis for concluding that the injury is a serious injury".[105]

243 The definition of impairment alone might be thought to make clear that erectile dysfunction and incontinence are, properly considered, impairments. That conclusion is fortified when regard is had to Chapters 11.3 and 11.5a of the Guides, which deal with impairment of the bladder and the penis, respectively. Chapter 11.3 divides impairment of the bladder into four classes, each of which designates a particular range of impairment of the whole person. Each class is accompanied by an example of a patient in that class. For example, "[a] patient belongs in class 3 [(25-40 per cent whole-person impairment)] when ... there is intermittent dribbling and no voluntary control". The example given is of a man who suffers stress incontinence following prostatic surgery. A person "belongs in Class 4 [(40-60 per cent whole-person impairment)] when there is ... continuous dribbling of urine". The accompanying example is of a man who suffered a spinal injury when he fell from a building which left him with a neurologic deficit and a resultant loss of bladder control.

244 Chapter 11.5a deals with impairment of the penis. It separates impairment into three classes. For instance, a person belongs in Class 3 (20 per cent whole-person impairment) when "no sexual function is possible". Again, those classes are accompanied by examples. One such example describes a patient unable to achieve an erection on account of vascular damage and a consequent insufficiency of blood flow to the organ. Another describes erectile dysfunction consequent on trauma in the form of a fractured pelvis.

245 Chapters 11.3 and 11.5a make clear that impairment is about function, independently of what causes the impairment. What places a particular person in a class is the fact that his bladder or penis, as the case may be, does not function in the way it should. References to underlying pathology or injuries appear only in the examples.

246 The second panel appears to have accepted that CD suffered a "traumatic catheterisation". Not only did it use that expression, but it did not gainsay CD's claim that he suffered urethral trauma in the course of the catheter's insertion. The panel did, however, comment that the leak of fluid from CD's bladder "presumably" resulted from the placement of the suprapubic catheter, and not the urethral catheter. Importantly, whatever the state of affairs might have been at the time proximate to 11 March 2017, the panel concluded that - contrary to CD's claim - there was "no persisting condition of the urethra arising from" the catheterisation. The panel reached that conclusion on the basis of Mr McCahy's 2 June operation report, which the panel considered showed that "there was no long term damage to the urethra". The panel was entitled to conclude as it did.[106]

247 Likewise, the panel was entitled to conclude that CD's erectile dysfunction and incontinence were impairments from unrelated injuries or causes that it was to disregard in making its assessment. The question whether the panel's determination to that effect was speculative will be returned to below. For present purposes, the point is that its determination was a determination of a kind panels are entitled - in fact, required - to make.

248 Before moving on, it is necessary to make two further points.

249 The first relates to the manner in which the panel disregarded the impairment it considered to be unrelated. The panel noted the findings of the 2 June cystoscopy and Mr McCahy's opinion that the incident of 11 March did not contribute to CD's urinary problems. It then said that it considered that CD's urge incontinence was a result of his pre-existing prostate condition, which warranted referral for the TURP procedure, among the recognised complications of which procedure are incontinence and erectile dysfunction. Rather than stopping at that point and concluding that any impairment attributable to CD's incontinence and erectile dysfunction was to be disregarded on the basis that it was unrelated to the catheterisation, the panel proceeded to assess the impairment of CD's urogenital system and then to disregard it as unrelated impairment. As Ms Spencer submitted, it was entitled to take that course.[107]

250 The second relates to the manner in which the panel structured its reasons. The panel, in the section of its reasons headed "Analysis of the Physical Injuries", referred to its obligation to ascertain the existence of a potentially compensable injury and immediately proceeded to state that CD was "suffering from urinary frequency, urge and stress incontinence and erectile dysfunction". Clearly, the panel would have been in error if it intended thereby to imply that CD's incontinence and erectile dysfunction comprised his potentially compensable injury. Nothing was made of this in argument, however. And, in any event, a fair reading of the panel's reasons reveals that it considered that those afflictions were unrelated impairments.

Whether the panel erred in making its causal judgment in the circumstances

251 I turn, then, to Mr Burns' second argument. The thrust of that argument was that the second panel erred because its decision to disregard CD's urogenital system impairment was speculative and not evidence-based.

252 In the course of making his argument that the panel erred in assessing CD's urogenital system impairments as arising from an unrelated cause in the circumstances, Mr Burns submitted that the panel erred when it:

a) took into account the previous panel's opinion; and

b) failed to make further enquiries before making its assessment of unrelated impairment.

253 As will be seen, the extent to which those points were offered as free-standing bases for review - as opposed to subsidiary premises of Mr Burns' argument that the panel's causal determination was speculative - is not clear. In what follows, they are dealt with individually and as part of that argument.

254 Mr Burns submitted that the authorities make clear that a panel requires an "evidentiary base" on which to make a determination that an impairment is unrelated to the claimed injury.[108] He referred to La'Brooy v Jensen,[109] in which Moore J quoted Osborn J in Chua v Lowthian:[110]

[A]ny assessment of pre-existing impairment must be evidence based. It cannot simply be speculative. The Panel must have an evidentiary basis on which it can be positively satisfied of a pre-existing impairment which it then disregards. The Panel is not bound by rules or practices as to evidence, but it must act on the basis of evidence of some sort.

255 Counsel then took things a step further, however, submitting that, where a panel is going to attribute an impairment from which a claimant suffers wholly to an unrelated incident or cause, it should have "very strong evidence". He appeared to suggest that some principle akin to the Briginshaw standard[111] applied to the panel's duty under s 28LL(3), submitting that a panel may make a causal determination which has the effect of denying a claimant common law rights he would otherwise have - a "very significant consequence" - only on the basis of particularly cogent evidence.

256 Mr Burns then addressed the panel's reasons. First, he argued, the panel had not acted on the basis of evidence. Rather, it had been diverted from its task by considerations such as the claimant's credit, the previous panel's opinion and the submissions made by the parties. The panel "relied significantly on submissions", rather than on "the evidence behind the submissions".[112] Mr Burns observed that A/Prof Brooks never examined CD and submitted that his report should be considered in the same manner as a submission to the panel.

257 Second, Mr Burns pointed out that the panel came to the conclusion it did about the cause of CD's impairment "in the face of [his] saying on oath in his affidavit and actually to the physical panel" that he suffered erectile dysfunction in the period between 11 March 2017 and the TURP procedure. Mr Burns also noted Dr Rowe's opinion that CD's impairment was the result of various causes, including his catheterisation. He submitted, wrongly, that Dr Nandha's report did not address what symptoms CD was suffering between the catheterisation and the TURP procedure.

258 Third, Mr Burns submitted that the panel ought to have made further enquiries before reaching its decision. One of the panel's failures, he said, was its failure to "obtain all of the evidence available or that should [have been] available to it before it extinguish[ed]" CD's claim. Referring to Chapters 11.3 and 11.5a of the Guides, he argued that the panel ought to have carried out further medical investigations.[113] In that connection, Mr Burns pointed out that Mr Snow in his report expressed the view that CD required further cystoscopic assessment. He also referred to a passage in CD's affidavit in support of the present application in which he deposed as follows:

I have been told by my treating practitioner that if there has been damage to my urethra then my erectile problems would almost certainly be attributable to that damage rather than being a consequence of the prostate operation, and whether or not that damage has occurred could only be determined by considering the results of further tests, namely a cystoscopy, a urethrogram, and a [urodynamic][114] study.

259 Further, Mr Burns argued that the panel ought to have called before it the doctors who examined CD and made enquiries of them.[115]

260 Ms Spencer did not respond directly to Mr Burns' argument that the second panel's decision fell foul of the principle that a panel's assessment of unrelated impairment cannot be speculative. However, in the context of responding to Mr Burns' submission that the second panel impermissibly determined the first medical question on the basis of a judgment about CD's credit - which I will address later in these reasons - Ms Spencer took the Court through information the panel had available to it, including its findings on examination, the medical imaging studies and the doctors' reports. In relation to the reports, Ms Spencer observed that the majority of the doctors whose reports were before the panel attributed CD's incontinence and erectile dysfunction wholly to the TURP procedure, and that the only ones who did not considered the cause of CD's impairment in a "rolled-up fashion" in the sense that they identified both the catheterisation and the TURP procedure as causes of CD's condition. There was ample evidence justifying the panel's conclusion, then.

261 Addressing Mr Burns' argument that it was incumbent on the panel to obtain more evidence before making its determination, Ms Spencer submitted that the notion that there exists anything like a duty to enquire to which medical panels are subject should be rejected. In doing so, Ms Spencer referred to Chang v Neill,[116] which case she cited as authority for the proposition that whether a panel has enough information to answer a medical question referred to it is a matter for its own professional judgment. The panel in the present case had judged further enquiries unnecessary.

262 In relation specifically to the argument that the panel ought to have requested further medical investigations, Ms Spencer observed that the passages from the Guides to which Mr Burns referred (which discuss tests which can be used to evaluate impairment) are not prescriptive - they do not direct a person applying the Guides to carry out particular investigations - and submitted that it could not be said that the second panel fell into error by failing to apply the Guides in virtue of its decision not to request further investigations.[117] She added that Mr Snow's opinion that a further cystoscopy was appropriate in CD's case was of little consequence. The panel was required to come to its own view; it was not required to act in accordance with Mr Snow's. Likewise, the passage from CD's affidavit upon which Mr Burns sought to rely took his client's case no further: CD's evidence that a doctor had told him he required further tests was of no consequence. Ms Spencer considered it unnecessary formally to object to that passage because it carried so little weight. However, she expressed the view that it was inadmissible hearsay.

263 Finally, Ms Spencer addressed the argument put on behalf of CD that the second panel ought not to have had recourse to the first panel's reasons. She submitted that nothing prevents a medical panel from having regard to a previous panel's findings. The opinion of a previous panel is but one more piece of evidence before a panel that it is entitled to take into account.

264 CD's argument that there was no basis in evidence for the panel's conclusion that his impairment was not attributable to the events of 11 March 2017 does not fall neatly within any of his grounds of review. It might be thought that it falls within Ground (h) insofar as CD would not have been accorded a "proper" assessment of his level of impairment "as required by the Wrongs Act and at law" were it the case that there was no evidence for the panel's conclusion about his impairment's cause. And in circumstances where Ms Spencer did not object to Mr Burns' making the argument at the hearing of 19 May, it is appropriate to consider it.

265 As I understood Mr Burns' submissions at the hearing, the propositions (1) that the panel ought not to have relied on the first panel's opinion and (2) that the panel ought to have made further enquiries were put in support of the submission that the panel's finding regarding unrelated impairment was speculative. However, Ms Spencer responded to them as if they were discrete, stand-alone arguments.

266 Turning first to the proposition that the panel ought not have relied on the previous panel's reasons, CD's Ground (b) alleges that the panel fell into jurisdictional error by taking into account "extraneous material", namely the reasons of the first panel. At the hearing, however, Mr Burns appeared to abandon that ground, albeit he did not do so formally. When asked whether it was the case that a medical panel may not have regard to what a previous panel has said, Mr Burns said that he knew of no authority to that effect and conceded that a panel is entitled to inform itself as it thinks fit.[118]

267 The second proposition, insofar as it relates to the panel's failure to request further medical investigations, also seems to provide the basis for a discrete ground of review in CD's originating motion, namely Ground (g).[119] The proposition that the panel ought to have enquired further might also be caught by Ground (h). That is because a failure by a medical panel to call the doctors who examined a claimant, or to request further medical investigations, might in certain circumstances amount to a constructive failure to carry out its statutory function or be a legally unreasonable exercise of that function. Further, insofar as the panel's putative failure to enquire is constituted by its failure to request further medical investigations which appear in the Guides, one can see how a litigant might conceivably argue that a panel's failure to request those investigations amounts to a failure to conduct its assessment in accordance with the Guides, which, as we have seen, have force of law; and Ms Spencer appears to have apprehended CD's argument in that way. It must be observed that Mr Burns at no point explained how exactly the panel's failure to request additional investigations or to call before it the medical professionals who had examined CD amounted to a jurisdictional error.

268 In the interests of completeness, and in deference to Ms Spencer's submissions, I will consider the two arguments individually and in their capacity as subsidiary premises in CD's argument that the panel's causal attribution was speculative.

Whether the panel's determination was speculative

269 Chua v Lowthian,[120] upon which CD relies in support of his argument that the panel's determination was speculative, concerned the claimant in Chua v Newman-Morris,[121] discussed earlier in these reasons. When Emerton J remitted the claimant's matter to a differently constituted medical panel, that panel determined that it could not disregard the pre-existing condition of the claimant's left foot and ankle because it was not possible to assess that impairment in accordance with the Guides. Justice Osborn, applying the decision of J Forrest J in Alcoa Holdings v Lowthian,[122] which concerned the decision of a medical panel constituted under the Accident Compensation Act, held that s 28LL(3) does not require that unrelated impairment be assessed in accordance with the Guides.[123] The panel in each of those cases was held to have erred when it equated assessment of pre-existing impairment under s 28LL(3) with assessment of pre-existing impairment in accordance with the Guides.[124]

270 But, in each case, the following caveat was added: while a panel need not apply the Guides in disregarding pre-existing impairment, and while a panel is not bound by the rules of evidence, it must act on the basis of evidence of some sort.[125] It was in that context that Osborn J said that 28LL(3) does not require a panel to speculate.[126] I note that his Honour's remarks have been held to apply equally to impairments from subsequent causes.[127]

271 Their Honours' caveat would appear to be a restatement of the principle that a factual finding for which there is no evidence involves an error of law. Indeed, that is how it has subsequently been interpreted in this Court.[128] The principle that a decision-maker who makes a finding of fact for which there is "no evidence"[129] or which is "not open"[130] makes an error of law is well established.[131] That principle will apply to an inference of fact considered against the backdrop of a body of circumstantial evidence,[132] as well as to a finding of primary fact.[133] I note that, in a context where a decision-maker is not bound by the rules of evidence, the expression "evidence" refers generally to any probative material, whether or not it would be admissible in a court.[134]

272 It is in this context that the injunction against speculation must be understood. A tribunal of fact will speculate where it makes a finding in the absence of evidence for that finding.[135] If there is evidence for a finding, a decision-maker does not speculate by making it.

273 The expression "no evidence" means what it says. The ground of review can succeed only where there is not a "skerrick" of evidence,[136] or "a complete absence of evidence",[137] or "no evidentiary basis at all"[138] for the finding challenged. The corollary is that where there is "some evidence, no matter how unconvincing" for a finding, it will not involve legal error.[139] Of course, to say that a finding itself will not involve legal error if it is based on inadequate material is not to say that such a finding might not support an inference that the decision-maker has asked itself the wrong question, at least in circumstances where there are other indicators that it has done so.[140] The question being whether there is any evidence for a finding, a decision-maker will not transgress the "no evidence" rule merely by making an incorrect factual finding, even where the finding is "perverse" or "contrary to the overwhelming weight of the evidence".[141] In that connection, courts are urged to beware of attempts to use the language of "no evidence" to dress up attacks on the merits of factual conclusions as reviewable errors.[142]

274 The principle that evidence must be "probative"[143] or "rationally probative"[144] has been said to have the consequence that it is inaccurate to say that the "no evidence" ground is "restricted to circumstances where there is quite literally, no evidence at all".[145] It might be said that the better view is that material that is not probative is not evidence.[146] As Basten JA said in Amaba Ltd (under New South Wales administered winding up) v Booth:[147]

Implicit in the statement that there is no evidence to "support" a particular finding, is the characterisation of a relationship between the evidence and the finding. It is the same relationship inherent in the concept of "relevance", on which the laws of evidence depend. That relationship depends on a process of reasoning which must be logical or rational. Thus, evidence is relevant which, if accepted, "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding": Evidence Act 1995 (NSW), s 55(1).

275 Arguably, there is no reason why his Honour's remarks should not apply to a decision made by a non-judicial decision-maker.[148] It is clear from the passage from Amaba Ltd that the question whether material is probative is an exercise in logic. This is confirmed by the decision of Deane J in Minister for Immigration and Ethnic Affairs v Pochi.[149] In that case, his Honour said that "findings of material fact of a statutory tribunal must ordinarily be based on logically probative material".[150] Borrowing the words of Diplock LJ, he explained what he meant by that:[151]

The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than that it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined ... It means that he must not spin a coin or consult an astrologer.

276 The question raised by the "no evidence" ground of review is whether there is any evidence to support a finding of fact. Evidence that is not probative of a fact is not evidence in support of a finding that that fact exists. Evidence will be probative of a fact if it renders more likely the existence of that fact. If it does not, it is not evidence for the purposes of the ground of review. If it does, it is evidence for that purpose, and the ground will not be made out.

277 Whether a piece of evidence is rationally probative of a fact must be considered in context.[152] Another parallel may be drawn here with the laws of relevance.[153]

278 The requirement for a rational connection between evidence and a finding does not mean a decision-maker will not transgress the "no evidence" rule where a finding is reached as a result of an illogical inference of fact.[154] It has been said that the "no evidence" ground of review "depends not on the reasoning of the decision-maker, but on a comparison between the material available to the decision-maker and the conclusion reached".[155] That is not to say that a critical finding of fact made by means of an illogical or irrational inference might not render a decision void for legal unreasonableness.[156] But Mr Burns did not argue that the medical panel's decision was unreasonable.

279 The difficulty of making good a submission that there is no evidence to support a finding of fact led Ashley JA to remark that the "'no evidence' bar is set very high".[157] And that is especially so where the decision-maker in respect of whose finding it is alleged that no evidence supports it is entitled to rely upon its own expertise in performing its function. In such a case, it will be more difficult to demonstrate that the finding was not open to it.[158] A medical panel is a decision-maker of that kind.[159] Thus, in Sidiqi v Kotsios,[160] the Court of Appeal said:

It will be difficult to conclude that an opinion was not open to a medical panel if that opinion was materially informed by the expertise of that medical panel. In this case, the Panel was not only an expert panel in the sense that it possessed relevant general medical expertise, but it included specialist medical practitioners holding particular expertise with respect to the matters in issue in this case.

280 Their Honours added: "In a fundamental sense, it is for the Panel itself to determine what information is sufficient to found an opinion with respect to a medical question."[161] Strictly, whether there is any evidence for a finding remains a question for the Court. The point is this. First, a panel's ability to have recourse to its own specialist knowledge may obviate the need to have before it material probative of facts within its knowledge. Second, a panel's specialist knowledge may allow it to draw inferences from material before it which could not be drawn purely as a matter of "logic and general experience".[162] In those ways, a panel's expertise makes it more difficult to argue that a finding it made was not open.

281 I note that, whilst it is uncontroversial that a factual finding in the absence of evidence amounts to an error of law, the question whether such a finding might amount to jurisdictional error is unclear. It has sometimes been suggested that the "no evidence" ground of review is available only in respect of a jurisdictional fact.[163] But courts have often proceeded on the basis that a factual finding for which there is an absence of evidence will amount to jurisdictional error where the finding is a "critical step" in the decision-maker's path of reasoning,[164] or where his or her decision is "based on" that finding.[165] It is not clear how the requirement of criticality intersects with the principle that an error of law will go to jurisdiction only where it is material to the decision under review.[166] The High Court recently declined to comment on the correctness of the latter approach.[167] The controversy over which approach is correct is irrelevant for present purposes because, as shall be seen, there was ample evidence upon which the panel made its finding under s 28LL(3).

Decision of medical panel not reviewable on basis that evidence inadequately cogent

282 Before considering the panel's reasons, it is necessary to address CD's submission that, on account of the significant consequences of the determination of a medical question adversely to a claimant, a panel must have "strong" evidence where it is going to attribute the entirety of a claimant's impairment to an unrelated cause and thereby prohibit him or her from seeking damages for non-economic loss.

283 The substance of that submission will be considered in what follows. But first, I wish to make two points.

284 The first thing that should be said is that it is unclear why the principle whose existence is contended for should apply only in circumstances where a panel is minded to attribute a claimant's level of impairment wholly to an unrelated cause. A determination that, say, five per cent of a claimant's impairment is referable to an unrelated cause might in certain circumstances have the result that a claimant's level of impairment fails to satisfy the threshold level. I will proceed as if the principle had been formulated in such a way that it would apply wherever a causal judgment made by a panel would have the effect of preventing a claimant from recovering damages in respect of non-economic loss.

285 Second, to the extent that the way in which the effect of an adverse medical panel determination is characterised matters to Mr Burns' submission, it is worth pointing out that the Court of Appeal has held that an adverse medical panel decision does not "extinguish rights" that a claimant would otherwise have; rather, the right to sue is limited by the legislation so that only those who have suffered "significant injury" may recover damages in respect of non-economic loss.[168] Compare Mr Burns' submission that an adverse medical panel decision denies a claimant common law rights he would otherwise have. It remains true, however, to say that an adverse panel determination has serious consequences for a claimant who, had the panel determined the medical question favourably to him or her, would have been entitled to sue for non-economic loss.

286 Turning to the substance of the matter, there is an obvious reason why CD's submission should not be accepted. A medical panel is an expert body whose duty it is to form an opinion on the medical question referred to it. This Court has no medical expertise. The idea that it is the task of this Court to enquire into whether the evidence before a medical panel was strong enough to justify its conclusion is, to say the least, unintuitive. And no standard by which the strength of evidence might be measured was offered in argument.

287 CD's submission is not legally justifiable, either. To the extent that Mr Burns intended to submit that the panel was bound to apply the Briginshaw standard, I do not accept that submission. Justice Dixon's observations in that case relate to the civil standard of proof. They are expressed to apply "when the law requires the proof of any fact".[169] Where administrative decision-makers are concerned, notions of onus and standard of proof have, as a general proposition, no application. In FTZK v Minister for Immigration and Border Protection, which concerned an application for judicial review of a decision of the Administrative Appeals Tribunal, Hayne J said:[170]

[T]he relevant decision is to be made ... by an administrative decision maker, not a court. It is, therefore, a decision which is to be made outside the adversarial processes of a court, in which issue is joined between parties. For a common lawyer, the notion of a "standard of proof" marches hand in hand with onus of proof. Neither notion finds ready accommodation in administrative decision making, where no issue is joined between parties.

288 Similar observations have been made elsewhere.[171] An onus of proof applies in adversarial proceedings where one party must bear the risk of failing to persuade the trier of fact.[172] And that onus must be discharged to a particular standard.

289 Statements about the general inapplicability of notions of onus and standard of proof to administrative decision-making may not apply with equal force where an administrative decision-maker adjudicates an adversarial dispute in accordance with the rules of evidence.[173] But a medical panel is not bound by the rules of evidence.[174] Nor is it the function of a panel, on a referral, to adjudicate a dispute between the claimant and the respondent.[175] As the High Court explained in Wingfoot Australia Partners Pty Ltd v Kocak:[176]

The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.

290 Clearly, if a panel's function is not to choose between particular opinions on the question referred to it, no one bears the onus of satisfying the panel that a particular opinion on the medical question is correct. Much less, one might think, does anyone need to do so to a particular standard.

291 One might also question the utility of instructing medical practitioners to form an opinion of a kind they are trained and accustomed to form by reference to a legal construct like the balance of probabilities.

292 Notwithstanding what I have just said, the Court of Appeal recently expressed the view, in obiter, that a medical panel "is not required to arrive at scientific certainty but to arrive at an opinion on the balance of probabilities".[177] However, even if one accepts that a panel is required to form its opinion with reference to the civil standard of proof, CD's argument should be rejected.

293 CD's argument is that a medical panel falls into error where it makes a causal determination adverse to a claimant without strong evidence. But it is clear that, even where a decision-maker is required to make findings in accordance with a particular standard of proof, a finding of fact will not constitute an error of law unless there is no evidence to support it. That is to say, the stringency of the "no evidence" test is the same, regardless of the state of satisfaction a decision-maker must reach.

294 In considering an appeal limited to questions of law from the decision of a judge of the New South Wales Workers' Compensation Commission that a worker's condition was not causally related to his employment, Kirby P said:[178]

The finding of what have been called the primary facts of a case does not, in itself, expose the trial judge to review on a point of law unless it can be shown that there is no evidence of a primary fact and that, this being crucial to his decision, the judge's fact finding has involved an error of law. If there is evidence, or if there are available inferences which compete for the judge's acceptance, no error of law occurs simply because the judge prefers one version of the evidence to another or one set of inferences to another. This is his function ... Even if the evidence is strongly one way, the appeal court may not intervene simply because it reaches a different conclusion and this even if it regards the conclusion of the trial judge as against the weight of the evidence.

295 Indeed, even where a decision-maker is required to be satisfied of a fact beyond reasonable doubt, the question remains whether there is any evidence for that fact. O'Connor v County Court[179] concerned an application for judicial review of the decision of a judge of the County Court to dismiss the plaintiff's appeal de novo against his conviction for an offence against the Road Safety Act 1986 (Vic). The plaintiff argued that it was not open to the judge to be satisfied, beyond reasonable doubt, that the device used to analyse CD's breath was a "breath analysing instrument" within the meaning of that Act. In dismissing the application, Kaye J said:[180]

[37] ... The authorities are replete with the salutary warning that, in an application for certiorari, the court should bear in mind that the proceedings are not an appellate procedure enabling a general judicial review of the findings of fact by the lower court ...

[38] Where, as in this case, the plaintiff seeks to demonstrate an error of law by a lower court, in reaching a factual conclusion, the plaintiff must demonstrate that that finding was not open to the lower court on the evidence before it.

[39] In order to establish that a finding of fact was not open to a lower court, it must be demonstrated that there was no evidence to support that finding. It is not sufficient that this court would not have drawn the conclusion made by the lower court from the evidence before it. Nor is it sufficient that the conclusion of fact, by the lower court, was against the weight of the evidence, or was a conclusion which, in the circumstances, might seem surprising. Rather, ... the critical question is whether the plaintiff has made out that there was no evidence before the lower court, for the conclusion of fact by that court.

296 His Honour's remarks have been applied by this Court in other applications for judicial review of the decisions of inferior courts.[181]

297 Suppose CD did not intend to submit that the principle in Briginshaw literally applies to medical panels, but rather that a principle analogous to that in Briginshaw applies - given the weighty consequences of a determination that a claimant's impairment does not satisfy the threshold level, a panel must act only on material on the basis of which it can be appropriately confident in its opinion, on pain of exceeding its jurisdiction. The result is the same. Mr Burns did not make any attempt to provide a justification for the principle for whose existence he contended. Nor did he bring to the attention of the Court any authority for it. Certainly, the authority to which he did refer, which makes clear that a panel "must act on the basis of evidence of some sort", does not support his submission.[182] In those circumstances, there is no basis upon which I could accept it.

298 For those reasons, the panel's decision will not be assailable on the basis that it acted on evidence of an inadequate strength. The question is whether there was no material before it probative of its conclusion that CD's urogenital system impairment was not related to the incident of 11 March.

299 Plainly, it cannot be said that the panel's conclusion was not open to it. To the contrary, there was ample material before the panel on which that conclusion could be reached.

300 The material before the panel has been set out in detail above. Of the six doctors whose reports were before the panel (one of whom was a psychiatrist and did not opine on the aetiology of CD's urogenital system impairment), five of them implicated unrelated factors - namely, CD's extant prostatic hypertrophy and/or the TURP procedure - in the causation of his urogenital system impairment, or denied that the incident of 11 March played a role in causing that impairment. Some did both. For example, in his report, A/Prof Brooks noted that there was no evidence of damage to the urethra from CD's catheterisation, and commented that "[r]epeated catheterisations without any evidence of urethral trauma would not result in erectile dysfunction". The associate professor also provided alternative explanations for the bleeding and the presence of fluid in the tissues surrounding CD's bladder. He concluded that CD's urge incontinence and nocturia were the result of hyperprostatism, and that CD's stress incontinence and erectile dysfunction were not caused by the events of 11 March but had potentially been caused by the TURP procedure.

301 The medical imaging reports before the panel showed an enlarged prostate and revealed no other significant abnormalities of the urethra.

302 With reference specifically to CD's erectile dysfunction, there was also material before the panel on which it was open for it to find that CD only encountered sexual difficulties following the TURP procedure. I refer to the reports of Dr Gill and Dr Nandha, as well as to the reasons of the first panel, to which, contrary to CD's submission, the panel was entitled to have regard. Whether the panel made a judgment about CD's credit, and whether it was entitled to do so, will be addressed below. But for present purposes, it is enough to observe that there was material before the panel logically probative of the fact that CD only started to experience erectile dysfunction after the TURP procedure. And that fact is, in context, capable of rationally affecting the assessment of the probability of CD's erectile dysfunction having resulted from the catheterisation.

303 Clearly, the material before the panel provided a basis on which it could rationally find that CD's urogenital system impairment resulted from an unrelated cause. That is especially so when regard is had to the fact that the panel was entitled, in forming its opinion, to have regard to its own experience and expertise.

304 Mr Burns' more specific criticisms of the panel's reasons, insofar as they were said to render the panel's determination speculative, cannot be sustained either.

305 First, Mr Burns' argument that the panel was diverted from its task by considerations of CD's credit, the previous panel's reasons and the submissions before the panel is not to the point. As I have explained, the question whether there was any evidence for the panel's determination has nothing to do with the process of reasoning actually adopted by the panel. The question is whether there was any evidence before the panel probative of its finding as to the causation of CD's impairment.

306 In any event, Mr Burns' characterisation of the panel's reasoning is unjustified. In its reasons, the panel noted Mr McCahy's view that the incident of 11 March did not contribute to CD's urinary problems. It observed that there was no long-term damage to CD's urethra. It then explained that CD's urge incontinence was caused by his prostatomegaly, and that "urinary incontinence" and erectile dysfunction were recognised potential complications of the TURP procedure. It was apparently on the basis of those matters that the panel reached its conclusion.

307 It is unnecessary to address the submission that A/Prof Brooks' report should be considered as if it were a "submission" and not "evidence". But, plainly, the opinion of a urologist acquainted with a patient's medical records on the aetiology of the patient's ills is probative material.

308 Second, the submission that the panel's determination was speculative because it came to its conclusion, notwithstanding that CD told it that he suffered erectile dysfunction in the period between 11 March and the TURP procedure, is without merit. It was explained above that the fact a finding for which there is evidence is contrary to other evidence before a decision-maker does not mean that there was no evidence for that finding. The fact that Dr Rowe's (or, for that matter, Mr Snow's) report included the incident of 11 March among the causes of CD's impairment is irrelevant for the same reason. Needless to say, the fact that CD deposed to having experienced sexual dysfunction from the time of the TURP procedure onwards in his affidavit, which was not even in existence at the time the panel issued its opinion, can have no bearing on the question.

309 Third, the fact that the panel could have made further enquiries - and thereby obtained further material - before making its decision does not gainsay there having been material before it on which it could do so. The panel's decision was not speculative, for the reasons I have given. The fact that the panel could have had more material before it does not have the effect of rendering its determination speculative.

Whether the panel erred by taking into account the first panel's decision

310 Mr Burns' argument that the "history and findings" of the first panel constituted "extraneous material" which the panel erred in taking into account, which was all but abandoned at the hearing of 19 May, should be rejected. Because the argument was all but abandoned, it is not necessary to consider it in detail. It is sufficient to make two points.

311 First, to the extent that, by use of the expression "extraneous material", Mr Burns sought to argue that the reasons of the first panel constitute an irrelevant consideration in the sense of a consideration the panel was forbidden from taking into account, that argument is inapt. In Chang v Neill, the Court of Appeal explained that a relevant consideration "in the Peko-Wallsend[183] sense is usually expressed at a significantly higher level of generality than a factual matter".[184] The Court went on to illustrate the point:[185]

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.

312 I see no reason why the same should not apply, mutatis mutandis, to irrelevant considerations. The first panel's opinion is but a source of information which addresses various relevant considerations, for example the treatment CD was receiving. The reasons of the first panel are not a consideration in the relevant sense.

313 Second, s 28LZ(1) of the Act provides that a panel is not bound by the rules of evidence and "may inform itself on any matter relating to a reference in any manner it thinks fit". Mr Burns did not offer any reason as to why that provision does not have the effect of precluding acceptance of his argument, and, in those circumstances, I consider that it must.

Whether the panel erred by failing to make further enquiries

314 The argument that the panel's failure to request that CD undergo further medical investigations amounted to jurisdictional error should also be rejected, along with the argument that the panel erred by failing to call before it the doctors who had examined him.

315 Ms Spencer was correct to say that whether a panel has enough information to answer a medical question referred to it is, in the main, a matter for its own professional judgment. In Chang v Neill, the Court of Appeal said:[186]

[50] ... [A] medical panel is required to provide an informed professional opinion on the medical questions referred to it. Where, in a given case a medical panel considers that it is not able to provide such an opinion because of material deficiencies in the information available to it, it cannot ignore those deficiencies and proceed to reach an opinion which is not an informed professional opinion ...

[52] As a matter of common sense, where a medical panel requires a worker to attend an examination for the purpose of obtaining information to assist it to answer the medical questions referred to it, the panel must direct and guide the discussion with the worker to ensure that the information that the panel considers relevant is elicited from the worker ... [T]he panel must ask such questions as it considers necessary to enable it to provide an informed professional opinion.

316 However, it is also the law that a failure to enquire may in certain circumstances amount to jurisdictional error, whether because it constitutes a constructive failure on the decision-maker's part to carry out its statutory function, or on the basis of unreasonableness. And that was acknowledged by the Court in Chang v Neill, though it considered it unnecessary to the resolution of appeal before it to resolve the question whether and to what extent that principle applied to medical panels.[187] The principle has been applied to the decision of a medical panel since Chang v Neill.[188]

317 In what follows, the principles relevant to jurisdictional error by failure to enquire are explained. It should be remarked at the outset that the position of the law on failure to enquire is a far cry from CD's submission that the panel was bound to obtain "all of the evidence available or that should be available" before determining the medical question adversely to him.

318 In Prasad v Minister for Immigration and Ethnic Affairs,[189] Wilcox J expressed the view that the failure of an administrative decision-maker to enquire into factual matters which can be readily determined and are of critical significance to its decision may render that decision legally unreasonable. His Honour said:[190]

The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information.

319 In Minister for Immigration and Citizenship v SZIAI,[191] the High Court observed that Wilcox J's dicta, while they had been adopted by intermediate appellate courts, had not been the subject of full consideration by the High Court. The Court went on to say:[192]

Although the decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.

320 Their Honours did not consider it necessary to consider the question further because, on the evidence before the court, the further enquiries it was argued the Refugee Review Tribunal ought to have made would have been futile.[193] The respondent claimed to be a member of an Islamic association whose members were persecuted, and supplied certificates purporting to verify his membership. The Tribunal, on the basis of its own inquiries with the association, determined that the certificates were fake. The respondent argued that the Tribunal should have called the phone numbers printed on the certificates. But, evidently, the question whether the certificates were genuine could not be resolved by ringing the numbers printed on the certificates. There was, accordingly, "no factual basis" for a conclusion that the decision-maker had fallen into jurisdictional error, whether by failure to exercise jurisdiction or because the Tribunal's failure to enquire was legally unreasonable.[194]

321 Wei v Minister for Immigration and Border Protection[195] concerned a decision of a delegate of the Minister to cancel the plaintiff's student visa on the basis that he had failed to enrol in a course of study provided by a registered institution. The plaintiff was in fact enrolled in such a course of study; but the database to which the delegate referred in order to determine whether or not he was failed to reflect that fact. Justice Nettle disagreed with Gageler and Keane JJ - who made up the remainder of the Court - that the statutory requirement that a registered institution upload onto the database confirmation of students' enrolment was an imperative duty, non-compliance with which would result in an invalid exercise of the power of cancellation.[196] His Honour decided the case in favour of the plaintiff on another basis. After referring to Prasad and SZIAI, he said:[197]

[O]ne obvious way of ensuring ... that the plaintiff had ceased to be enrolled was to make a telephone inquiry of the University, the direct and authoritative source of confirmation of the plaintiff's enrolment ... Given the criticality of the fact that the plaintiff was enrolled at the University, the relative ease with which that fact could have been ascertained, the obviousness of the means of doing so - by picking up the telephone and requesting the University to check whether the plaintiff's enrolment status as shown in [the database] was in fact correct - and the clear link between the delegate's failure to make that inquiry and the delegate's determination to cancel the visa, I consider this to be a case in which the delegate's failure amounted to a constructive failure to exercise jurisdiction and therefore a jurisdictional error.

322 The Court in Chang v Neill referred to the decisions in Prasad, SZIAI and Wei. The reason the Court did not consider it needed to decide whether and the extent to which the principle identified in those cases applied to medical panels is because it was of the view that, even if the principle did apply, it would not have vitiated the decision under review in the case before it.[198]

323 The applicant in Chang v Neill sought review of a decision of a medical panel convened under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ("the WIRC Act"), as a result of which weekly payments she was receiving were terminated. The panel determined that the applicant was incapacitated for work by reason of a depressive illness from 2 to 9 November 2016, but not thereafter. In its reasons, the panel said that the applicant had been working on a full-time basis until she was made redundant (for reasons unrelated to her claim) on 25 November, that she applied for full-time positions immediately after being made redundant, and that she was due to start full-time work the day after its examination of her, namely on 5 April 2017.

324 The material before the panel suggested that the applicant was working full-time immediately prior to her being made redundant, and that she had applied for full-time positions shortly after being made redundant.

325 In an affidavit filed in support of her application for judicial review, the applicant deposed to the following facts. She worked reduced hours between 14 and 25 November 2016. She started applying for jobs in December 2016. Those applications were applications for part-time positions, but she omitted to tell the panel that. She deposed that she started applying for full-time positions in mid-January 2017, and that she had told the panel she was due to start a full-time job on 5 April 2017. She would have elaborated on the nature of her employment prior to her being made redundant and on her job-search activities had she known the panel would form its opinion on the basis of that information. It is evident from the report that the panel members did not ask the applicant about the hours she was working in the lead-up to her redundancy, or about whether the positions she applied for thereafter were full-time or part-time positions.

326 The applicant argued that, in circumstances where her capacity to work on a full-time basis was the key issue for the panel, by failing to enquire as to whether the job applications she had made following her redundancy were for full-time or part-time positions, the panel had failed to perform its statutory duty. It was for the following reasons that the Court considered it was not required to consider the applicability of the principle which has its origins in Prasad:[199]

[57] We accept that the question whether the applicant continued to work full-time prior to her redundancy and applied for full-time work after her redundancy could have been resolved easily by the Panel simply seeking clarification from her during her examination. However, the circumstances of this case did not give rise to an "obvious" need for the Panel to seek such clarification. For the reasons we have already given, all the information before the Panel strongly suggested that the applicant had engaged in full-time work immediately before her redundancy and had sought full-time work shortly after her redundancy.

[58] We also accept that the fact that the applicant had applied for part-time work for an initial period of a month after her redundancy might have been relevant to the Panel's deliberations because it might have indicated that she did not consider herself able to perform full-time work for that initial period. However, that fact could not be regarded as "critical". Unlike Wei, where the plaintiff's enrolment status was the sole basis of the delegate's adverse decision, the precise nature of the applicant's job applications in the present case was merely one of a myriad of potentially relevant facts. In the light of the Panel's conclusion that the applicant had "some mild and intermittent depressive and anxiety symptoms", it is very unlikely that its answer to the medical question about her work capacity would have been different if it had inquired as to the precise nature of her job applications following her redundancy.

327 That principle was applied to the decision of a medical panel in a more recent decision of this Court in Schmael v Leach.[200] In that case, a medical panel convened under the WIRC Act determined that the plaintiff was suffering from chronic pain with no evidence of an organic cause, and that her condition was not causally contributed to by her employment.

328 The panel in Schmael had before it a report of a bilateral shoulder ultrasound which indicated that the plaintiff had bursitis in her shoulders. The panel was aware that the plaintiff was due to undergo MRI investigations of her shoulders shortly after the panel's examination of her. The panel opined that ultrasounds were "operator dependent" and could be unreliable, and that the minor abnormalities described in the report were often seen in asymptomatic people. The panel noted that its physical examination of the plaintiff did not suggest significant shoulder pathology, and that the fact that steroid injections had proved ineffective served to confirm that view. The panel expressed the opinion that no further investigations were necessary. As it turned out, the MRI report described significant shoulder pathology.

329 The plaintiff argued that the panel fell into jurisdictional error by failing to obtain the reports of the MRI investigations she underwent following the panel's examination. Justice Richards agreed, holding that it was legally unreasonable for the panel to make its decision without obtaining the MRI findings, which "it [was] obvious [were] readily available and centrally relevant" to its decision.[201] That was so despite the fact that the panel considered no further investigations were necessary, because, in circumstances where it had rejected the ultrasound as unreliable and knew that an MRI was shortly to be performed, the panel's view lacked "an evident or intelligible basis".[202]

330 On one view of things, Richards J appears to have considered the requirement of obviousness to relate to the availability and relevance of the information, rather than the need for it.[203] That interpretation appears to be consistent with the dicta of Wilcox J in Prasad, where his Honour referred to material which it is "obvious ... is readily available which is centrally relevant".[204] It is less clear whether the High Court was of the same view in SZIAI when it referred to "an obvious inquiry", given that to enquire is to seek information.[205] In Chang v Neill, the Court of Appeal appears to have considered the requirement of obviousness to relate to the need for the enquiry.[206] Similarly, in Wei, Nettle J considered it significant that the delegate of the Minister knew that the plaintiff did not know the cancellation of his visa was proposed and thus had no opportunity to demonstrate why the supposed ground of cancellation did not exist, and thus ought to have realised that he had to be "as certain as reasonably possible" that it did exist.[207] That said, it might be thought that the need for the MRI results was obvious in the case before Richards J in circumstances where the panel considered the ultrasound potentially unreliable, which fact her Honour considered resulted in there being a "material deficiency" in the information available to the panel.[208]

331 I consider that the better view is that the need for the information the failure of whose acquisition it is contended amounts to a jurisdictional error be obvious. In that connection, it is relevant that whether a panel has enough information upon which to form a view is, in the main, a matter for its own judgment.

332 Justice Richards equated the requirement that the fact be "critical" with a requirement that it be "centrally relevant" to the decision to be made, rejecting a submission that a fact will be critical only where the decision-maker would necessarily have formed a different opinion had it known of the fact.[209] Her Honour did so on the basis that all the plaintiff had to demonstrate is that "consideration of the MRI results 'could realistically have resulted in a different decision'".[210] Her Honour appears to have treated the requirement that an error be material if it is to go to jurisdiction as equivalent to the distinct requirement that a fact be critical in order for a failure to enquire to be unreasonable. To the extent that all materiality requires is a "realistic possibility that the [decision-maker's decision] could have been different"[211] had the enquiry been made, the conflation of those two requirements might work substantially to lower the bar a plaintiff must clear in order to establish unreasonableness by failure to enquire, a ground which it has been said will apply only in a "rare or exceptional" case.[212] As will be seen however, even setting the bar at its lowest, the principles relating to jurisdictional error by failure to enquire do not avail CD in the present case.

Applicable principles: Failure to assess impairment in accordance with the Guides

333 A medical panel will fall into jurisdictional error where it fails to assess impairment in accordance with the Guides.[213] A panel will be considered to have done so only where it can be demonstrated that the panel's assessment "departed from the methodology laid down by the A.M.A. Guides to such an extent that it can properly be said of the assessment that it was not 'in accordance with' the Guides".[214] Where a panel states in its reasons that it carried out its assessment in accordance with the Guides, the onus on an applicant for review to persuade the reviewing court otherwise is a "heavy" one.[215]

The panel's failure to request further investigations

334 The panel's failure to request further investigations did not amount to a jurisdictional error, either because it constituted a failure to enquire in the sense described above, or because it meant that the assessment was not carried out in accordance with the Guides.

335 For the following reasons, the panel's failure to request further medical investigations did not amount to a failure to enquire of the kind identified in Schmael.

336 To begin with, the decision under review in Schmael was purportedly made under an Act containing a provision that expressly empowers a medical panel to request "further information" from the worker or the person referring the medical question if it "considers that further information is required".[216] That fact, which was alluded to in Chang v Neill, was of central importance in Schmael.[217] The Act with which we are concerned in the present case contains no equivalent provision.[218] Ought implies can. Plainly, a decision-maker cannot be held to have committed jurisdictional error by failing to make an enquiry it had no power to make. In what follows, I assume for the sake of argument that the panel had the power to request further medical investigations.

337 Insofar as the cystoscopy is concerned, the panel had before it the report of Mr Snow, in which the doctor opined that it was not clear "what pathology is present within [CD's] lower urinary tract", and recommended that a further cystoscopy be conducted. But, for the following reasons, it does not follow that the panel fell into jurisdictional error by failing to request a further cystoscopy.

338 While the panel was duty-bound to consider the report of Mr Snow, it was under no obligation to agree with him.[219] Evidently, it did not. It is difficult to see, then, on what basis one might argue that there was an obvious need for a further cystoscopy. The present case is not a case like Schmael, where there was a question as to whether there was any significant shoulder pathology and the medical panel had rejected the only medical imaging available on the basis that it was not reliable. Rather, the material before the panel included the reports of Mr McCahy of 2 June and 22 November. In those reports, Mr McCahy expressed the opinion that the cystoscopy revealed some "slight bulbar urethral narrowing" but that CD's urethra appeared "otherwise normal", and that there was "no evidence of false passage or stricture". Added to that was the other material before the panel, which I need not rehearse again, which tended to show that the incident of 11 March was not the cause of CD's ills.

339 Nor is it open for me to hold that the criticality requirement is satisfied in the present case, even were I to accept that all that is required here is that consideration of the cystoscopy results could realistically have resulted in a different decision. In all the cases in which jurisdictional error by failure to enquire has been considered, there has been evidence as to what results the counterfactual enquiry would have yielded. There is no evidence before this Court about the results of any further cystoscopy.[220] Nor, necessarily, is there any evidence about how those results bear upon the question whether CD's catheterisation is the cause of his impotence and incontinence. One might infer from Mr McCahy's reports that a cystoscopy revealing a false passage or stricture might tend to prove that the events of 11 March caused or contributed to CD's urinary problems. That is all. To find that the results of a cystoscopy of which there is no evidence could realistically have resulted in the panel making a different decision would be to heap speculation upon speculation. Nor, for the same reason, could one find that any error the panel might have made was material.

340 The remarks I have made apply a fortiori where the other tests listed in CD's affidavit are concerned. There is no evidence before the Court as to what a urethrogram and a urodynamic study are, let alone evidence of the results of any such investigations and the significance of those results.

341 However, there is a prior obstacle to acceptance of the argument that the panel's failure to request a urethrogram and urodynamic study amounted to jurisdictional error, namely that the relevant part of CD's affidavit is inadmissible hearsay.[221]

342 Nor did the panel's failure to request additional medical investigations amount to a departure from the methodology laid down by the Guides to any extent, let alone to such an extent as to enable CD to discharge the heavy onus of proving that the assessment was not carried out in accordance with the Guides. In that connection, I note that the panel in its reasons stated that it assessed CD's impairment using Chapters 11.3 and 11.3a of the Guides. First, as Ms Spencer rightly pointed out, while Chapter 11.3 identifies "cystoscopy, voiding cystourethrography, cystometry, uroflowmetry, urinalysis, and urine cultures" as useful techniques for evaluating impairment of the bladder,[222] it does not recommend, much less require, that any of those tests in particular should be carried out in a given case. Second, cystoscopy excepted, Chapter 11.3 does not appear to refer to any of the tests identified by CD in his affidavit, and there is no evidence before this Court that the terms "urethrogram" and "urodynamic study" are alternative names for the investigations listed in Chapter 11.3.

The panel's failure to require the attendance of health practitioners who examined CD

343 The panel's decision not to require the doctors who examined CD under s 28LZE(1)(a) does not constitute a legally unreasonable failure to enquire, nor does it reveal a constructive failure by the panel to exercise its statutory function. That is so for substantially the same reasons why the panel's failure to conduct further medical investigations did not constitute such an error. The panel formed its opinion on the basis of its experience and the documents referred to in the enclosure referred to at the end of its reasons (Enclosure A), including those authored by the health practitioners the panel did not decide to call before it. The panel was clearly of the view that it had sufficient information to determine the medical question. There is no basis upon which to suggest that it was required, in the circumstances, to question those health practitioners.

344 The second aspect of the panel's decision with which CD took issue concerned his credit in relation to the question whether he had suffered erectile dysfunction from 11 March 2017 onwards. Mr Burns argued, in short, that the panel erred when it made a judgment in relation to CD's credit on that question.

345 Mr Burns submitted that the panel made a finding that CD was not to be believed when he told the physical panel that he had suffered from erectile dysfunction from the time of his catheterisation on 11 March, on the basis of inconsistent statements he was recorded to have made to others. The panel made its adverse causal determination "principally" on the basis of that finding. In doing so, the panel took into account an irrelevant consideration, namely "its findings [as] to [CD's] credit on statements of when he first experienced symptoms of erectile dysfunction". Mr Burns did not make clear whether, on his argument, the panel had simply decided that CD was an unreliable historian, or whether it had in fact made a positive finding that he only began to experience erectile dysfunction following the TURP procedure. Either way, he had it that the panel's "finding" played a central or even a determinative role in the panel's conclusion.

346 Mr Burns argued that the physical panel was bound to accept the accuracy of what CD told it on 28 January 2020. When questioned as to whether his argument's upshot was that a panel must in every case accept as accurate anything a claimant says on examination, Mr Burns proposed two exceptions to the rule for which he contended. I will return to those below.

347 Turning to what it was about the panel's reasons that demonstrated it had made a judgment about CD's credit, Mr Burns made two points. First, he relied on the fact that the panel called for submissions on the issue of the inconsistent statements CD was recorded to have made as evidence that the issue of his credit was "forefront in their mind[s]". Second, Mr Burns attempted to characterise a causal link between CD's catheterisation and the onset of his erectile dysfunction as the necessary corollary of the temporal coincidence of those two events, such that a finding by the panel that there was no such causal link necessarily involved a rejection of CD's version of events. At one point during oral submissions, Mr Burns said that the panel "should have assessed [CD], took him at his word and said, 'That's the complaint and that's the impairment. The injury that he complains of has led to that impairment.'"

348 Ms Spencer submitted that CD's argument should be rejected on the basis that the issue of his credit did not factor in the panel's decision. Instead, the panel "relied on medical matters" and did not need to decide when CD began to suffer erectile dysfunction. And, in any event, she argued, medical panels are entitled to make credit judgments.

349 Ms Spencer's argument that the panel's determination was not based on an assessment of CD's credit involved two propositions. First, the panel's reasons reveal that the issue of CD's credit "form[ed] no part of their path of reasoning". Second, there was no need for the panel to make a finding as to CD's credit in circumstances where the medical evidence before the panel was consistent with its conclusion as to the cause of his impairment.

350 Turning to the first limb of her argument, Ms Spencer took the Court to the section of the panel's reasons entitled "Physical Impairment Assessment". It was that section of the panel's reasons, she argued, that contained the panel's analysis. There, the panel noted the report of cystoscopy which showed no evidence of any long-term damage to CD's urethra that could have explained his erectile dysfunction, and stated that erectile dysfunction is a recognised potential complication of the TURP procedure.[223] (I pause to note that all the panel said with reference to its observation that the cystoscopy did not suggest any long-term damage to CD's urethra was just that - the panel said nothing about whether urethral damage was a means or the sole means by which catheterisation might lead to erectile dysfunction.) The panel added that CD's need for a TURP arose as a result of his pre-existing condition of the prostate, and would have arisen regardless of the fact he was catheterised. It considered those pieces of evidence and, applying its expertise and experience, concluded that CD's catheterisation was not the culprit for his erectile problems; rather, the TURP procedure was. At no point in its analysis did the panel refer to CD's inconsistent accounts vis-à-vis the onset of his impotence, much less did it make any finding as to when in fact CD last achieved an erection. The issue of CD's credit, Ms Spencer argued, simply did not factor in the panel's analysis.

351 The second limb of Ms Spencer's argument aimed to demonstrate that there was no need for the panel to make the judgment Mr Burns submitted it made. Mr McCahy expressed the view that CD's catheterisation had not done any long-term damage. Not one medical report before the panel attributed CD's erectile dysfunction to the episode of 11 March as opposed to the TURP procedure. The reports most favourable to CD, namely those of Dr Rowe and Mr Snow, failed to distinguish between the catheterisation and the TURP in drawing conclusions about CD's urogenital system impairment.[224] Further, the report of A/Prof Brooks positively expressed the view that CD's erectile dysfunction was not a result of his catheterisation, but may have been related to the TURP. And Dr Nandha expressed the opinion that CD's erectile function was "more related to the TURP surgery rather than the incident of 11th March 2017". Those matters, considered in the light of the panel's experience and expertise, allowed it to make the judgment it made, without needing to have recourse to the issue of CD's credit. Plainly, whether or not there was a need for the panel to make a credit judgment is not of itself to the point. Ms Spencer's argument must therefore rest on the proposition that the absence of a need to make a credit judgment makes it less likely that one was in fact made.

352 Ms Spencer also dealt with the two factors Mr Burns encouraged the Court to regard as indicia of a credit judgment having been made. In relation to the panel's inviting submissions, she pointed out that the panel was obliged to accord CD natural justice, in the circumstances by giving him an opportunity to comment on his inconsistent statements.[225] Contrary to the assumption upon which Mr Burns was operating, Ms Spencer pointed out that there was no necessary inconsistency between the panel's acceptance of CD's version of events and a finding that the events of 11 March were not responsible for his erectile dysfunction.

353 Ms Spencer then argued that, in any event, the panel was entitled to have regard to matters of credit; it was not required to accept what CD told it on examination.

354 She pointed out, first, that a panel is entitled to inform itself as it thinks fit.[226] It followed that there was no obstacle to a panel's considering what a claimant is recorded to have said on a previous occasion.

355 Second, Ms Spencer submitted that authority supports the proposition that a medical panel is entitled to have regard to a claimant's credibility. In that connection, Ms Spencer referred to Kamener v Griffin[227] and Khan v Romas.[228] She pointed out that, in each of those cases - which concerned the decisions of medical panels constituted under the Accident Compensation Act and the WIRC Act, respectively - this Court accepted that making credit judgments is part of a panel's function. Ms Spencer drew my attention specifically to that part of the reasons in the former case where Williams J, relying on the Court of Appeal's decision in Masters v McCubbery, rejected a submission that it was no part of a panel's function to pass upon a worker's credit.[229] Ms Spencer submitted that Masters establishes that it is the duty of a medical panel to consider "not just medical questions", but to make the "sub-determinations" of fact and law to which Winneke P referred in that case. It followed that a judgment as to CD's credit was within the remit of the panel.

356 It was not clear under which of his grounds of review CD's argument was supposed to fall. Mr Burns appeared to characterise the issue of CD's credit as an irrelevant consideration which the panel took into account. It might be thought that Mr Burns intended that his argument would fall under Ground (b), which asserts that the panel erred by taking into account "extraneous material", namely the findings of the first panel. The amended originating motion filed on 23 September 2021 suggests as much. In that document, CD purported to amend Ground (b) by adding to it the words:

in particular the history recorded by that earlier panel that [CD] has "said that he had no sexual difficulty between the time of his failed catheterisation on 11 March 2017 and his prostate surgery on [2] June 2017" notwithstanding that it acknowledged that "[CD] retracted this statement and told the current panel that "he has suffered from complete sexual dysfunction, being unable to have or sustain erection, nor waking with a morning erection, since the incident of 11 March 2017[.]

357 The Court did not give CD leave to amend Ground (b) when it invited submissions on the question of apprehended bias on 7 September.[230] But, for the following reasons, that does not matter. First, as we have seen, as it was developed in oral argument, CD's complaint was really that the panel erred by making a credit judgment - or taking CD's credit into account - and not that the panel erred by having regard to the previous panel's reasons. Second, the panel did not only refer to inconsistent statements CD made to the first panel; it referred also to inconsistent statements CD had made to the second psychiatric panel and to Dr Gill, and, to the extent that the panel stated that it took into account the documents listed in Enclosure B and to the hospital's submissions, the inconsistent history recorded by Dr Nandha. Accordingly, Ground (b) is not broad enough in scope to capture the entirety of Mr Burns' argument. Third, as Mr Burns himself conceded, a panel is entitled to have regard to a previous panel's reasons. And if the point were that a previous panel's reasons become forbidden territory only when they attribute to a claimant statements inconsistent with those he makes to the subsequent panel, the impermissibility of recourse to the previous panel's reasons would in that case need to derive from some factor other than the statement of reasons itself, such as the impermissibility of considering matters of credit.

358 CD's argument, then, might instead be thought to fall under Ground (h). That is because, were it the case that the panel was not entitled to assess CD's credit and was instead required to take him at his word on 28 January 2020, but went ahead and rejected what he said as inaccurate, the panel would clearly have misconceived the nature of its function under the Act.

359 CD's argument that the panel erred by making a finding as to CD's credit with respect to the issue of the onset of his erectile dysfunction must be rejected. That is so because the panel was entitled to form a view about the credibility of CD with respect to the issue of when he began to experience erectile dysfunction.

360 Ordinarily, my conclusion regarding the panel's entitlement to form a view about the credibility of CD with respect to the issue of when he began to experience erectile dysfunction would make it unnecessary for me to consider the question whether in fact the panel made such a judgment. However, my conclusion on the prior question was attended by some hesitation. And, more importantly, the question whether the panel formed a view about CD's credit vis-à-vis the issue of the onset of his impotence becomes relevant when considering the argument that the panel failed to have regard to relevant factual material. For reasons I will give below, I find that the panel's reasons, considered as a whole and in light of the circumstances of the case, demonstrate that the panel did form a view about CD's credibility.

The panel was entitled to make a credit judgment

361 In what follows, I first consider the authorities which support the proposition that medical panels convened under the Accident Compensation Act and the WIRC Act are entitled to make credit judgments. Next, I question whether the position under the Wrongs Act might be different. I conclude that, despite differences between the Wrongs Act and workers' compensation legislation, a panel constituted under the Wrongs Act is entitled to form a view as to a claimant's credit. Finally, I consider whether there might be a legally relevant difference between credit judgments of the sort it is alleged the panel made in CD's case - what one might call "pure credit judgments" - and credit judgments involving the application of medical knowledge. While there are arguments both ways, I think that such a distinction is difficult to draw in practice and that, in any event, authority forecloses that view that any such distinction may be drawn.

362 A survey of decisions in applications for judicial review of the decisions of medical panels convened under workers' compensation legislation shows that it is settled that such panels are entitled to make judgments about workers' credibility.

363 Kamener v Griffin,[231] the first authority to which Ms Spencer took the Court, concerned the decision of a medical panel constituted under the Accident Compensation Act. That panel was tasked with the question, inter alia, whether the fifth defendant worker's employment was a "significant contributing factor" to any injury to his right shoulder or lumbar spine. The worker claimed he was injured during the period spanning late-May to 15 July 1999 whilst in the employ of the plaintiffs. He had been involved in a motor vehicle accident in 1998, prior to commencing his employment with the plaintiffs. And, subsequent to leaving their employ, he fell at home. The histories the worker provided to the panel and to medical practitioners who examined him for the purposes of his claim against the plaintiffs were inconsistent with those he provided his treating practitioners, as well as those he gave medico-legal experts who examined him for the purpose of claims he had made against others. Stated shortly, the histories taken by those doctors recorded that the worker had sustained injuries in the prior and subsequent incidents, which the worker denied. The panel's reasons made no mention of the inconsistent histories, much less did the panel explicitly address the issue of the worker's credibility.

364 The plaintiffs argued that the panel had failed to have regard to the materials containing the inconsistent histories, and that this constituted a failure to take into account a relevant consideration, namely whether there was a causal connection between the worker's physical condition and the motorcycle accident and fall. Its failure to do so, the plaintiffs argued, was evidenced by the panel's silence on the issue of the worker's creditworthiness, about which it should have made a finding.

365 Justice Williams rejected the plaintiffs' argument that the panel had failed to have regard to the materials. Her Honour was not, in the circumstances, prepared to make such a finding in the face of the panel's statement that it had had regard to the materials in Enclosure A.[232] However, her Honour held that the panel's decision was bad for error of law apparent on the face of the record on the basis that its reasons were inadequate because they did not address the issue of the worker's credibility.[233] Her Honour explained:[234]

[55] ... [The panel's reasons] do not explain the extent to which the Medical Panel accepted the worker's assertions and the various histories given by him or relied upon other material of a more objective character in reaching its conclusions about the effects of the nature of his duties.

[56] In my opinion, given the clear dispute as to the accuracy of the histories given by the worker, the issues raised about any effects of the previous and subsequent incidents and the challenges to the worker's credibility, it was incumbent upon the Medical Panel to describe in more detail how it reached its conclusions. It was not enough for it to have made a general reference to relevant materials. It needed to provide "sufficient detail" to fulfil the obligation described by Callaway JA in Masters v McCubbery,[235] "to show the court and the worker that the question referred to the panel ha[d] been properly considered according to law and that the opinion furnished [was] founded on an appropriate application of the members' medical knowledge and experience".

366 Plainly, Williams J considered that the panel whose decision was under review was entitled to evaluate the worker's credit. What is more, her Honour rejected a submission to the contrary.[236] She appeared to do so on the authority of Masters v McCubbery, in which case the Court of Appeal said that a medical panel's statutory duty involves determining questions of mixed fact and law.[237] Williams J said:[238]

The Medical Panel was required to answer the questions put to it. It was necessary for it to have made the necessary "sub-determinations" described by Winneke P in Masters ... However, in my view, neither the statement of its opinion nor the Reasons persuade me to infer that the Medical Panel had failed to take into account ... the question raised by the materials as to the worker's credibility.

367 Her Honour accepted that answering the question whether the worker's employment was a significant contributing factor to his shoulder injury required the panel to take into account the effects of the worker's other accidents, and that, in the circumstances, doing so required it to form a view as to the worker's credibility.

368 After Williams J quashed the panel's decision and remitted the medical questions to it, it made a second decision to the same effect. In its reasons, it said that it "took into account the apparent inconsistencies in the histories provided by the worker", and concluded that, despite them, it was satisfied that the worker had a shoulder injury attributable to his employment. The plaintiffs sought judicial review of the second decision, arguing that the panel failed either to resolve the inconsistencies to which it referred or pass upon the worker's credibility, or else its reasons were inadequate for failure to reveal how it had resolved those issues.[239] Justice Ashley dismissed the plaintiffs' application, finding that it was "implicit" in the panel's reasons that "the panel approached the matter not simply by recognising that there were inconsistencies, but by resolving [them] against the worker".[240] His Honour was clearly of the view that it was open to the panel to do what it did.

369 Masters concerned the question whether a medical panel constituted under the Accident Compensation Act was a "tribunal" for the purposes of the Administrative Law Act 1978 (Vic), s 2 of which provides that a "tribunal" is a decision-maker that is required by law to observe one or more of the rules of natural justice. Justice Winneke (the President) proceeded on the basis that, where a statute confers on a decision-maker a power to "destroy, defeat or prejudice a person's right, interests or legitimate expectations", then it will be obliged to afford that person procedural fairness, unless such an obligation is excluded by "plain words of necessary intendment".[241] The Accident Compensation Act, his Honour considered, empowered a medical panel conclusively to determine a worker's rights to weekly payments of compensation.[242] That conclusion depended upon the particular features of the Accident Compensation Act.

370 The appellant worker's weekly payments had been terminated by his insurer on the basis that he was only "partially incapacitated" for work. Section 43 of the Act conferred upon the Magistrates' Court jurisdiction to hear the worker's complaint and to reinstate his weekly payments on the basis that he was "totally incapacitated" for work. But s 45(1)(a) and (b) of the Act provided that the court hearing the complaint could - and was in certain circumstances required to - refer a "medical question" to a medical panel for an "opinion". It was under s 45 that the County Court in Kamener referred the medical questions considered in that case to the panel. Section 5 of the Act defined "medical question" as, inter alia, "a question as to the existence, extent or permanency of any incapacity of a worker for work or suitable employment and the question whether a worker is partially or totally incapacitated". And s 45(1)(c) imposed upon the referring court an obligation to adopt the "opinion" of the panel as the answer to the "medical question" referred.

371 The President pointed out that the "medical question[s]" the Act allowed the court to transmit to a medical panel for its "opinion" were questions which would otherwise be determined by the court exercising its jurisdiction under s 43, which questions the Act allowed the panel finally to determine.[243] In that connection, his Honour had the following to say about the true nature of a panel's function, statutory terminology notwithstanding: [244]

Although these critical issues are referred to the medical panel couched in terms of "medical questions" and the responses of the panel to them are couched in terms of "opinions", such legislative terminology cannot obscure the fact that the panel is being called upon to decide matters of mixed law and fact which decisions operate by virtue of the provisions of the Act to bind the court and thus to effectively dispose of the issues which have been raised by the worker and placed by him before the court for its determination.

It can be seen, at a glance, that these "questions" required the medical panel not only to make an assessment of the worker's medical condition but also to determine in the light of that assessment whether the worker was in fact incapacitated from carrying out his former employment or any other "suitable employment"; whether that incapacity was "permanent"; whether the worker was "partially" or "totally" incapacitated for any form of employment and the level of his impairment (if any) assessed in accordance with the guides. Because of the definitions given by s 5 of the Act to [those expressions] ... the panel was required to measure the worker's medical condition (as they found it to be) against these statutory definitions as they interpreted them ...

The "opinions" thus formed by the panel incorporated within them a number of sub-determinations, based on the material before it, on matters of both fact and law ...

These ultimate conclusions expressed by the panel as "opinions" dispose in all practical senses with the dispute raised by the claim between the worker and the authorised insurer and leave the court with no relevant function but to give effect to them ... Thus the effect which the Act gives to the panel's "opinion" is apt to demonstrate how clearly the powers invested in the panel are capable of interfering with the rights of the individual.

372 George v Nisselle[245] concerned the decision of a panel convened under the Accident Compensation Act, but not pursuant to a referral under s 45. The applicant sustained an injury to his right arm lifting sheep carcases at the fourth respondent's abattoir. The issue for the panel was whether the applicant had a "total loss" injury. It concluded that he did not. In the course of summarising the panel's reasons, Gillard J said:[246]

On physical examination the Panel observed that the applicant was generally protective of his right arm and hand but noted there was no visible wasting of the muscles, which was consistent with him being right-handed and "consistent with normal use". It was further observed there was a full range of movement of the right wrist and a full range of movement of the thumb and the joints at the base of the thumb. However, there was some pain in the end range extension of the thumb. The Panel members then wrote:

Examination of the hands revealed equal skin thickness and toughness of the palms of both hands consistent with normal use. Grip strength of the right hand using a Jamar Dynamometer revealed mildly weak test results compared with the left hand, but the Panel considered the test results to be unreliable and inconsistent.

373 In that context, his Honour observed that the panel "had to make some assessment of the applicant's credibility in respect to the use of his right hand".[247]

374 The case of Robert Bosch (Aust) Pty Ltd v Barton,[248] decided in 2008, also concerned the decision of a panel convened under the Accident Compensation Act. The worker in that case alleged that he was totally and permanently incapacitated for employment by reason of a spinal injury and secondary chronic pain, anxiety and depression. The question for the panel was whether, contrary to his assertions, the worker had a "current work capacity". As in Kamener, that question was referred to the panel under s 45 of the Act.

375 The material before the panel included surveillance videos taken by private investigators engaged by the plaintiff employer. In written submissions to the panel, the employer relied on the surveillance material as evidence that the worker was feigning or at least seriously exaggerating his disability. The surveillance footage showed the worker unloading lengths of timber from his vehicle and lifting them onto an upper level of a house. The worker was also depicted walking with apparent difficulty and with the aid of a stick while in the proximity of the consulting rooms of a doctor whom the employer's insurer had examine the worker, but walking without any observable impediment not long thereafter.

376 The worker's credibility was also impugned in medico-legal reports provided to the panel. An orthopaedic surgeon who viewed the footage and examined the worker concluded that the variability of his symptoms and restrictions was inexplicable "on the basis of spinal pathology", and that any pathology that was present would have been "non-organic". I pause to note that the orthopaedic surgeon's opinion did not necessarily involve a credit judgment; that the worker might have had some sort of psychic pain disorder remained a possibility. But a psychiatrist who examined the worker said that he was "not convinced" that the worker was "a truthful historian", and that he was "not prepared to accept that he [was] anxious and depressed or in fact ha[d] a psychiatric illness" or a "psychologically based pain disorder". The psychiatrist formed that view on the basis that the worker "presented as a smiling individual who did not appear depressed", as well as on the basis of the inconsistencies between the worker's physical presentation and his movements in the surveillance footage, which was shown to the psychiatrist.

377 The panel determined that the worker had no current work capacity. The employer successfully sought review of the panel's decision, on the basis that its reasons were inadequate because they did not explain how the panel resolved the issue of the worker's credibility and dismissed the significance of the surveillance material and the reports of the two doctors mentioned above.[249] In relation to that issue, Judd J said:[250]

There can be no doubt that the issue of the worker's credibility raised by the surveillance evidence and medical reports before the panel was significant and material to the questions for its consideration ... The allegation [that the worker was feigning his disability] went to the heart of the panel's function, which [involved] ... the formation of opinions about his level of disability. In order to answer the questions it was necessary for the panel to form a view about the accuracy of the worker's account of his disability, pain and symptoms.

378 Like Williams J before him, Judd J appeared to link the requirement for the panel to form a view about the worker's credibility to the panel's statutory task as it was explained in Masters:[251]

[14] In order to answer all questions the panel was required to decide matters of mixed law and fact. It would be required to examine and question the worker, whose credibility was challenged.

[22] The issues confronting the panel in this case were not simply questions that were to be answered by bringing to bear medical expertise and experience. The panel was required to express an opinion as to whether the plaintiff had a "current work capacity", which in turn called upon the panel to determine whether the worker was able to return to work in suitable employment, which meant employment in work for which he was currently suited having regard to ... the definition of suitable employment in s 5 of the Act. In order to express that opinion the panel was required to address the credibility of the worker which was subject to a very fundamental challenge.

379 Two more recent decisions of this Court in which it was accepted that making a judgment about a worker's credibility is part of a panel's function are Khan v Romas,[252] to which Ms Spencer referred, and Mailton Holdings Pty Ltd v Jussy.[253] Before those two cases were decided came the decision in Sherlock v Lloyd,[254] in which case the Court of Appeal characterised the function of a panel convened under the Accident Compensation Act in rather different terms to those used in Masters. The Court was concerned with an argument that a panel constituted under that Act was under an obligation to give reasons at common law.[255] In rejecting the notion that such a panel's function was judicial in nature, their Honours said:[256]

[20] ... A panel under the [Accident Compensation Act] ... expresses its "opinion" on specific medical questions referred by the court. In this sense, the panel operates as a statutory expert, providing an expert opinion for the assistance of the court and the parties on medical (not legal) questions.

[21] The provisions of the [Act] foreclose debate on the panel's opinion, by making the panel's answers conclusive of the issue(s) the subject of the referred medical questions. But that circumstance could not, in our view, convert into a judicial function what is defined - by the express terms of the Act - as an expert medical function. As the [Act] makes clear, the panel performs its medical function in aid of the judicial function being performed by the County Court.

380 While Winneke P's comments in Masters were not directly questioned, it appears that the above characterisation of the function of a panel convened under the Accident Compensation Act is inconsistent with the notion that such a panel is tasked with determining questions of fact and law that subsist inter partes. Their Honours' remarks make clear that the job of a panel convened under that Act is to provide the court with an expert opinion in order that the court may determine those questions (albeit that the court's hands are effectively tied in doing so).

381 In Khan, the plaintiff worker sought judicial review of the decision of a medical panel constituted under the WIRC Act in accordance with a referral pursuant to s 274 of that Act[257] on the basis that the panel erred by failing specifically to avert to the question whether he was suffering from chronic pain syndrome, a condition which causes its sufferer to experience pain in the absence of an identifiable organic cause. Associate Justice Daly considered that the panel's failure squarely to address the evidence tending to show that the worker was suffering from chronic pain syndrome, or the submissions of the worker which advanced that proposition, amounted to a failure to take into account a relevant consideration.[258]

382 Her Honour, as well as the parties to the application, appear to have accepted that it would have been permissible for the panel to make a finding about the worker's credibility.[259] Had the panel expressly stated that it disbelieved the worker's reports of pain, it would not have failed to take into account a relevant consideration, for in such circumstances there would have been no reason for the panel to consider the question whether the worker was suffering from chronic pain syndrome:[260]

[35] Mr Khan submitted that the submissions made by [his employer] to the Panel invited the Panel to find that Mr Khan's reporting of his symptoms should be disbelieved. However, no finding one way or another was made by the Panel.

[51] In my view, while the matter is finely balanced, the Panel, in failing to squarely address the submissions and evidence advanced by Mr Khan to contend that he is suffering from chronic pain syndrome ... has failed to take into account a mandatory relevant consideration ... It is possible to infer from the Panel's statement that "the mere continuation of subjective complaints or symptoms in the absence of a consistent history and concordant objective signs does not equate to any continuing physical (or psychiatric) conditions" that the Panel believed that Mr Khan was fabricating or exaggerating his symptoms of pain: however, nowhere in the reasons does the panel say that it did not accept Mr Khan's account of his symptoms. As noted by counsel for Mr Khan ... if I were to infer that the Panel disbelieved Mr Khan's reporting of his symptoms of pain, I would be engaging in impermissible "gap filling".

383 Mailton Holdings concerned a woman who claimed to suffer from pain and restricted spinal mobility following a fall in a stairwell at her workplace. On a s 274 referral, a medical panel concluded that, though the soft tissue injury the worker suffered as a result of her fall had resolved, she continued to suffer from "somatic symptom disorder with predominant pain" - a condition of the mind - and was incapacitated for work as a consequence. In addition to medical reports and records, the panel had before it surveillance material depicting the worker moving in a manner inconsistent with her presentation to the panel. In its reasons, the panel referred to the surveillance footage and noted that the worker had been unable to explain the inconsistency. It also referred to submissions made by the plaintiff which put the worker's credit in issue.

384 The plaintiff sought review of the panel's decision on the basis that it had failed to give proper consideration to the issue of the worker's credit. In support of its argument, the plaintiff relied on the following features of the panel's reasons: the panel did not "directly address" its submission that the worker's presentation was a "performance"; the panel did not make any "explicit findings" about the worker's credit; and the section of the panel's reasons that dealt with psychiatric injury did not refer to the surveillance footage or any other material relevant to the worker's credit.

385 Justice Richards accepted that the worker's credit was a "fundamental issue" for the panel, in the sense that the questions referred to the panel obliged it to form a view about whether the worker was truly experiencing pain.[261] But she was not persuaded that the panel failed to have regard to that issue. First, her Honour expressed a reluctance not to take "at face value" the panel's statement that it had formed its opinion with reference to the material before it, including the plaintiff's submissions.[262] Second, it was clear from the panel's reasons that it had watched the footage and "noted differences between her actions in the footage and her presentation on physical examination".[263] Third, the panel accepted that the worker was genuinely experiencing pain.[264] That was apparent not only from the panel's reasons but also because acceptance of the fact that the worker was suffering pain was a necessary precondition to its diagnosis of somatic symptom disorder.[265]

386 Unlike judges on previous occasions, Richards J did not emphasise the role of the medical panel as an adjudicator of issues of fact and law. Instead, her Honour had this to say about the panel's function:[266]

[32] A Medical Panel is unlikely to deal with questions of genuineness and credit in the same way that a court would. Its members bring medical, not legal, skills and experience to bear in forming the Panel's opinion. A Panel is not an arbitral or adjudicative body.[267] The WIRC Act recognises that a Medical Panel may not be best placed to determine contested factual issues. It precludes the referral of a medical question to a Medical Panel where it appears to the court that "the formation of an opinion by a Medical Panel on the medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court".[268] But where factual issues are entrusted to a Medical Panel, its determination of those issues in the formation of its opinion is binding.

[33] The medical questions referred to the Panel in this case obliged it to form a view about whether Mrs Jussy was genuinely experiencing pain, and whether it could accept her account of her symptoms. The Panel's function was "to form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise".[269] In performing that function, the Panel could take a nuanced view of Mrs Jussy's credit, accepting what she said on some matters while not accepting her on others.

387 Richter v Driscoll[270] and Tan v Kotzman[271] provide another two examples of cases in which it was assumed that a medical panel might disbelieve a worker's complaints of pain.

The position under the Wrongs Act

388 It is beyond doubt that medical panels convened under workers' compensation legislation are entitled - and, in certain circumstances, obliged - to make judgments about whether what workers tell them is accurate or should be believed. Because there are obvious differences between the statutory scheme found in Part VBA of the Wrongs Act and those found in the Acts under which the panels whose decisions were considered in the authorities discussed above were convened, it seems natural to enquire whether there is any reason why the situation might be different under the Wrongs Act.

389 It is not the role of a panel constituted under the Wrongs Act to determine questions of mixed fact and law that subsist between parties before a court.[272] Nor is it the role of such a panel to furnish a court with a (binding) "expert opinion for [its] assistance" in answering medical questions.[273] Indeed, a panel may perform its function under that Act before proceedings have even been instituted.[274] Rather, the task of a panel constituted under the Wrongs Act is to determine whether the degree of impairment resulting from a claimant's injury satisfies the threshold level. Section 28LF(1)(b) deems an injury in respect of which a determination to that effect is made to be a "significant injury". A person may only recover damages for non-economic loss in respect of an injury if it is a "significant injury".[275]

390 Because the decision of a panel convened under the Wrongs Act does not work finally to dispose of issues between parties to litigation, with the result that a dispute about the credibility of a person may be determined by a court on an action for damages subsequent to the panel's decision, it might be thought that there is a salient difference between the Wrongs Act and workers' compensation legislation.[276] However, as we have seen, it is accepted that a panel convened under the Wrongs Act is required to make judgments about causation, notwithstanding that the same issue will need to be determined by a court subsequently. Subject to a point I shall make a little later, it might be said that there is no other reason why the role of a panel convened under the Wrongs Act when it comes to matters of credit should be conceived of any differently. And that appears to be the view of the Court of Appeal.

391 In Colquhoun v Capitol Radiology Pty Ltd,[277] the Court of Appeal applied the decision in Sherlock to a panel convened under the Wrongs Act, rejecting an argument that such a panel was under an obligation at common law to give reasons by virtue of the fact that the function with which it is charged is judicial in nature. In a joint judgment, Maxwell P, Weinberg JA and Ferguson AJA referred to Sherlock, observing that a panel convened under the Accident Compensation Act does not perform a judicial function, notwithstanding the fact that it plays its part in the context of court proceedings.[278] Their Honours continued:[279]

[18] The position is even clearer under Pt VBA of the Wrongs Act, as the panel performs its statutory function before any proceedings have been issued. So the panel is not acting "in aid of" the judicial function. Rather, the panel's assessment will determine whether there will be any proceeding at all (for non-economic loss). The essential character of the panel's function is, however, the same as under the [Accident Compensation Act]. That is, the panel is "providing an expert opinion ... on medical (not legal) questions".

[19] Nor, in our view, is there any identity of function between a medical panel (when assessing the degree of impairment of a claimant under the Wrongs Act) and a court (when adjudicating a disputed question between parties to litigation). It must be accepted, as the appellants submitted, that the members of a panel:

• may need to decide whether the claimant is telling the truth;

• have the power to compel attendance by the claimant's medical practitioner, subject to the claimant's consent.

But none of those attributes is in any way distinctive of the judicial function. Administrative tribunals typically have powers and obligations of this kind. So, too, do magistrates when performing administrative functions in committal and extradition proceedings.

392 Colquhoun does not appear to have been applied in the context of a case in which the ability of a panel constituted under the Wrongs Act to make credit judgments was put in issue,[280] and there appears to be no other authority considering the question.[281] Nevertheless, I consider that the passage quoted above sounds the death knell for Mr Burns' argument, especially in circumstances where he could point to no authority in support of it. It does so, first, by stating in no uncertain terms that such a panel can decide whether a claimant is truthful (and it would seem to follow a fortiori that a panel might legitimately consider that a claimant is simply mistaken). Second, the Court of Appeal emphasised that, that fact notwithstanding, the function of a medical panel is to answer a medical as opposed to a legal question. In that way, their Honours' reasons controvert the notion which underlay Mr Burns' argument that issues of credit are matters that properly lie within the province of a court.

Whether all forms of credit judgments permissible

393 It follows from what I have said that an argument that a medical panel constituted under the Wrongs Act is forbidden from making any form of credit judgment cannot be accepted. However, the exceptions Mr Burns proposed to the rule for whose existence he contended suggest a difference between credit judgments that involve the application of medical knowledge, and credit judgments that do not. Is a medical panel convened under the Wrongs Act forbidden from making a judgment of the latter sort?

394 The two exceptions Mr Burns proposed when questioned as to whether acceptance of his argument would mean that a panel is bound to accept anything a claimant tells it upon examination were as follows. First, a panel may "go behind" what a claimant tells it where there is evidence to say that the claimant's assertion is "totally incorrect", in the sense that it "could not be correct" as a matter of medicine. Second, a panel might make a judgment about the veracity of a complaint where the issue is whether the claimant is suffering an impairment at all. If, for example, a claimant were to report suffering certain symptoms in the absence of any objective evidence of a medical condition responsible for those symptoms, a panel might discount what a claimant told it.

395 Mr Burns failed to articulate the basis for the exceptions he proposed. Further, the first of those exceptions was inaptly expressed. Assuming that Mr Burns intended by the expression "totally incorrect" to describe a state of affairs rendering it very unlikely that what a claimant was saying was accurate, a court would need to embark upon an evaluation of the merits of a panel's decision in order to determine whether or not the proposed exception applied in a given case - and to do so in an area outside its institutional competence. If, instead, Mr Burns meant that the other evidence before the panel must be such that the panel can be certain that what a claimant has told it is incorrect, the exception is chimerical, because it is difficult to imagine situations in which medical knowledge will enable a panel to be anywhere near sure that what a claimant tells it about his or her symptoms is inaccurate.

396 However, the exceptions proposed appear to have been intended to illustrate a distinction between more-objective "medical evidence" on the one hand and less-objective credibility evidence on the other. Where the medical evidence before the panel - say, the results of tests and findings upon examination - is such that the panel considers a claimant is mistaken or lying when he or she says something, a panel need not act on what the claimant says. Compare the present case, where, on CD's argument, the panel made the impugned judgment on the basis of inconsistent statements CD was reported to have made to others on previous occasions. Is it perhaps the case that a medical panel is entitled to discount what a claimant tells it on the basis of medical evidence, but forbidden from making what one might call a pure credit judgment?

397 The view that medical panel proceedings do not provide the ideal forum for resolving credit disputes was expressed in Bosch[282] and in Mailton.[283] In the former case, Judd J said, of the necessity for the panel to form a view about the accuracy of the worker's account:[284]

The resolution of such an issue may not often be required of a medical panel. It is an issue commonly resolved by a jury or a judge following cross-examination of the worker using the surveillance material to challenge credit. The panel may not be equipped or trained to solve such an issue, but in this case it was required to do so.

398 In the passage from Mailton extracted above,[285] Richards J referred to s 274(5) of the WIRC Act, which reflects the view that there are certain types of credit disputes that are more appropriately dealt with by a court. That provision reads:

A court must not refer a medical question if it appears to the court that the formation of an opinion by a Medical Panel on that medical question would depend substantially on the resolution of factual issues which are more appropriately determined by the court than by a Medical Panel.

399 Section 274(5) finds no equivalent in the Wrongs Act.

400 With one exception, the courts in the authorities discussed above considered that medical panels were entitled to make credit judgments involving the application of medical knowledge. In Bosch, the credit judgment the panel was invited to make was one based on surveillance footage and the worker's presentation on examination. Medical professionals might be thought to have some expertise in biomechanics, and in making judgments based on the affect of a person who claims to be suffering a mental illness. Likewise, it might be thought that medical practitioners are better placed than the courts to form opinions of the kind under consideration in Khan and Mailton - medical practitioners may be able to draw inferences from descriptions of pain and other sensations and answers to questions about responsivity to certain forms of treatment that courts may not. Another example is furnished by George v Nisselle,[286] to which reference was made above - a panel that disbelieves what a person says about his ability to use his hand on the basis of a physical examination of skin thickness, range of motion and arm musculature acts on the basis of medical experience and expertise.

401 The exception to which I referred earlier is the case of Kamener, which concerned a conflict of histories. While it is not entirely clear from the reasons of Williams J what material the panel in that case had before it, it appears that the question that arose fundamentally involved reconciling conflicting versions of past events. Further, her Honour's statement that the panel's reasons did not explain "the extent to which [it] accepted the worker's assertions and the various histories given by him or relied upon other material of a more objective nature in reaching its conclusions"[287] implies that the panel would have been entitled to come to a conclusion based purely on the resolution of conflicting accounts the worker had given different doctors.

402 Since Kamener was decided, the Court of Appeal has emphasised that the function of a panel is to provide an "expert opinion" on a "medical (not legal) question[]",[288] "applying its own medical experience and its own medical expertise".[289] Compare Judd J's remark in Bosch that the issues before that panel in that case "were not simply questions to be answered by bringing to bear medical expertise and experience".[290] One might think, then, that there is something to be said for the view that a panel ought to take a claimant at his or her highest when a disputed factual question arises whose resolution involves a credit judgment absent any application of medical knowledge or experience. However, having considered the matter, I am (somewhat reluctantly) of the view that no such distinction may be drawn.

403 First, despite emphasising the fact that the function of a panel is to form a medical opinion by applying its medical experience and expertise, the Court of Appeal in Colquhoun stated, without qualification, that a panel "may need to decide whether the claimant is telling the truth", and emphasised that a judgment of that sort was not "in any way distinctive of the judicial function".[291]

404 Second, while the idea of a pure credit judgment is comprehensible in theory, it is difficult to imagine a medical panel making a credit judgment which involves no application of medical knowledge or experience in practice. The present case might be thought to serve as an example. The question whether CD was to be believed when he told the members of the second panel that he experienced erectile dysfunction in the period between 11 March and the TURP procedure involved consideration of inconsistent statements he was reported to have made previously. But it might also be thought that the fact that erectile dysfunction is a recognised potential complication of the TURP procedure, and that it did not appear that CD's catheterisation had done any permanent damage, render more probable the truth of the statements CD is recorded to have made to Dr Gill, the first panel and the psychiatrists on the second panel.

405 Despite the foregoing, there might be situations in which a matter of credit is so important to issues pertaining to a medical question that it would be preferable for a court to hear and resolve the credit dispute. In circumstances of that type, it might be said that the only satisfactory way in which to have the credit dispute determined would be before a court, where the usual rules applicable to the adversarial system apply, including the possibility of cross-examination of witnesses. But there appears to be no mechanism in Part VBA of the Wrongs Act for a process of that kind to occur.[292] Perhaps there should be, lest the gateway provided by Part VBA be closed unfairly.

406 The panel made a judgment of the kind I have just explained it was entitled to make. The panel did not make an explicit finding about the truth of CD's claim that he suffered from a complete lack of erectile ability from the time of his catheterisation. However, acceptance of CD's argument regarding the panel's inability to make credit judgments would have meant the panel was required to accept what CD told it about the onset of his erectile dysfunction. To my mind, from a reading of the panel's reasons, one can only infer that the panel did not accept the account CD gave to the members of the second physical panel.[293]

407 I draw that inference regardless of the fact that the panel did not make a positive finding that the opposite of what CD told the second physical panel was true. The panel did say this:

The Panel also considers [CD's] symptom[] of ... erectile dysfunction following a transurethral resection of his prostate [is a] recognised potential complication[] of that procedure.

408 Insofar as the panel uses the possessive ("[CD's] symptom[]", "his prostate"), thereby identifying the operation performed on CD and his case of erectile dysfunction, it might be thought that the quoted passage implies that CD's erectile dysfunction "follow[ed]" the procedure he underwent. However, equally open is the inference that the passage simply reflects an attempt to combine three propositions, namely (1) that CD was suffering erectile dysfunction, (2) that CD had previously undergone a TURP procedure, and (3) that erectile dysfunction is a potential complication of that procedure. At least when considered in isolation, the passage does not provide an appropriate basis for an inference that the panel made a positive finding that the converse of what CD told the members of the second physical panel was true.

409 Likewise, I would draw the inference that the panel did not accept what CD told it even were it not possible to infer that the panel concluded positively that the TURP procedure caused CD's impotence, rather than concluding only that the catheterisation did not. Both Mr Burns and Ms Spencer construed the panel's reasons in the former way. And, for the following reasons, I consider that construction correct.

410 First, the passage from the panel's reasons I quoted above might of itself be thought to imply that CD's erectile dysfunction is a complication of the TURP procedure. If one were to take out the word "potential", it would read, "[CD's] symptom[] of erectile dysfunction following a transurethral resection of his prostate [is a] recognised ... complication of that procedure". Needless to say, the word "potential" is there and, as I have said already, the passage is ambiguous. But there are more reasons.

411 Second, the panel was at pains to make clear that CD's extant prostatic condition "ultimately warranted referral and consideration for a [TURP], regardless of the episode of traumatic catheterisation". On one view of things, there is no reason why the panel would want to make clear that CD's catheterisation did not result in the need for a TURP, unless it believed that the TURP caused his impotence. But it might also be thought that the panel was merely of the view that the TURP might have been the culprit for CD's erectile dysfunction, and that it made the observation that the need for the TURP arose independently of the catheterisation in an act of contingency planning, intuitively unlikely though that may seem.

412 Third, s 28LL(3) requires a panel to "disregard any impairment ... which is established by evidence to have resulted from a cause other than the relevant injury".[294] If the effect of s 28LL(3) were that an impairment can be disregarded as unrelated only where it is established to have resulted from an identified cause other than the claimed injury, then the only candidate in the present case would be the TURP. There is something to be said for the view that the panel's reasons should be construed conformably with the law in the case of ambiguity. I did not invite submissions on either of those two questions, however, and so I express no concluded view on this point.

413 Fourth, the view that one would be speculating were one to hypothesise that the panel might have been of the view that some unknown and unidentified third suspect, lurking in the shadows - that is, not the catheterisation or the TURP - might have been the culprit for CD's erectile dysfunction, in circumstances where the panel says nothing in its reasons expressly to that effect, has much to commend it.

414 The reason I would draw the inference I have even absent conclusions that the panel considered that CD's erectile dysfunction set in after the TURP and that the TURP was the cause of his impotence is because it is unnecessary to do so. Allow me to explain.

415 It may be accepted that the panel at the very least considered that the TURP procedure may have caused CD's impotence. Contrary to CD's submission, there is no necessary inconsistency between the temporal coincidence of CD's catheterisation and the onset of his erectile dysfunction on the one hand and a finding that the former did not cause the latter on the other. Nor is there a necessary inconsistency, as a matter of logic, between the proposition that CD did not experience an erection in the period between his catheterisation and the TURP procedure and the proposition that the TURP procedure is responsible for his permanent erectile dysfunction. However, it seems to me that, as a matter of general experience, there is a tension between CD's claim that he experienced frequent spontaneous erections and had regular sexual intercourse until his catheterisation, at which point in time he stopped experiencing erections altogether, and the conclusion that the culprit for his erectile dysfunction may have been an operation he underwent almost three months later. Put another way, it seems inherently unlikely that the TURP procedure was the cause of CD's impotence, yet that CD suddenly went from having normal erectile function to having complete erectile dysfunction three months before that.

416 That tension, together with the following two matters, leads me to conclude that the panel did not accept what CD told it about the onset of his affliction.

417 First, the panel referred to CD's inconsistent statements vis-à-vis the onset of his erectile dysfunction at three points in its reasons, each time pointing out the inconsistency. It is difficult to see what relevance the fact of the inconsistency between CD's previous statements have to anything other than his credit on the question of when he began to experience erectile dysfunction.

418 Second, contrary to the submission of Ms Spencer, the fact that the panel did not refer to the timing of onset in the section of its reasons that contained its analysis does not suggest that the panel did not make a credit judgment. I infer from the fact of its repeated references to the question of the timing of onset of CD's erectile dysfunction in its reasons that the panel clearly regarded the issue as relevant.[295] The fact that the panel invited submissions on the question supports that inference. I do not regard as satisfactory Ms Spencer's attempt to explain the significance of that invitation away on the basis that the panel's invitation was a perfunctory nod to its obligation to accord CD natural justice. That submission gets things around the wrong way - the reason a failure to invite submissions on the question of when CD began to suffer erectile dysfunction would have been unfair is because of the significance of the question. The fact that the panel omitted to refer to the issue in its analysis, then, rather suggests that it regarded CD as an unreliable historian in relation to that matter. If the panel decided to eschew reliance upon a relevant fact because of CD's inconsistent statements with respect to that fact, it clearly cannot be said to have accepted what CD told the second physical panel. I find that that is what happened. The submission that the panel simply "did not need to" consider the question of when CD's erectile dysfunction set in has an air of unreality to it.[296]

419 Before moving on, I note that it will be clear from the kind of credit judgment I consider it may be inferred the panel made that I do not accept Mr Burns' submission that the panel made its determination "principally" on the basis of a finding as to CD's credit. However, were it impermissible for the panel to consider matters of credit, CD would not need to prove that the panel's determination was made principally on the basis of a judgment about the claimant's credit; he would need to show only that there was a "realistic possibility" that the panel's decision could have been different had that judgment not been made.[297]

P****ART 9: WHETHER PANEL IGNORED RELEVANT MATERIAL

420 In his submissions in reply at the hearing of 19 May, Mr Burns appeared to raise a new argument for CD. The gist of that argument was that the panel had failed to consider the statement or statements of CD to the effect that he experienced erectile dysfunction in the period between the catheterisation and the TURP procedure, and that this amounted to a constructive failure to exercise jurisdiction.

421 While I am in some doubt as to whether it is proper for me even to consider the argument in light of the circumstances in which it was raised, for the reasons that follow, I do not accept Mr Burns' submission.

422 In his reply, Mr Burns referred to Karabinis v Bendrups,[298] Chang v Neill[299] and La'Brooy v Jensen,[300] which cases he submitted stood as authority for the proposition that a "fundamental mistake of fact" is capable of constituting a "constructive jurisdictional error". It was said an error of that sort had been made in the instant case.

423 The error was identified in two different ways. First, Mr Burns submitted that the panel "totally ignored what happened in [the] period between the catheterisation and the prostate operation". He subsequently characterised the error in different terms, submitting that the panel "totally ignored the fact that [CD] has given a history that he had erectile problems during that period". In light of the authorities to which Mr Burns referred, I consider that the point he was trying to make is more aptly captured by the second way in which he put his argument; that is, he intended to submit that the panel erred by ignoring factual material, namely the histories CD had given which were favourable to him.

424 In his affidavit in support of this application, CD deposes to having "made [it] clear" to the doctors on the second psychiatric panel that he experienced his final erection on 8 March 2017.[301] As will be seen, misapprehending an item of evidence might amount to a constructive failure to have regard to it. However, insofar as the argument that the panel failed to consider CD's history that he began to suffer erectile dysfunction immediately after the catheterisation is concerned, I did not understand Mr Burns to be arguing that the panel's error lay in misapprehending what CD told the members of the second psychiatric panel about the onset of his erectile dysfunction. Rather, I understood Mr Burns to argue that the panel failed to consider the history it is agreed CD gave the members of the second physical panel and/or the history he is recorded to have given Mr Snow. And, in circumstances where Ms Spencer did not have the opportunity to respond to Mr Burns' argument, much less to cross-examine CD on the contents of his affidavit, I do not propose to consider an argument to that effect.[302]

425 In the course of making his argument, Mr Burns also referred to Kamener v Griffin,[303] in particular to Williams J's conclusion in that case that the panel erred by failing to explain how it resolved the credibility issue in the case before it. That case, he submitted, "begs the question as to whether or not it is proper for the panel to do what [it] did here and not say whether or not or what effect [the credit dispute] has had". Mr Burns went on to argue that it was "clear" that the credit issue had a "significant impact" upon the panel's determination, but that the panel's reasons had "le[ft] it hanging", and that that fact gave rise to a constructive error of the kind referred to above.

426 I will not consider this latter aspect of Mr Burns' argument further. First, Kamener concerned the duty of a medical panel convened under the Accident Compensation Act to give reasons, and not a failure to consider factual material. No such duty applies in the present context.[304] Second, insofar as this aspect of Mr Burns' argument assumes that the panel resolved the question as to CD's credit, it is inconsistent with the proposition that it failed to consider CD's statements to the effect that he began to experience erectile dysfunction immediately following 11 March.

427 Because Mr Burns only raised the argument under consideration in his reply, Ms Spencer had no opportunity to respond to it. However, earlier in the day, when she was making her submission to the effect that the panel had not made a credit judgment, I asked Ms Spencer about the significance of the fact that the panel made no reference to CD's claim that he suffered from complete erectile dysfunction in the period between 11 March and 2 June in the section of its reasons she argued contained its analysis. Ms Spencer made two points in response.

428 First, she responded to the substance of the question. Ms Spencer accepted that CD's history was "a relevant consideration". But she argued that there was no warrant to infer the panel had failed to have regard to CD's claim about the onset of his impotence because it had referred to it at several points in its reasons. The fact that the panel did not refer to the claim in the section of its reasons containing its analysis did not mean it had failed to have regard to it. So to find would be to impose the court's view of how a medical panel - an expert body - should reason to its conclusion. A medical panel can reason as it sees fit, provided its reasoning does not involve legal error. Here, the panel considered that it did not need to rely on CD's history in order to reach its conclusion.

429 Second, Ms Spencer pointed out, correctly, that the fact that the panel did not explain exactly what conclusion, if any, it reached on the issue of onset was of no consequence: a medical panel constituted under the Wrongs Act is under no obligation to provide reasons.[305]

430 As I apprehend it, Mr Burns appears to have made either or both of two arguments, namely that the panel erred:

a) by failing to consider the history or histories it is accepted CD gave to the effect that he suffered erectile dysfunction in the period between his catheterisation and the TURP procedure; and/or

b) by failing to explain how it resolved or otherwise dealt with the inconsistent histories CD was recorded to have given.

431 It is difficult to see what ground or grounds of review Mr Burns' arguments fall under. In this instance, this is perhaps explained by the fact that they appeared to have been inspired by the question I posed to Ms Spencer before lunch at the hearing of 19 May. Insofar as the argument concerns the history CD is recorded to have given the second physical panel (as opposed to the history he was recorded to have given Mr Snow), Ground (a) might be thought to accommodate it. CD's nebulous Ground (h) might be thought to support the argument, too.

Authorities on constructive failure to exercise jurisdiction

432 The authorities to which Mr Burns referred must be understood in order to determine whether there has been an error of fact amounting to a constructive failure to exercise jurisdiction in the present case.

Factual error may constitute constructive failure to exercise jurisdiction

433 It is trite that the failure on the part of a decision-maker to take into account a relevant consideration - that is, a matter whose consideration the statute under which the decision-maker acts mandates - may amount to jurisdictional error.[306] By contrast, putting to one side jurisdictional fact review and the "no evidence" ground, the process of fact-finding was "categorically off-limits from judicial review" until the decision of Robertson J in Minister for Immigration and Citizenship v SZRKT[307] "broke the old mould".[308]

434 SZRKT concerned an application for judicial review of a decision of the Refugee Review Tribunal under s 414 of the Migration Act 1958 (Cth). That section required the Tribunal[309] to "review" the decision of the primary decision-maker. The conduct of a review requires the Tribunal "to consider the claims of [a visa] applicant" - for example, a claim to have a well-founded fear of being persecuted for reasons of race in his or her country of nationality - such that "[t]he claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration", with the consequence that a failure to deal with one or more of them might constitute a failure to conduct the review required by the Act.[310] The Federal Court had previously emphasised that there was a difference between a failure to consider a claim and "errant fact finding".[311] A failure to consider a claim was "not a failure merely to attend to evidence"; it did not involve only a "failure to find a 'relevant' fact".[312]

435 Then, in SZRKT, Robertson J held that a failure to deal with a relevant piece of evidence was capable of constituting jurisdictional error:[313]

[111] In my opinion there is no clear distinction in each case between claims and evidence ... The fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error. In my opinion the distinction between claims and evidence provides a tool of analysis but is not the discrimen itself. Further, it is important not to reason that because a failure to deal with some (insubstantial or inconsequential) evidence will, in some circumstances, not establish jurisdictional error, then a failure to deal with any (substantial and consequential) evidence will also not establish jurisdictional error.

[112] ... [W]hether the Tribunal is obliged to consider a document or documents will depend on the circumstances of the case and the nature of the document. In my opinion, the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant's claims.

436 His Honour also said the following in relation to the proposition that a failure by the Tribunal to deal with a claim might constitute jurisdictional error:[314]

It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error was tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.

437 Justice Robertson went even further. His Honour was dealing with a case in which the Tribunal rejected the visa applicant's claim solely on the basis that it did not believe him. Its judgment that the applicant was untruthful was based wholly on the inconsistency the Tribunal perceived between his assertion that he had studied Persian at university on the one hand and his inability to recall any Persian words on the other. The Tribunal failed anywhere in its reasons to refer to a university transcript a copy of which it had before it on which it was recorded that the applicant had studied Persian. Nor did it raise the issue of the transcript in the course of the hearing. His Honour considered that an error of fact might constitute jurisdictional error even where the material to which it relates is only indirectly relevant to the question for the decision-maker:[315]

[I]s it the case ... that to be "relevant" it must be possible to see, in effect a priori, that the material is in terms part of the claim to be a refugee? ... If it is so, it must be because it is only the claim which the Migration Act requires to be considered and because disregarding a relevant consideration which the Migration Act requires to be considered, at least where that Act's requirements are construed to go to validity, answers the description of jurisdictional error ... In my opinion, the answer to the questions I have posed is "No" because otherwise the identification of jurisdictional error would put out of account the actual course of decision-making by the Tribunal and would proceed impermissibly by reference to categories or formulas. Although ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim.

438 Special leave from Robertson J's decision dismissing the appeal from the decision of a federal magistrate that the Tribunal's decision involved jurisdictional error was refused,[316] and it has since been cited with approval by the High Court.[317] SZRKT has been applied in a line of Federal Court authority[318] and, more recently, in decisions of this Court concerning the decisions of medical panels, three of which Mr Burns referred to. I turn, briefly, to those decisions, before setting out what I think are the key principles governing when a factual error will constitute jurisdictional error.

Victorian medical panels and constructive failure to exercise jurisdiction

439 Karabinis v Bendrups[319] concerned the decision of a medical panel constituted under the WIRC Act. The panel opined that a worker's employment was not a significant contributing factor to the condition affecting her left shoulder. The panel's reasons recorded that the worker had said that her work duties became lighter two to three months prior to suffering injury to her shoulder. The worker argued the panel had misapprehended the account she gave it - she had in fact said that her duties became heavier in the months leading up to the injury. Justice J Forrest decided the case on the basis that he was not persuaded that the panel did in fact incorrectly record the history the worker gave it.[320] However, his Honour discussed the line of authorities beginning with SZRKT, and concluded:[321]

The end result of all this, I think, is that a Medical Panel will fall into jurisdictional error if it makes a fundamental mistake of fact which goes to a central issue in determining the answer to a medical question. Minor, and perhaps moderate, errors of fact do not mean that a Panel has fallen into jurisdictional error. It is, therefore, a question of fact and degree in each case as to whether an established mistake or omission goes so far as to constitute jurisdictional error. This must be assessed in light of the ultimate decision and the basis for it, as articulated by the reasons.

440 His Honour appeared in obiter to accept that, had the panel made the factual error the worker asserted it had made, its decision would have involved jurisdictional error. He did so on the basis that the panel's finding vis-à-vis the change to the worker's duties "feature[d] prominently" in its reasons and "appear[ed] to provide one of the bases" for the panel's rejection of the claim that the worker's employment was a significant contributing factor to her injury.[322]

441 The appellant in Chang v Neill[323] argued that the associate justice whose decision was being appealed erred in holding that an error of fact will go to jurisdiction only where it is "fundamental". In the course of dealing with that argument, the Court of Appeal remarked that, though J Forrest J's analysis in Karibinis was consistent with the principles in SZRKT and the line of authority following that decision, the expression "fundamental error" was "not derived from any relevant authority" and "best avoided".[324] Their Honours summarised the applicable principles in the following terms:[325]

[A] factual error may constitute jurisdictional error if it amounts to a constructive failure to perform the statutory function conferred on the decision-maker ... 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.

442 Chang v Neill was applied to the decision of a medical panel constituted under the Wrongs Act in La'Brooy v Jensen.[326] In that case, the plaintiff brought an action in negligence after slipping at a department store in 2018. He claimed he suffered injury to his lumbar spine as a result. In 1997, the plaintiff had injured his lower back when he fell down some stairs. From 1999 until 2005, he worked full-time as a courier driver, which required him to lift loads of up to 24 kilograms. The plaintiff ceased to work as a courier driver in 2005, when his right leg was amputated. The plaintiff sought review of the decision of a medical panel convened under the Wrongs Act that his impairment did not satisfy the threshold level. The panel reached that conclusion because it considered that there was pre-existing impairment of the plaintiff's lumbar spine which it was required to disregard; it appeared to attribute the entirety of the plaintiff's impairment to his pre-existing condition.

443 The evidence before the panel can be summarised briefly. There was documentary evidence that was equivocal: the plaintiff's records contained suggestions that he had ongoing lumbar issues since the 1997 fall, but also contained statements to the effect that his lower back pain had resolved some time before the 2018 incident. Then there was the history the plaintiff was recorded to have given the panel. According to the panel, the plaintiff told it that his back continued to "play up" following the 1997 injury, that he had required ongoing physiotherapy, that he undertook water-based exercises for his back, and that his back pain had not resolved.[327] Justice Moore considered that that history, in conjunction with the (equivocal) documentary evidence, "constituted a sufficient evidentiary basis for the panel to find that Mr La'Brooy had a pre-existing impairment which was required to be disregarded".[328]

444 The plaintiff argued, in essence, that the panel's decision wanted jurisdiction because it had acted on an erroneous medical history. Justice Moore referred to Karabinis and the Court of Appeal's treatment of it in Chang v Neill, and noted that the principles as stated in the latter case governed the case before him.[329]

445 His Honour did not accept the plaintiff's evidence that he had not given the history the panel attributed to him.[330] But he appeared to consider correct counsel for the third defendant's concession that, were he to accept the plaintiff's evidence, "jurisdictional error would be made out as the Panel would not have completed its statutory task".[331]

446 Justice Moore went on, however, to find that the panel's decision wanted jurisdiction by reason of the panel's failure to advert in its reasons to the plaintiff's work as a courier driver.[332] The only material before the panel that referred to that work was a doctor's report which stated that the plaintiff started his own courier business in 2001 and worked in it until his leg was amputated. The report did not state that the plaintiff worked full-time, nor that he was required to lift items weighing up to 24 kilograms; the plaintiff gave evidence to that effect on the application. The panel failed to ask the plaintiff about that work. Justice Moore considered that "[t]he operation of a courier business implie[d] work as a driver". He held that the failure of the panel to have regard to evidence that suggested that the plaintiff undertook physical work for a prolonged period following the 1997 incident amounted to a constructive failure by it to perform its statutory function.[333]

447 Justice Moore's judgment that the panel had failed to have regard to the plaintiff's work as a courier driver appears to have been based on the fact that the panel did not ask him about it, nor refer to it in its reasons.[334] The handwritten notes of one of the panel members did include the words: "Own courier bu - 2001-06". But his Honour considered that the panel had not engaged in an "active intellectual process" in relation to the plaintiff's work as a courier driver.[335]

448 Notwithstanding his Honour's purported reliance on the principles relating to factual error expressed in Karabinis and Chang v Neill, and his characterisation of the panel's error as an "error of fact", La'Brooy is perhaps more appropriately seen as an example of a failure to take into account a relevant consideration.[336] Indeed, the expression "active intellectual process" comes from a line of authority concerning relevant considerations.[337] First, the panel was said to have erred because it failed "to actively engage with the work undertaken by Mr La'Brooy".[338] That is, the panel failed to consider an issue, rather than a "source of information".[339] Second, notwithstanding that the question whether a factual error will go to jurisdiction is answered not, as it were, through a priori analysis but by reference to "the actual course of decision-making",[340] Moore J relied heavily on the fact that s 28LL(3) required the panel to assess existing "impairment", and that the Guides, which has force of law, defines "impairments" as "conditions that interfere with an individual's 'activities of daily living', ... includ[ing] ... work activities".[341] It has been said that relevant considerations are identified "from the statute empowering the decision-maker to act rather than from the particular facts of the case the decision-maker is called on to consider".[342] Third, when assessing whether the panel's error was material, Moore J took into account the plaintiff's evidence to the Court about the nature of his work, and not the content of the doctor's report itself.[343]

Key principles on constructive failure to exercise jurisdiction

449 At the end of the day, it does not matter all that much how an alleged error is categorised. Categories are, as Robertson J remarked in SZRKT, but tools of analysis. When a matter whose consideration the empowering Act renders mandatory by express words or by implication is not taken into account, a decision-maker constructively fails to exercise its jurisdiction.[344] Similarly, a decision-maker who fails to consider or who misapprehends an item of evidence,[345] or a body of evidence,[346] might thereby fail to perform its statutory function. The ultimate question in each case is whether the decision-maker failed to perform the task the statute under which it purported to act required of it, though the route to the conclusion may be more direct in the former case.

450 Something should be said about the expression "constructive". A decision-maker constructively fails to exercise its jurisdiction where it "purport[s]" to exercise its jurisdiction, but does not in reality do so.[347] A constructive failure to exercise jurisdiction is a "substantive[]" failure to exercise jurisdiction.[348] The word "constructive" derives from the verb "construe", and not "construct".[349] It is the exercise of jurisdiction that is unreal, not the failure to exercise it, which the court infers from the circumstances. The law does not deem certain types or classes of factual error to be failures to exercise jurisdiction. This is important for two reasons. First, it emphasises the fact that whether a factual error amounts to jurisdictional error is a case-specific enquiry; it is not the case that "a decision within a category of formula is always or is never affected by jurisdictional error".[350] To say that there has been a failure to consider evidentiary material may be no more than a description or an explanation of the manner in which a decision-maker has failed to perform the task imposed on it, but it is that failure that constitutes jurisdictional error; and labels such as "failure to consider" may "provide a distraction".[351] Second, it means that a decision will be vitiated by jurisdictional error only where it can be said, in respect of an error, that it is of such gravity as to justify the conclusion that the decision-maker failed in reality to exercise its jurisdiction.[352] In the present context, then, it must be possible to say that the error is of such gravity that the panel failed, in reality, to "form and give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise".[353]

451 That general proposition notwithstanding, the authorities considering when a factual error will amount to jurisdictional error provide guidance in determining, first, whether there has been a factual error, and, second, whether it goes to jurisdiction.

452 With respect to the first question, the cases make it clear enough that, absent misapprehension of factual material (which, for the reasons given above, need not be considered here), a decision-maker will be held to have made a factual error only where there has in a real sense been a failure to have regard to the material. That a decision-maker might be thought to have given inadequate weight to an item of evidence is not to the point.[354] By way of illustration, decision-makers have been held to have failed to consider factual material in the following circumstances:

a) In SZRKT, Robertson J held that the Tribunal had given no consideration to the transcript on the basis that: (i) it failed to refer to the transcript, either in the course of the hearing or in its reasons; (ii) the Tribunal's decision was based entirely on its opinion that the applicant's evidence that he had studied Persian but did not know any Persian words was implausible (such that one would expect the transcript to have been referred to had it been considered); (iii) "there was not a skerrick of specific evidence showing that the Tribunal had given consideration to the document"; and (iv) the Tribunal's "general and formulaic" statement that it had regard to the material on the file did not suffice to negate the inference that the transcript had not been considered.[355]

b) In Minister for Immigration and Border Protection v MZYTS,[356] the Refugee Review Tribunal was held to have failed to consider material which suggested that the visa applicant was at risk of harm were he to return to Zimbabwe. The material was provided to the Tribunal following a hearing conducted in January 2011, and addressed political violence in Zimbabwe in 2010 and 2011, in the lead-up to the elections that were due to take place. In its reasons, the Tribunal referred only to reports addressing politically motivated violence in Zimbabwe up until 2009. At the hearing, it put a conclusion from one such report to the applicant. It repeated that conclusion, verbatim, in its reasons. The only reference to the more recent material in the Tribunal's reasons was a statement to the effect that the applicant had "provided additional ... information, which was said to support [his] claim". The Full Court considered that the Tribunal's reasons "suggest[ed] no consciousness of the contents of [the] post-hearing materials (as opposed to their existence)".[357]

c) In Minister for Immigration and Border Protection v SZSRS,[358] the Refugee Review Tribunal disbelieved the applicant's father's claim that the visa applicant was a Christian on the basis that the applicant's father appeared confused when he was asked to which denomination she belonged, and produced a "certificate of infant dedication" and a "membership certificate" - neither of which the Tribunal considered proved that the applicant had been baptised - in support of his claim that the applicant had been baptised. The Tribunal's reasons made "no reference whatsoever" to the letter of a Reverend Lee, which stated that the applicant's family were active members of his congregation and had been baptised. Given the centrality of the letter to the father's claims, the Full Court held that, had the letter been considered, it could readily be expected that it would have been referred to, and that the primary judge had not erred in finding that the letter had been "overlooked".[359] The Full Court considered that the inference that the letter had been overlooked was bolstered by minor inconsistencies and errors in the reasons, which suggested "a rushed and careless approach".[360]

d) The Refugee Review Tribunal in BZAFI v Minister for Immigration and Border Protection regarded as implausible the visa applicant's claim that he was wanted by the Sri Lankan authorities, which claim was central to his claim to refugee status. Included in the material which the applicant provided the Tribunal was a certified extract from the information book of a Sri Lankan police station in which it was stated that the applicant was wanted by police on suspicion of "terrorism", and that his father had been arrested in his place when police were unable to locate him at his address. The extract was referred to in the Tribunal's reasons as part of a list of documents the applicant provided, where it was (inaptly) identified as "document in support of his statements that his father was detained and questioned by the Sri Lankan authorities". That description was the description of the document the applicant's migration agent used in correspondence with the Tribunal. The contents of the document were not dealt with to any extent. Justice Rangiah considered that, where evidence, if accepted, would be "dispositive" of the Tribunal's review, a failure to deal with it in the Tribunal's reasons may raise an inference that it has been overlooked.[361] The case before his Honour was such a case: the document on its face bore out the applicant's claim and, in circumstances where the tribunal made specific findings about documents of far less significance, the absence of any reference to the content of the extract - as opposed to its existence - warranted the inference that it had been overlooked.[362]

453 With respect to the second question, the authorities make clear that whether a decision-maker's factual error amounts to a failure to perform its statutory function depends on "the importance of the material to the exercise of the [decision-maker's] function and thus the seriousness of the error".[363] It is true that the Court of Appeal in Chang v Neill re-stated the formulation from SZRKT so that the question is one of "the importance of the material to the exercise of the function and the seriousness of the error".[364] But, insofar as their Honours intended to suggest that the seriousness of the error is a separate consideration and not merely a function of the importance of the material, it is suggested that that additional consideration has no role to play in a case where material is overlooked, as opposed to misapprehended.[365]

454 The importance of the material to the exercise of the decision-maker's statutory function is assessed with reference to "the actual course of decision-making", and not in the abstract.[366] Not only the statutory context, but the "particular decision, particular reasons and particular evidence and material on which the decision is based" must be had regard to.[367]

455 Because the specific context of the decision under review is the focal point of the enquiry, previous cases are of limited assistance. Further, the authorities provide no bright line separating material that is important enough that an error in respect of it justifies judicial intervention, even in the abstract. The most that can be said is that material will be sufficiently important where it is "significant"[368] or "of central importance"[369] or "centrally relevant"[370] to the decision the decision-maker made.

456 The expression "critically relevant" was used by Robertson J in respect of the corroborative evidence at issue in SZRKT, but insofar as the adjective "critical" might be thought to connote decisiveness, it does not furnish a test, for the reason that the factual error need not be dispositive in the sine qua non sense. To be sure, had the Tribunal in that case accepted the applicant's academic record as genuine, it could not have concluded that he lied about having studied Persian, on the sole basis of which conclusion it chose to disbelieve the applicant.[371] But in BZAFI, the most that could be said about the extract was that it was "significant" because, if accepted as genuine and accurate, "it would have established that he was wanted by police, at least in 2008".[372] That fact might have gone some way towards establishing the applicant's claim, but that is all that can be said. Likewise, in Karabinis, J Forrest J considered that the error of fact the plaintiff alleged would have gone to jurisdiction had it been made, on the basis that the panel's finding that the plaintiff's work duties became lighter was "featured prominently" and "appear[ed] to provide one of the bases" for the panel's conclusion that the worker's employment was not a significant contributing factor to her injury.[373] But, on one reading of his Honour's reasons, the panel's finding that the worker's duties had become lighter in the lead-up to her injury could not be said to have been necessary to its conclusion on the question of causation.[374]

The panel did not fail to consider relevant material

Unnecessary to decide whether CD's statements centrally relevant

457 While I do not need to decide the matter, I accept that CD's statements to the effect that he began to suffer from erectile dysfunction immediately after the catheterisation are centrally relevant items of evidence. The reason I do not need to decide the matter is because, on any view of things, the panel took into account the issue of CD's history and the statements he made regarding the onset of his impotence. That should be clear already for the reasons I gave above for my conclusion that the second panel made a credit judgment. To the extent they require giving, my reasons for those conclusions follow.

458 CD's statements were centrally relevant to the panel's decision. Plainly, if CD had made statements to the effect that he started to suffer from erectile dysfunction following the events of 11 March and prior to the TURP, and the panel had made no reference to them whatsoever, its failure would have amounted to a jurisdictional error.

459 As I have already observed, it is true that CD's statements that he suffered from erectile dysfunction in the period between 11 March and the TURP procedure are not necessarily inconsistent with the lack of a causal link between his catheterisation and his impotence. But they are clearly of significance to that question, in the same way the fact that the applicant in BZAFI was wanted by police was of significance to the question whether he had a well-founded fear of persecution for a Convention reason.

460 I would reach that conclusion all the more readily in a situation where the panel expressly relied on statements made by CD suggesting that he only began to suffer from erectile dysfunction after the TURP procedure whilst ignoring statements to the contrary.[375]

461 The problem with Mr Burns' argument, however, is that there is simply no basis for the assertion that the panel failed to consider CD's statements that he experienced erectile dysfunction in the period between the two procedures. As I have observed, and as Ms Spencer pointed out, the panel referred to CD's inconsistent statements vis-à-vis the onset of his erectile dysfunction - and thereby to CD's claim to have experienced erectile dysfunction from the 11 March - at three points in its reasons.

The panel did not err by failing to explain how it resolved the credit issue

462 As we have seen, the panel did not make an express finding about CD's credit, or about when CD began to suffer from erectile dysfunction. It is also true that, while the panel invited submissions on the question of CD's inconsistent histories, it did not in its reasons consider them in any detail. However, for the reasons I give below with respect to CD's complaint about the panel's psychiatric impairment determination, the panel was under no obligation to give reasons at all and cannot be criticised on the basis that it did not explain in more detail how it resolved the issue presented by CD's inconsistent statements.

463 The final aspect of the panel's decision at which CD's original grounds of review were targeted was its conclusion in relation to the second medical question, namely whether the degree of impairment resulting from the psychiatric or psychological injury to CD alleged in the claim satisfied the threshold level.

464 CD attacked the panel's finding that he was not suffering from PTSD but from an adjustment disorder consequent on his incontinence and sexual dysfunction, the consequence of which finding was that the panel was required to disregard CD's psychiatric impairment - or at least part thereof - because of s 28LJ of the Act.

465 Four complaints were made in respect of the second panel's treatment of the second medical question in the written submissions filed on behalf of CD. First, it was argued that the panel had "failed to give proper weight" to CD's statement to the panel that "he was very unwell in Casey Hospital with blood poisoning" and that "he remembers the pain and remembers thinking still that he would die over that week".[376] Second, it was said that the second panel's finding that CD's psychiatric impairment was a consequence of his physical afflictions was "inconsistent" with that statement. Third, it was submitted that the second panel had erred by considering or giving improper weight to the finding of the first panel that CD was suffering not from PTSD, but from an adjustment disorder with mixed anxiety and depressed mood, with which finding the second panel concurred. The second panel, it was submitted, should have made its determination based solely upon its own examination and findings. Finally, CD complained that the panel did not provide adequate reasons for its finding.

466 Ground (a) appears to cover CD's argument in respect of the second medical question insofar as it alleges that the panel failed to give adequate weight to CD's report that he thought he was going to die while at Casey Hospital. Ground (b) appears to cover CD's argument insofar as it alleges that the findings of the first panel, upon which the second panel relied, were "extraneous material". None of CD's grounds appears to encompass the complaint that the panel's conclusion was inconsistent with CD's statement that he recalls fearing he would die whilst in hospital, nor the complaint that the panel's reasons were inadequate.

467 On the hearing of 19 May, Mr Burns all but abandoned his argument with respect to the second medical question, which occupies a mere three pages of transcript. Mr Burns submitted that, in essence, CD's complaint vis-à-vis the second medical question was that the panel "ignored the fact that on his history he had a life-threatening event" in concluding that he was not suffering from PTSD. Subsequently, Mr Burns submitted that the second panel erred because CD's psychiatric injury was not in fact secondary to his physical injury; rather, it was sustained directly as a result of his exposure to a life-threatening event.

468 In its written submissions, the hospital submitted, first, that failing to give "proper weight" to a piece of evidence does not constitute jurisdictional error. Second, it was argued that the question whether part of CD's psychiatric impairment arose secondary to his physical injury was a matter for its professional judgment, and that it could not be said that its finding that it did was inconsistent with CD's claim to have feared dying while at Casey Hospital. In that connection, the hospital noted that CD made other statements to the panel which provided positive support for its conclusion that he was suffering psychologically as a result of his physical afflictions. Third, it was submitted that the second panel was entitled to have regard to the first panel's findings and to give them as much or as little weight as it liked. Finally, the hospital pointed out that the panel was under no obligation to provide reasons and that, accordingly, CD could not complain that its reasons were inadequate.

469 On the hearing of 19 May, Ms Spencer sought to rely on the written submissions filed on behalf of the hospital.

470 I reject CD's argument that the panel's conclusion on the second medical question was reached in error, substantially for the reasons advanced on behalf of the hospital.

471 The first aspect of CD's attack on the panel's consideration of the second medical question has it that the panel either ignored or failed to give adequate weight to CD's statement that he thought he was going to die whilst at Casey Hospital.

472 While, as we have seen, a failure to have regard to a critically relevant piece of evidence might be capable of amounting to jurisdictional error - and whilst it would certainly be arguable that the panel had fallen into error here had it ignored CD's statement - there is no basis for CD's claim that the panel ignored his statement. In its reasons, the panel referred to the fact that CD thought he was going to die on 11 March and whilst at Casey Hospital, described how his fear of death abated once he returned home, and noted that CD denied suffering from daytime intrusive experiences or thoughts, albeit that he continued to experience occasional nightmares.

473 The answer to the second limb of the complaint, namely that that the panel did not give CD's statement adequate weight, is that it does not articulate a legal error. In her written submissions, Ms Spencer referred to the passage from Mason J's reasons in Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[377] where his Honour said, in relation to mandatory relevant considerations:

[B]oth principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations ... but that the decision is "manifestly unreasonable".

474 She also referred to Keogh J's observation in Blacker v Boss Trailers[378] that a panel is entitled to accord a mandatory relevant consideration as much or as little weight as it likes so long as it can be said that the panel engaged in an "active intellectual process" in respect of it. Accepting that those statements are applicable in the present context, it cannot be said that the panel's treatment of CD's complaints upon examination was legally unreasonable. Nor is there any basis upon which to argue that the panel failed to engage with CD's report. On the contrary, its reasons detail how CD feared dying while in hospital, and how his symptoms had abated since that time. Mr Burns' submission invites merits review - it amounts to a submission that the panel ought to have concluded that CD was suffering from PTSD in light of his report of the symptoms he experienced while an inpatient.

475 The same is true of the second aspect of the attack on the panel's conclusion with respect to the second medical question. By submitting that CD's statements to the panel are inconsistent with the panel's conclusion that part of his impairment was secondary to his physical injury, I take Mr Burns to be arguing that the panel's conclusion that CD was not suffering from PTSD was irrational in light of those statements. This Court is in no position to find that it was.[379]

476 As to the third aspect of CD's complaint, it is trite that a medical panel may inform itself as it thinks fit, including by reference to the reasons of a previous panel.[380] Insofar as Mr Burns' complaint was that the second panel gave too much weight to those reasons, I repeat the observations I made above with respect to the first aspect of CD's complaint - how much weight the panel gave those reasons was a matter for its professional judgment. I should say that, in any event, all the second panel did was to note that its conclusion "concur[red] with the diagnosis made by the previous Panel".

477 Finally, Ms Spencer was correct to point out that the panel was under no obligation to give reasons. Accordingly, no complaint may be made that the panel's reasons for concluding that CD was suffering from an adjustment disorder rather than from PTSD were inadequate.

P****ART 11: FURTHER SUBMISSIONS ON JURISDICTIONAL ERROR

478 The invitation for additional submissions I sent on 21 May posed the question whether the panel might have erred by failing to reach a conclusion as to the medical cause of CD's impairment. I asked that question specifically with reference to the following passages in the panel's reasons:

In the Panel's opinion, therefore, there is evidence of impairment from an unrelated injury or cause that is playing a part in [CD's] current urogenital system impairment that the Panel is obliged to disregard in accordance with [s] 28LL(3) ...

The Panel also considered that it is not required to make a finding in relation to the issue of whether or not [CD's] current physical medical conditions which [he] attributes to the injuries alleged in the claim were caused by the circumstances of the incident, as alleged, that gave rise to the claim but the Panel has assessed the impairment arising only from the injuries to [CD] that are potentially compensable, in accordance with the referral.

479 As we have seen, the panel was under an obligation to make a determination as to the cause of CD's impairment. Merely to observe that "there is evidence of" unrelated impairment, one might think, is not enough. Instead, in order to disregard an impairment for the purposes of s 28LL(3), the panel must positively opine that the impairment resulted from a cause unrelated to the claimed injury. Then, in the latter passage, the panel appeared to deny that it was required to make a finding as to whether CD's impotence and incontinence were caused by the catheterisation on 11 March 2017.

480 The written submissions filed on behalf of CD on 4 June were not responsive to the question posed. That is perhaps unsurprising in light of the fact that Mr Burns' primary argument on this application was that the panel had erred by making a determination as to the cause of CD's impairment.

481 In written submissions filed on behalf of the hospital, Ms Spencer submitted that the panel's reasons should be read as a whole, and that a "common sense" approach should be taken to their construction - they should not be parsed with a thirst for detecting error.[381] Read as a whole, it was submitted, the reasons showed that the panel made the causal determination required of it, for it considered that CD's impairments were variously the result of his pre-existing prostatic hypertrophy and the TURP procedure. The words "there is evidence of" followed the passage in which the panel expressed that view, and were explicable by reference to the line of authority, to which reference was made earlier in these reasons, which stresses that a panel's assessment of unrelated impairment must be based on evidence. As regards the second passage extracted above, Ms Spencer submitted that the panel was merely trying to show that it understood that its job was not to enquire into the issue of legal causation of injury.

482 It will be apparent from my conclusions above with respect to Mr Burns' argument that the panel erred in making a determination as to the cause of CD's impairment that I accept the panel made such a determination. I accept Ms Spencer's submissions. Whilst perhaps infelicitously expressed, the panel's reasons do not reveal error. And, in circumstances where Mr Burns did not seek to agitate the point, I do not consider it necessary to say anything further on the subject.

484 It is, of course, a matter for a medical panel to determine how it expresses itself in its reasons. And there is nothing wrong in stating that "there is evidence" of a particular matter.

485 In future, however, I would suggest that, if a medical panel is of the opinion that an impairment resulted from a cause or injuries unrelated to a claimed injury, it should say so in plain terms. To say merely that "there is evidence of impairment from an unrelated injury or cause that is playing a part in [a person's] impairment" is, in my view, potentially misleading, and risks suggesting a constructive failure to exercise jurisdiction. That there is evidence that an unrelated cause played a part in an impairment is not enough for the purposes of s 28LL(3). Instead, before s 28LL(3) may be engaged, the panel must be of the opinion that the impairment resulted from an unrelated cause. Or, to use Kaye J's turn of phrase in Amendola, s 28LL(3) requires a panel to "make some determination as to the cause of the impairment".[382]

486 The question in relation to which I invited CD to apply for leave to add a new ground of review on 7 September 2021 concerned apprehended bias.

487 Specifically, in my email of 7 September, I posed the question whether A/Prof Cleeve's membership of both the first and second panels might be such as to give rise to an apprehension of bias by, for example, prejudgment or interest.

488 I asked that the parties have regard to the following matters in considering that question:

a) that the first panel found, and CD disputed, that CD told it that he experienced no sexual difficulties between 11 March and 2 June 2017;

b) that the first panel found that it was "not satisfied that the degree of whole person impairment resulting from the physical and psychiatric injuries alleged in the claim will satisfy the threshold levels once the injuries have stabilised";

c) that the second panel referred to the foregoing finding by observing that the first panel "was not satisfied that the physical [and] psychiatric impairment would satisfy the threshold levels once the injuries had stabilised"; and

d) that the second panel found that the history CD gave its physical members on 28 January (of "having a complete lack of erectile ability from 11 March 2017") was "not concordant with that provided to the previous Panel when assessed in February 2019, nor that provided to the psychiatric Panel when it examined [CD] on 21 January 2020".

489 In his amended originating motion of 23 September, CD sought to add the following three grounds:[383]

The medical panel fell into jurisdictional error by:

(j) [f]ailing to perform and/or carry out its function without bias and/or a perception of bias;

(k) [f]ailing to bring an open mind to the task with which it was charged namely to answer the question "Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level";

(l) [h]aving regard to, relying on, and/or being influenced by the findings and/or observations of the first panel to the extent that its own assessment and/or determination was not made independently of that first panel's findings, and was thereby infected by pre-judgment and/or bias, or at least a perception of bias.

490 To the extent that CD's proposed additional grounds allege actual bias, they are not responsive to the question posed. Nor are they apt in this case.[384] Nor is it clear why CD sought to add three grounds, when one would have been sufficient. The question whether the panel's decision is vitiated on account of actual bias is not considered in what follows.

491 In addition to making submissions on the substantive question - that is, whether the panel's decision is affected by an apprehension of bias - the parties made submissions in relation to the question whether CD should be given leave to add a ground alleging the same, and the question whether, if there is an apprehension of bias, CD should be taken to have waived his right to object.

492 For the reasons that follow, save with respect to the issue of leave, I have decided to determine each of those questions adversely to CD.

493 Mr Burns submitted that it was appropriate for the Court to grant CD leave to add his proposed grounds, essentially on the basis that the question whether the panel's decision was affected by an apprehension of bias was an important one, in the sense that a finding that it was would result in CD's application succeeding.

494 Mr Burns further observed that, because the hospital would have an opportunity to make submissions in response, the grant of leave would not place it at any disadvantage.

495 In written submissions filed on behalf of the hospital, leave was resisted, substantially on the following grounds. First, CD's originating motion of 19 May 2020 did not include a ground alleging apprehended bias, and his legal representatives had not made a complaint of bias in any of the written submissions filed on his behalf, nor at the hearing of 19 May. Second, CD had been legally represented at all relevant times. Third, a party should be granted leave to make further submissions following oral argument only in "very exceptional circumstances".[385] Regard should be had to the overarching purpose of the Civil Procedure Act 2010 (Vic) ("the CPA").[386] Fourth, CD's proposed amended grounds failed clearly to identify the matters said to give rise to a reasonable apprehension of bias.

496 At the hearing of 10 November, however, Mr Fleming conceded that, were the Court of the view that the argument that the panel's decision was affected by a reasonable apprehension of bias was "a sufficiently good point", leave ought to be given. Mr Fleming proceeded to make submissions on the substantive question.

497 The hospital's written submissions correctly state the law. The authorities make clear that a party to litigation should be given leave to make further submissions following the conclusion of oral argument only in exceptional circumstances.[387] It is also the case that, in determining whether to grant CD leave to add a modified Ground (j), the Court must have regard to the overarching purpose of the CPA, which directs attention not only to the justice of the individual case but also to the broader public interest in the efficient use of court resources.[388]

498 In the circumstances, I consider it appropriate to consider the parties' submissions on the substantive question. There are two reasons why. First, I invited submissions on the question of apprehended bias because I considered the question was both arguable and important: a decision adverse to CD will effectively deny him rights he would otherwise have at common law.[389] Second, because the Court received substantial written and oral submissions on the question of apprehended bias from both parties, to refuse leave without considering the substance of the matter would facilitate neither the just determination of this proceeding nor broader considerations of cost and efficiency.

499 Accordingly, as foreshadowed, I grant CD leave to add a ground alleging apprehended bias, in the terms of a modified Ground (j), namely:

The medical panel fell into jurisdictional error by ... [f]ailing to perform and/or carry out its function without ... a perception of bias[.]

500 My preliminary view that the point was arguable notwithstanding, on reflection, and having considered both parties' submissions, I do not consider that the panel's decision was attended by an apprehension of bias. Before considering each party's submissions on the question, I will set out some general principles related to apprehended bias. The principles relevant to the specific forms of apprehended bias CD alleges attend the panel's decision are set out at a later point.

501 In its application to administrative decision-makers, the rule that a decision attended by a reasonable apprehension of bias will thereby be vitiated is a facet of the rules of natural justice.[390] It is trite that medical panels are beholden to those rules,[391] and that the decision of a medical panel in respect of which an apprehension of bias arises is, in law, no decision at all.[392] Where an apprehension of bias is established, no question of materiality arises.[393]

502 Bias is conventionally defined in contrast to independence and impartiality.[394] The concept of independence may be put to one side for present purposes, because CD does not allege that the second panel was vulnerable to external influence.[395] What, then, is impartiality? Impartiality has been said to denote "objectivity in the finding of facts" and "in the application of the applicable legislative criteria".[396] It is the absence of prejudice.[397] By contrast, partiality has been defined as:[398]

a predisposition or prejudice against one party's case or evidence on an issue for reasons unconnected with the merits of the issue.

503 Partiality has also been defined as:[399]

a favourable or unfavourable disposition that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess.

504 The High Court has said that "essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making".[400]

505 I labour the point because the quoted statements show that what the law of apprehended bias is concerned to prevent is the perception that a decision-maker has decided a case otherwise than in accordance with its merits.

The test for apprehended bias: A three-step enquiry

506 The test for apprehended bias asks:[401]

whether a fair-minded lay observer might reasonably apprehend that the adjudicator might not bring an impartial and independent mind to the fair resolution of the issue to be decided.

507 Applying the test has traditionally been said to involve two analytical steps. In Ebner v Official Trustee in Bankruptcy, the authors of the joint reasons said:[402]

First, it requires the identification of what it is said might lead a [decision-maker] to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding a case on its merits ... Only then can the reasonableness of the asserted apprehension of bias be assessed.

508 The tail end of the passage extracted from Ebner suggests the existence of a third step, namely, an assessment of the reasonableness of the fair-minded lay observer's apprehension. In Isbester v Knox City Council,[403] Gageler J articulated a three-step inquiry, the third step involving "consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way". Recently, in CNY17 v Minister for Immigration and Border Protection,[404] Kiefel CJ and Gageler J set out the relevant inquiry in the following terms:

Establishment of an apprehension of bias on the part of the [decision-maker] ... requires the taking of two essential steps: first, identification of the factor which it is postulated might have led the [decision-maker] to have decided the [question] otherwise than on an independent and impartial evaluation of the merits; and, second, articulation of how that factor might have led the decision-maker to have decided the [question] otherwise than on an independent and impartial evaluation of the merits. Taking those two steps is necessary to provide the foundation for the third and critical step in the application of the bias rule. That is the step of assessing whether the fair-minded lay observer might reasonably apprehend in the totality of the circumstances that the articulated departure might have occurred.

509 Although the test is one of "double might",[405] an apprehension of bias must be "firmly established".[406] That expression does not identify a standard of proof; instead, it makes clear that the test will not be satisfied by "a vague assertion of suspicion".[407] What it means for an apprehension of bias to be "firmly established" is given some content by the remarks of Kiefel CJ and Gageler J in CNY17, where their Honours considered that the fair-minded lay observer might apprehend that a decision-maker might be biased where he or she "would entertain as realistic the possibility" that the factor which it is postulated might cause a decision-maker to stray from the course of decision-making in accordance with the merits in fact will or did so.[408]

Whether a decision is vitiated by apprehended bias is a context-specific enquiry

510 The content of the requirements of natural justice in their application to a decision depends upon the statute under which that decision was made, and, more generally, to the circumstances of the particular case.[409] What that means for present purposes is that whether a fair-minded lay observer would apprehend bias in a particular case must be considered in light of the totality of the circumstances that obtain at the time the question arises, including the factual, legal and statutory contexts of the decision, the nature of the decision, any reasons given for it, what is involved in making the decision, and the identity of the decision-maker.[410] The statute under which the (purported) decision was made is the starting point of the inquiry; it is not correct to try to divine the applicable rules from the corpus of case law and then to treat the statute as a having the effect of "qualif[ying]" that prima facie approach.[411]

511 Because a court's assessment[412] of whether a decision is vitiated by apprehended bias is mediated through the concept of the fair-minded lay observer, the observer is considered to have a detailed knowledge of the factual and legal contexts of the decision.[413] That context includes not only the facts of the case and the black letter law, but extends to knowledge of practice and process.[414]

512 In Webb v The Queen,[415] Deane J identified four "distinct, though sometimes overlapping, main categories of case" in which an apprehension of bias might arise. Three of those categories are potentially relevant here:

a) Disqualification by interest: This category of case covers situations where a direct or indirect interest a decision-maker has in a decision gives rise to an apprehension of bias.

b) Disqualification by conduct: This category consists of cases where the conduct of a decision-maker, either in the course of the decision-making process or outside it, gives rise to the requisite apprehension. Cases where it is alleged the decision-maker prejudged the question the subject of the decision are cases of this kind.

c) Extraneous information: In some cases, knowledge by the decision-maker of irrelevant and prejudicial fact or circumstance has been considered to give rise to an apprehension of bias.

513 Before turning to the issues arising in the present case, it is necessary to say something about the principles of apprehended bias in their application to administrative decision-makers made up of multiple members. Does what Spigelman CJ referred to as "the rotten apple in the barrel test"[416] apply to collegiate decision-making bodies?

514 In McGovern v Ku-Ring-Gai Council,[417] Basten JA expressed the view that, where an apprehension of bias arises in respect of one member of a collegiate body, even if that member be in the minority in that regard, the decision of the body will thereby be vitiated. His Honour justified his approach on the basis that to enquire into the role in fact played by the member in respect of whom the apprehension arises would be to ask whether a breach of the rules of natural justice was material.[418]

515 Justice Campbell was content to assume, without deciding, that the approach advocated by Basten JA was correct.[419]

516 Chief Justice Spigelman advocated a different approach.[420] His Honour began by making the observation - which is of central importance for present purposes - that the relevant bias which the independent observer might reasonably apprehend is that of the statutory decision-maker, and not that of the individuals comprising it.[421] The party alleging bias must articulate the connection between the circumstance it is said gives rise to the apprehension and the possibility of departure by the decision-maker from the proper course of decision-making.[422] Whether an apprehension arises in respect of such a body "must depend on the circumstances of the statutory regime and of the case".[423] I will not rehearse his Honour's justification for that approach here.[424]

517 The Chief Justice did, however, make the point that in a case where the alleged apprehension arises by reason of a conflict of interest "the independent observer might reasonably believe that the influence on the others of the person(s) who manifested bias ... could well go beyond the usual process of internal debate".[425] His Honour continued:[426]

[40] ... However, the pre-judgment situation is not necessarily, indeed not usually, of that character.

[41] A person who has come to a firm opinion, albeit on a pre-judgment basis, but not to the degree to become a party in substance, will often seek to convince others to adopt his or her view. However, that does not imply that s/he will do so by other than rational and relevant argument. Questions of fact and degree are involved which make it difficult to apply a rotten apple test to a pre-judgment case ...

518 To those remarks, he added the qualification that "[i]t is necessary to allow for special cases, for example, when a particular member of a collegial body has, or has had, particular influence on the other members".[427] I note that Spigelman CJ did not appear to be endorsing a facultative rotten apple test that applies in cases of bias by reason of interest; rather, the point he sought to make was that, in such cases, it will be easy to see how the interest asserted might cause the entire decision to miscarry.

519 That interpretation of his Honour's reasons is consistent with the approach taken in the more recent decision in Isbester v Knox City Council.[428] In that case, the High Court quashed the decision of a council official to make an order for the destruction of the appellant's dog on the recommendation of a three-member panel, one of whose members had a conflict of interest by virtue of having prosecuted the appellant for offences under the Domestic Animals Act 1994 (Vic), a conviction on one of which offences was a precondition to the making of the order.

520 Justices Kiefel, Bell, Keane and Nettle did not consider whether there existed any doctrine of general application to the effect that the decision of a collegiate body will suffer for the sins of one of its members. Rather, they considered that the respondent council's decision was vitiated because the presence of the officer with the prosecutorial interest - an interest their Honours considered substantial - might have inhibited and affected the deliberations of the other members.[429] Their Honours also considered relevant the fact that the officer who had the interest was a person of influence[430] - among other things, she had been the "moving force" behind the investigation and the prosecution, arranged for the convening of the panel, provided the panel members with copies of her notes and other material, "participated fully in the decision-making process of the panel", and drafted the nominal decision-maker's reasons.[431] Further, her experience and her knowledge of the relevant legislation meant that "her views would carry considerable weight".[432] In other words, their Honours were not content to rest their decision simply by reference to the fact that the mere presence on a decision-making body of a person with a strong interest might affect the deliberations of his or her colleagues; they looked also to that person's knowledge, experience and involvement.[433]

521 In a concurring opinion, the remaining member of the Court, Gageler J, helpfully suggested a reformulation of the test for apprehended bias in application to the decisions of collegiate bodies:[434]

[58] To accommodate a multi-stage decision-making process, or a multi-member decision-making body, the test for the appearance of disqualifying bias in an administrative context might sometimes more usefully be stated in a form which focuses on the overall integrity of the decision-making process. The test in that alternative form might be stated as whether a hypothetical fair-minded observer with knowledge of the statutory framework and factual context might reasonably apprehend that the question to be decided might not be resolved as the result of a neutral evaluation of the merits ...

[60] Where the factor identified as the first analytical step concerns one person who is a participant in a multi-stage decision-making process or in a multi-member decision-making body, the second analytical step can be seen to divide into two elements: articulation of how the identified factor might affect that person individually, and articulation of how that effect on that person individually might in turn affect the ultimate resolution of the question within the overall process of decision-making. It has accordingly been emphasised that, if an appearance of disqualifying bias is hypothesised to have resulted from conduct or circumstances of a person who is not the ultimate decision-maker, "then the part played by that other person in relation to the decision will be important".[435]

522 Once it is understood that the immediate object of the question whether a decision is tainted by an apprehension of bias is the decision-maker or the decision-making process, and not the member in whose interest or conduct the apprehension finds its origins, the question whether the bias of a member may be attributed to the decision-making body becomes irrelevant. In the present case, then, the question is not whether an apprehension of bias arises in respect of A/Prof Cleeve, and consequently what the implications of an affirmative answer to that question would be for the panel's decision. Rather, the question is whether an apprehension of bias arises in respect of the panel.

523 On behalf of CD, the argument that an apprehension of bias affected the panel's decision was put on two bases. The first, as I apprehended it, was that A/Prof Cleeve had an interest in the decision because his involvement with the first panel rendered him, as it were, a witness in the proceedings before the second panel.

524 The second version of CD's argument was that the second panel's decision was vitiated by an apprehension of bias by way of prejudgment because A/Prof Cleeve had by the time of the first panel's decision formed the view that CD's impairment would not satisfy the threshold level once his injuries had stabilised. To the extent that CD argued that the fact that the second panel impermissibly had regard to the reasons of the first panel, which reasons it was submitted the panel had no power to give, indicated prejudgment on the part of the second panel, the principles relating to bias by receipt of extraneous information become relevant, too.

525 In what follows, I recapitulate the parties' submissions, before considering whether the decision of the second panel is vitiated by bias arising by way of interest, pre-judgment or the receipt of extraneous information.

526 Mr Burns put CD's first argument in the following way. A/Prof Cleeve was a member of the first physical panel, which recorded a history that CD did not experience erectile dysfunction until after the TURP procedure. The second physical panel, of which A/Prof Cleeve was a member, rejected the history CD gave it, namely that he suffered impotence from the time of the catheterisation onwards. Mr Burns conceded that the second panel was entitled to have regard to the first panel's reasons, as it did, but emphasised that A/Prof Cleeve himself was a party to both determinations. The second panel's decision was based "principally, if not entirely" on that credit judgment, because there was no other evidence for its determination, over and above its opinion that erectile dysfunction is a recognised potential complication of the TURP procedure. Further, its decision was made in circumstances where CD made clear to the second physical panel that he had suffered erectile dysfunction from the time of the catheterisation, where Mr Snow's report recorded a history consistent with that given by CD, and where the CT scan of 15 March 2017 - or rather Mr Snow's interpretation of it - supported the hypothesis that the catheterisation caused his erectile dysfunction.[436] That determination, the argument went, was unreasonable. The fair-minded lay observer might apprehend that that unreasonableness was "indicative of an attitude which is biased".

527 I should say at this point that I do not accept Mr Burns' argument, which he did not develop in any detail on the hearing of 10 November, as expressed. It will be apparent from my rejection of Mr Burns' argument that the panel's decision was speculative that I do not accept that it can be characterised as unreasonable. There was ample evidence upon which the panel could properly make its finding, and the fact that there was some evidence that might have justified a different finding does not serve to make the panel's decision unreasonable. Moreover, as we have seen, establishing an apprehension of bias requires the identification of some factor that might lead a decision-maker to make its decision otherwise than in accordance with its merits. Unreasonableness, to the extent it is relevant at all,[437] will be of subsidiary importance. It will further be apparent from what I have said already that I am not of the view that the panel's decision was based principally on a determination as to CD's credit. And, more fundamentally, as I have said, the path of reasoning actually employed by a decision-maker is not relevant to determining whether an allegation of apprehended bias is made out.

528 However, it remains to consider the question whether a fair-minded lay observer might apprehend that A/Prof Cleeve's being a member of both panels and having twice examined CD, at the first of which examinations CD was recorded to have made a statement about the onset of his erectile dysfunction which was inconsistent with that he made to the subsequent panel, to which panel he then made a submission disputing having made that statement, might have led the second panel to make its decision otherwise than in accordance with its merits by effectively constituting A/Prof Cleeve a witness in the second hearing, in which he was simultaneously an adjudicator of factual matters.[438]

529 Mr Burns developed his second argument, which concerned apprehended bias by way of prejudgment, in greater detail. That argument went as follows. The first panel's certificate and reasons disclosed a conclusion that "when stabilisation occur[red] ... the impairment ... [was] not going to reach the threshold". A/Prof Cleeve was a member of the first panel, and it could be inferred that the first panel's reasons reflected his views. Accordingly, it was clear that A/Prof Cleeve had prejudged matters. Not only had he formed a view about the issues the second panel was required to determine at the time of the first panel's decision, but indeed the first panel's reasons "indicate[d] a closed mind" on the part of A/Prof Cleeve.

530 Mr Burns relied on three matters in support of his contention that the panel's determination was attended by an apprehension of prejudgment.

531 The first was the fact that the second panel relied only on its determination about the onset of CD's erectile dysfunction and the fact that erectile dysfunction is a recognised potential complication of the TURP procedure in reasoning to its conclusion. That was said to show that the panel did not discharge its obligation to give genuine consideration to the question for its determination, which indicated a preconceived view about the merits of CD's case. It will be apparent from what I have said already that I do not accept the assertion that the panel's determination was based solely or primarily on any finding about the time of onset of CD's erectile dysfunction. Nor is there any substance in the complaint that the only other matter the panel had regard to was the fact that erectile dysfunction is a recognised potential complication of a TURP: the absence of any evidence of damage to CD's urethra was clearly considered important. Moreover, as we shall see, while Mr Burns sought to characterise the panel's reliance on the fact that erectile dysfunction is among the potential side effects of a prostate resection as if it were some sort of statistical fig leaf behind which to conceal its true reasoning, or perhaps the lack thereof, it was entirely proper for the panel to rely upon its medical knowledge in that respect. I will say nothing further in that connection.

532 The second matter was that s 28LZG of the Wrongs Act does not require a medical panel to indicate what it thinks the outcome of a further medical assessment will be when it states that it is unable to determine the medical question because the claimant's injury has not stabilised and fixes a time for further assessment under subsection (6). Compare subsection (5), which provides that, if a medical panel is unable to determine the medical question because an injury has not stabilised, but it is satisfied that the degree of impairment resulting from the injury will satisfy the threshold level once it has stabilised, the panel may certify in writing to that effect.

533 On the proper construction of s 28LZG(6), Mr Burns sought to argue, a medical panel has no power to state, in respect of an injury that has not stabilised, that the impairment resulting from it will not satisfy the threshold level once it has. The fact that the first panel impermissibly did so in the present case was said to indicate prejudgment. It was not explained how the fact that the first panel was not legally authorised to do what it did was relevant to the question of prejudgment. In light of Mr Burns' concession that the second panel was entitled to have regard to the reasons of the first panel, it might be thought that the submission was that the fact that the panel came to a conclusion about the cause of CD's impairment in circumstances where the Act did not authorise it to do so was relevant because it showed that the prejudgment had been formed by A/Prof Cleeve outside the confines of the decision-making process provided by the Act.[439] However, in response to a question from the bench, Mr Burns subsequently submitted that, if it was beyond the power of the first panel to indicate that CD's impairment would not satisfy the threshold level once his injuries had stabilised, then that "would indicate that the [second] panel should not have had regard to it". On one view of things, then, CD was complaining about the fact that the second panel took into account information which it should not have.[440]

534 The third matter was the fact that the panel, after it invited submissions in relation to CD's inconsistent histories, failed to ask for further material or to take any other further action, and that its reasons did not disclose any further consideration of the question.

535 Apparently addressing himself to the consequential question of whether, if an apprehension of prejudgment arose in respect of A/Prof Cleeve, the relevant apprehension arose in respect of the second panel as a whole, Mr Burns pointed out that A/Prof Cleeve was the specialist on the second physical panel and had been a consultant to the first panel. His views, it might be thought, would carry special weight.

536 The hospital dismissed CD's argument that an apprehension of bias by way of interest arose. The second panel was entitled to have regard to the first panel's reasons, so the second panel's awareness of the content of the first panel's findings was not an issue. All that was left, then, was the fact that A/Prof Cleeve attended the first panel's physical examination of CD and might be inferred to have perceived directly what CD said about the onset of his impotence.[441] That fact could not provide any basis for an apprehension of bias. In that connection, Mr Fleming pointed out that it was "not unusual" for a panel constituted subsequent to a certification under s 28LZG(6) to have members in common with the panel that made that certification, and that the Act "on its face seems to assume that ... all the members can be empanelled again". I note that the hospital also responded to Mr Burns' argument (which I have dismissed as irrelevant for present purposes) that the panel made a determination about the onset of CD's erectile dysfunction and based its decision upon that determination.

537 Responding to CD's second argument, the hospital argued that nothing either the first or the second panel did indicated prejudgment.

538 In relation to the second panel, the hospital began by pointing out that the rules of natural justice required only that the second panel approach its task with an open mind; the panel was not required to have an empty mind. And the fact that the second panel, rather than simply adopting the history taken by the first panel, took its own history, and that it referred to the histories CD had given to Dr Gill and Mr Snow, suggested that it approached its task with an open mind. That the second panel called for submissions about CD's inconsistent histories was to similar effect. And, contrary to Mr Burns' submission, the panel's reasons demonstrated that it had considered those submissions. Further, the fact that the second panel referred to the first panel's decision "by way of background" could not indicate prejudgment.

539 Turning to the first panel's decision, properly construed, its reasons did not indicate that A/Prof Cleeve had a fixed view about whether CD's impairment would satisfy the threshold level once his injuries had stabilised. Indeed, Mr Fleming at one point went so far as to say that the first panel did not "form a view about that question at all". That argument was justified in the following way. First, it was said, all the first panel was doing in its reasons was "indicat[ing] a lack of satisfaction" that CD would clear the threshold upon further assessment, for the purpose of explaining which subsection of s 28LZG it was acting under - subsection (6) applies where a claimant's injury has not stabilised "and subsection (5) does not apply", and subsection (5) applies where the panel "is satisfied" that the claimant's impairment will satisfy the threshold level upon stabilisation.

540 Second, in any event, and contrary to Mr Burns' submission, a medical panel making a certification under subsection (6) is entitled to give reasons positively indicating that a claimant's level of impairment will not satisfy the threshold level once his or her injury is stabilised. Subsection (6) provides what a panel must do in the event that a claimant's injury has not stabilised and subsection (5) does not apply; it does not limit what opinions the panel may express in its reasons for its certification.

541 Third, it was submitted that "there could be many reasons why a panel is not able to be satisfied that the impairment from a presently unstable injury will satisfy the threshold level once it is stable". In the present case, for example, further treatment was on the cards.

542 Fourth, A/Prof Cleeve was a consultant to the first panel and was accordingly "not a member ... in the full statutory sense". The distinction between a panel member and a consultant to a panel is recognised in law.[442] It followed that the first panel's reasons were the reasons of the members of that panel, and not those of A/Prof Cleeve. While Mr Fleming initially said he did not "want to make too much" of that fact, he subsequently submitted that CD's assertion that "the reasons embody something [A/Prof Cleeve] did" was "wrong in law". Mr Fleming went on to accept, however, that on any view of things, the associate professor, on account of his urological expertise, was "likely to have been very influential in the reasons that were compiled" by the first panel.

543 Mr Fleming added that, were CD's argument about prejudgment accepted, no member of a panel could ever be appointed to a second panel following a certification in accordance with subsection (6); and, having regard to the language of ss 28LZG and 28LZGA, Parliament clearly did not intend that result.

544 Mr Fleming conceded that any apprehension of bias arising in respect of A/Prof Cleeve would be attributed to the second panel generally, stating that "the one bad apple ... infects the tree". For reasons that will become apparent, however, that concession does nothing to advance CD's case.

Consideration: Whether apprehension of bias by reason of prejudgment

545 I deal with what I think is CD's most substantial argument first. In what follows, I first set out the principles relevant to apprehension of bias by reason of prejudgment. Then, I consider the relevant features of the statutory context in which the impugned decision was made. Next, I return to some important aspects of the decisions of the two panels. Finally, I set out my conclusions on the question.

546 In determining whether a decision-maker has prejudged a question:[443]

The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion ... The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.

547 The test for apprehended bias by reason of prejudgment is the same, mutatis mutandis; that is, the question for apprehended bias by reason of prejudgment is whether the fair-minded lay observer might apprehend that the decision-maker might not have been open to persuasion.[444]

548 It follows that it will not suffice that the observer might reasonably anticipate a particular outcome:[445]

[T]he fact that a judge who has made a finding of fact adverse to a party on particular evidence is likely to make the same finding on the same evidence, is not of itself indicative of bias. It could be indicative of consistency subject to the judge having an open mind when it came to argument about the effect of the evidence.

549 In Minister for Immigration and Ethnic Affairs v Jia Legeng,[446] Hayne J said:

[185] Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.

[186] Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894, it was said that:[447]

preconceived opinions - though it is unfortunate that a judge should have any - do not constitute bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded.

Allegations of apprehended bias through prejudgment are often dealt with similarly.[448]

[187] In the case of a court, it will usually be self-evident that the issue, if an issue of fact, is one which ought to be considered afresh for the purposes of the particular case by reference only to the evidence advanced in that case. Other decision-makers, however, may be under no constraint about taking account of some opinion formed or fact discovered in the course of some other decision. Indeed, as I have already pointed out, the notion of an "expert" tribunal assumes that this will be done ... It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind of degree of neutrality (if any) is to be expected of the decision-maker.

550 Three observations of present relevance may be made in respect of the passage quoted. First, a decision-maker will be considered to have prejudged an issue where its mind is closed to the extent that it will disregard relevant evidence.[449] Second, a complaint of prejudgment is apposite only where the question in respect of which the complaint arises should be considered afresh. Third, an expert tribunal will not be considered to have prejudged a matter merely because it has reference to its own experience and expertise.

551 In relation to the latter point, it is worth noting the decision of Blow CJ in B v Mental Health Tribunal,[450] which concerned an appeal from the decision of a specialist tribunal to renew an involuntary treatment order. A psychiatrist on the tribunal expressed a view that the statutory criterion found in s 40(b)(i) of the Mental Health Act 2013 (Tas), namely that "without treatment, the mental illness will, or is likely to, seriously harm ... the person's health or safety", was satisfied in respect of a schizophrenic who had previously experienced suicidal ideation and had on three occasions been admitted as an involuntary patient because of her illness. The psychiatrist expressed his view generally; that is, he considered that the criterion would be satisfied in respect of a person of whom those things were true. He expressed his view firmly, to the point of ridiculing the submission of the appellant's representative.[451] The Chief Justice rejected a submission that the psychiatrist's conduct gave rise to an apprehension of prejudgment:[452]

[55] [W]hilst courts are required to consider issues afresh on a case by case basis, it can be appropriate for a specialist administrative decision-maker to come to a case with a predisposition towards a particular conclusion in particular circumstances ...

[56] ... It is unrealistic to expect any psychiatrist, or any experienced member of the Tribunal, to come to each case without any predisposition as to the circumstances in which a person's mental illness, without treatment, is likely to seriously harm the person's health or safety ... that is, as to the treatment criterion in s 40(b). In the circumstances, it was not unreasonable for the members of the Tribunal to challenge, bluntly and robustly, the submission that the s 40(b) criterion was not satisfied ...

552 Mr Burns appeared to argue that the panel's reliance on the fact that erectile dysfunction was a recognised potential complication of the TURP procedure betrayed a failure properly to consider the facts of the case, and not that its reliance on that knowledge per se constituted prejudgment. But I note that the authorities just discussed foreclose acceptance of such an argument in any event.

553 It will be recalled that bias consists in the deviation of the decision-maker from the true or proper course of decision-making.[453] McGovern illustrates that concept in relation to a claim of bias by way of prejudgment.

554 In that case, an application for planning approval had gone before the respondent council on several occasions, and had either been deferred in order that further enquiries could be made, or had failed. When the application was eventually granted, the appellants sought to argue that an apprehension arose that two of the councillors who voted in favour of the resolution might have prejudged the issue. Put shortly, the appellants' argument was based on the fact that the two councillors had formed and expressed firm views in relation to the application early on in the process, and had voted accordingly at the meetings at which the resolution had failed to pass. The appellants relied specifically on emails in which one councillor, a Mr Ebbeck, expressed "embarrass[ment]" at the fact that the matter had not already been resolved. They also relied on email correspondence in which the other councillor, a Ms Ryan, rhetorically asked "why the hell" ratepayers were paying "hundreds of thousands of dollars" for expert staff whose recommendations councillors did not heed.

555 Justice Basten had the following to say:[454]

[124] These [i.e., Councillor Ebbeck's emails] ... were described as "inappropriate". Precisely what that characterisation meant in the present context is unclear; what was missing from the material with respect to Councillor Ebbeck was some demonstration of a fixed view on his part, not based on relevant material. All that the email exchanges demonstrated was that by 16 September, Councillor Ebbeck was a firm supporter of the application ...

[125] The context demonstrated that this email was inconsequential to demonstrate pre-judgment. The matter had already been before Council on a number of occasions ... On each of these applications, Councillor Ebbeck sought to support the application, unsuccessfully ...

[128] ... [T]he fallacy underlying the [appellants'] case was that Councillor Ryan was required to keep an open mind on the merits of the application until the final meeting at which the Council determined its response. Where a councillor forms a firm view as to the appropriate course to be taken there is no reason why he or she should pretend to maintain an open mind whilst the debate proceeds. If further material is presented, no doubt it should be considered, but it will not be a demonstration of bias based on pre-judgment merely to maintain one's original position if that position was properly adopted. The evidence demonstrated two critical factors in this respect: first, Councillor Ryan's initial view was not uninformed, and, secondly, she acted on the basis that Council should vote in accordance with recommendations made by its expert officers, unless they were shown to be wrong ...

[134] ... The [correspondence] provided evidence of her approach to planning matters, demonstrating her strong support for the application which was not indicative of bias or prejudgment.

556 Later, after remarking that the only real basis that might have afforded the appellants a ground of complaint was that the two councillors had ended up becoming advocates for the applicants for planning approval, Basten JA said:[455]

Matters of controversy, where a council divides narrowly on how to decide an application, are likely to be precisely the sort of case where such conduct might be expected. It does not follow that such conduct necessarily gives rise to a reasonable apprehension of bias. The reason why it may not is that the councillor may have had ample opportunity to form a firm view of a matter, within the confines of the decision-making process, prior to such conduct.

557 In other words, his Honour considered it important that the councillors had formed their views within the proper confines of the decision-making process.[456] Further, he regarded as highly relevant the fact that there was no indication that either of the councillors, whose views were formed upon the basis of relevant material, and, in the case of Ms Ryan, a justifiable view about acting on the advice of experts, held a fixed view arrived at other than as a result of the consideration of the merits of the case.

558 Chief Justice Spigelman took a similar approach:[457]

[50] As Basten JA shows, each [councillor] formed his or her opinion after consideration of relevant facts, particularly the report by Council officers ...

[52] ... I agree with Basten JA that it is not a manifestation of pre-judgment bias to maintain a position that has been arrived at after due consideration.

[53] In Ebner (at 345 [8]), the joint judgment of Gleeson CJ and McHugh J, Gummow J and Hayne J, applied the traditional test by identifying a "first step" which their Honours expressed as requiring identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits".

[54] ... [S]o expressed, it becomes clear that the test is not contravened if an individual decision-maker has reached a view after considering the "legal and factual merits".

[61] Each told the applicant that they would support the development application, but only after they had an opportunity to assess the merits. Nothing they said was open to be interpreted as an indication that either would support the application irrespective of the merits. Nothing they said was open to the interpretation that they would not take new information into account or that they would not listen to other views. Nothing they said indicated that they would not have regard to the considerations required to be taken into account by s 79C of the Environmental Planning and Assessment Act_._

559 The same form of reasoning applied in McGovern was applied by Kaye JA in the context of a medical panel decision in Jones v Fish. In that case, his Honour considered it highly relevant that Dr Fish, one of the members of the panel that examined the plaintiff, had emphatically "expressed his concluded view about the plaintiff's injury, and the cause of it, before he had conferred with the other members of the Panel".[458] That fact was significant because s 302 of the WIRC Act contemplated that a panel would act collaboratively in developing a joint opinion, and because, in the case before Kaye JA, the panel consisted of five specialists from various disciplines who were expected to pool their expertise.[459] An apprehension of bias by way of prejudgment arose in respect of Dr Fish because he appeared to have formed a concluded view before it was proper for him to do so, having regard to the Act and the context of the decision.[460]

560 Before moving to consider the statutory context in which the apprehension of prejudgment in the present case is said to arise, I consider it instructive to make reference to an authority which both illustrates the principles discussed above, and bears a high degree of factual similarity to the present case. While I will proceed to consider the submissions made by Mr Burns on this application, it will become apparent that the decision of Lush J in Ewert v Lonie[461] itself all but forecloses CD's argument on apprehended bias by way of prejudgment.

561 In Ewert, the third defendant applied to a statutory authority for a planning permit, which was granted. The first plaintiff appealed the decision to a statutory appellate tribunal, which allowed the appeal on technical grounds. But, in its reasons, the tribunal proceeded to deal with the substantive aspects of the appeal, which it determined adversely to the first plaintiff. Among the three members of that tribunal were the first and second defendants.

562 Following the decision of the appellate tribunal, the third defendant made a second application in the same terms as the first. When the application was granted, the first plaintiff, now joined by a second, appealed to the tribunal on grounds identical to those argued before the tribunal the first time around. The material before the second tribunal was identical to that before the first. The second tribunal convened to consider the appeals was constituted by the first and second defendants.

563 The plaintiffs objected to the constitution of the second tribunal based on the fact that the first and second defendants had sat on the first tribunal and had disallowed the grounds of appeal raised again on the new appeals. The second tribunal proceeded to hear the appeals, in the course of which the proceedings in and the reasons given by the first tribunal were referred to.

564 Before this Court, the plaintiffs alleged that there was a real likelihood that the tribunal was biased.[462] Specific reliance was placed on the argument that the first tribunal's motive in giving reasons "was to discourage in advance any further appeal in relation to the matter if the technical questions were put to rights".[463]

565 Justice Lush expressed his reasons for rejecting the plaintiffs' argument succinctly:[464]

In my opinion, there is nothing in the evidence, and there is nothing even in the allegations in the statement of claim to indicate that in the result the appeal did not in fact receive a proper and correct hearing.

In my judgment, what the plaintiffs feared and still fear is that the Tribunal, before which, as far as I can tell, neither new material in evidence nor new argument was placed in the second appeal, would either follow or be persuaded by the reasons given in its earlier decision. Since the application was for a permit for the same use of the same land and the applicant was the same and one of the two objectors was the same, there can be no doubt that any observer would think it more than possible and perhaps even very likely that the same conclusions would be reached. In my opinion, however, it simply does not follow from this consideration that the appellants were entitled to feel that they were not getting a real hearing or that a reasonable man would think that justice was not appearing to be done. Every reasonable man knows that consistency in decision is one of the aims of judicial or quasi-judicial institutions, but if he is exercising his quality of reasonableness he does not suppose that a tribunal will refuse to entertain or will fail to give proper attention to a submission opposed to its former conclusion merely because it is so opposed. In this case, the reasonable onlooker might have thought that the appellants would not have much chance of succeeding, but this is not the same thing as feeling or believing that they would not get a proper hearing. It is not a characteristic of the law's reasonable man either to be irrationally suspicious of every institution or authority or to think that every cynical appraisal represents an absolute truth.

566 The following features of Lush J's decision are worthy of note. First, no new material was presented at the hearing before the second Tribunal. Second, his Honour considered that consistency was an aim of decision-making in an administrative context. Third, his Honour made the oft-made point that an apprehension that a matter will be decided in a particular way and in conformity with a previous decision does not, without more, amount to an apprehension of bias - a deviation from the proper course of decision-making is required. Fourth, Lush J dismissed the plaintiffs' complaint that the tribunal referred to the proceedings in and reasons given by the first tribunal.[465] And, finally, it was not necessary for the first Tribunal to consider the substantive arguments raised by the first plaintiff, but it did so anyway. The plaintiffs' argument that the first and second defendants sitting as the first Tribunal broadcast the message that the plaintiffs would not succeed on a further appeal with the aim of discouraging a second appeal, and that this gave rise to an apprehension of bias, evidently found no favour with the Court.

567 There are three particular respects in which the statutory context in which the apprehension of bias is alleged to arise is relevant for present purposes. The first concerns the issue of the distinction between a consultant to and a member of a medical panel. The second relates to the ambit of the decision-making process envisaged by the Act, and in particular to the purpose of a further assessment and the question of overlapping membership between successive panels. The third concerns the nature of the decision-maker, its function and the knowledge it is entitled to bring to bear in exercising that function.

568 Turning to the first relevant aspect of the statutory context, I accept the hospital's submission that there is a legally recognised distinction between a consultant to a panel and a member of a panel, and that the distinction might be regarded as salient in the present case.

569 In Gamble v Emerald Hill Electrical Pty Ltd,[466] the appellant argued that the decision of a medical panel convened under the Accident Compensation Act was bad because the panel's membership exceeded the statutory maximum of five set by s 63(4) of that Act. The panel's certificate of opinion and correspondence addressed by the Convenor to the appellant identified five panel members and two "consultants". In the panel's reasons, there was an occasional failure to distinguish clearly between the members and the consultants.

570 The Court of Appeal dismissed that argument for the following reasons. First, it observed that s 63(6A) of the Accident Compensation Act conferred immunity on a consultant engaged for the purpose of the provision of expert advice to a panel. Though that Act did not explicitly confer power on a panel to engage a consultant in the first place, the existence of such a power was "a matter of necessary implication".[467] The Court referred to clause 32 of the standing directions of the Convenor of Medical Panels as explanatory of "[t]he importance of a panel being able to engage consultants".[468] That clause provided:

The Medical Panel may, where necessary, obtain advice from a suitably qualified and experienced person who is engaged as a consultant - (for example: from a further medical practitioner, where the Panel already consists of the statutory maximum number of members; or, in an appropriate case, from an allied health professional, vocational or industrial psychologist or a provider of occupational rehabilitation services).

571 Second, it considered that the documentation referred to "made it perfectly clear that two of the seven examining doctors were consultants", and that only "an eye keenly attuned to the perception of error"[469] might perceive in the ambiguity in the reasons anything more than a "verbal slip".[470]

572 Division 2 of Part 12 of the WIRC Act applies to medical panels constituted under the Wrongs Act by virtue of s 28LZL(1) of the latter Act, which provides:[471]

Except as provided in subsection (2), and subject to any inconsistency of context or subject-matter, Division 2 of Part 12 of the [WIRC Act] applies to a Medical Panel appointed for the purposes of this Part.

573 Section 537(9) of the WIRC Act, which may be found in Part 12, Division 2, is in terms identical to s 63(6A) of the Accident Compensation Act. Clause 32 of the standing directions to which the Court in Gamble referred is relevantly indistinguishable from paragraph [44] of the Convenor's Directions as to the Procedures of Medical Panels 2015. [472] It follows that the reasoning in Gamble applies with equal force in the present context.

574 Before me, submissions were made about whether A/Prof Cleeve was a member of or a consultant to the first panel. The hospital drew my attention to the fact that A/Prof Cleeve was described as a consultant on the first panel's certificate, which read, in part:[473]

I, Dr Paul Champion de Crespigny as Presiding Member of this Panel, have discussed the referral with the other Panel Member and this is the Certificate of the Panel relating to the medical questions set out below.

575 Reliance was also placed on the fact that the first panel's reasons drew a distinction between "the Panel Members and the Consultant", and that the Convenor's letter of 18 January identified A/Prof Cleeve as a consultant.

576 While I note that the first panel's certificate included A/Prof Cleeve in the list of "members" (albeit with the word "consultant" next to his name in parentheses), I accept the hospital's submission - to make much of that fact would be to engage in the kind of pernickety analysis the Court in Gamble decided should be avoided.

577 Before addressing the significance of my conclusion that A/Prof Cleeve was a consultant to the first panel to the present case, I consider it necessary to draw attention to a matter that was not the subject of argument before me on the application. Section 537(8) of the WIRC Act provides:

If a medical practitioner on the list of members has treated or examined or been engaged to treat or examine a worker (otherwise than in his or her role as a member of a Medical Panel) he or she must not be a member of the Medical Panel examining the worker.

578 If s 537(8) is read literally, and should it apply in the context of Pt VBA of the Wrongs Act,[474] then it would seem to follow from acceptance of the hospital's submission that A/Prof Cleeve was in fact precluded from sitting on the second panel. For if he was not a member of the first panel, but a consultant, then A/Prof Cleeve will have been engaged to examine CD otherwise than in his role as a member of the first panel.

579 If s 537(8) does apply, there is good reason to find that it should not be read literally. The provision was clearly inserted in order to ensure that a medical practitioner who has treated a claimant, or who has examined a claimant in his or her capacity as an approved medical practitioner[475] or in order to provide a medico-legal opinion,[476] cannot subsequently sit on a medical panel examining the claimant.[477] It is not difficult to see why that is so - the two roles might be thought incompatible. It cannot have been inserted with the object of preventing a consultant who examines a claimant with the panel, and discusses the claimant's case with its members, from sitting on a subsequent panel. For I consider that, if it had that effect, it would be difficult to see why the legislature inserted the proviso it did. If a doctor who has previously been a participant in the medical panel process in respect of a claimant as a member is not prevented from being a member of a subsequent panel, it is difficult to see why a consultant should be. The expression "member" in subsection (8) should be read to include a consultant. I do not depart from the literal interpretation of the provision lightly. However, over and above the obvious purpose of the provision, the absence of any reference to consultants in Part 12 other than in subsection (9), upon whose cognate the Court in Gamble relied, gives me some comfort in departing from a strictly literal interpretation of the provision. I also consider it relevant that a literal interpretation of subsection (8) would have the result that a medical professional who participated in a panel's assessment qua member could participate in a further assessment qua consultant, but that a medical panel who participated in the panel process in the capacity of a consultant could not subsequently participate as a member.

580 Additionally, whatever be the application and proper interpretation of s 537(8), Mr Burns did not seek to argue that the second panel had been improperly convened.[478] Accordingly, I will not consider the point any further.

581 The significance of my conclusion that A/Prof Cleeve was a consultant to, and not a member of, the first panel is as follows. First, to the extent that, by his submission that the first panel's reasons do not "embody something [A/Prof Cleeve] did", Mr Fleming sought to make the point that the first panel's reasons are not A/Prof Cleeve's reasons, I agree. Second, however, it may be accepted that the associate professor had formed a view in relation to CD's impairment assessment by 12 March 2019, the date on which the first panel delivered its reasons. And, consistently with both Mr Burns' submission and Mr Fleming's concession, it may be accepted that A/Prof Cleeve was influential in the first panel's decision, such that its reasons are likely to reflect his views.

582 As foreshadowed, the second aspect of the statutory context that must be considered concerns the ambit of the decision-making process envisaged by the Act, in particular as it relates to the purpose of further assessment and the question of overlapping membership between successive panels.

583 It might be thought to state the obvious that the purpose of ss 28LZG(2)(c) and (6) and 28LZGA is to provide for situations where an impairment resulting from the claimed injury might abate or intensify, such that it is not possible to determine the level of the claimant's impairment resulting from the injury.[479] However, to make that observation is to say nothing about what should happen in a situation where a medical panel considers that a claimant's impairment has not stabilised but that it did not result from the claimed injury in any event. Nor does it provide any guidance as to what a panel should do in circumstances where it considers that the claimant's level of impairment has not stabilised but that he or she is not suffering from any persisting claimed injury. Common sense would seem to suggest that to require a panel to convene a second time when it has already determined that a claimant is not suffering from any persisting injury, or any impairment related to that injury, would be to sanction an exercise in futility.

584 But that is exactly what the construction of s 28LZG that appears to have been adopted by both parties to this application demands. It will be recalled that, before me, Mr Fleming argued that the first panel's expressed lack of satisfaction that CD's level of impairment would meet the threshold upon further assessment was designed to explain which subsection of s 28LZG it was acting under. The assumption underlying that submission was made express in the hospital's written submissions, where it was put that the first panel's determination "reflected the statutory requirement that the Panel arrive at one of two findings in circumstances where it formed the view that [CD's] ... condition was unstable".[480] Mr Burns' argument that s 28LZG(6) did not entitle the panel to state its opinion that, once stabilised, CD's level of impairment would not satisfy the threshold level, was consistent with that same assumption, which he did not challenge. Further, on one reading of the first panel's reasons - to which I shall turn shortly - its members adopted the same reading of the provision.

585 Contrary to that assumption, one might think that s 28LZG does not have the effect it was assumed to have. Let us take first the situation where a medical panel considers that a claimant has some impairment that has not stabilised, but that the claimed injury is no longer extant. It will be recalled that, in Amendola, Kaye J considered that s 28LZG(4) does not, indeed cannot, require a medical panel to state whether "the degree of impairment resulting from the injury satisfies the threshold level" where there is no injury.[481] Section 28LZG(6) makes no reference to "the degree of impairment resulting from the injury". However, it does provide that it applies where "the Medical Panel is unable to determine the medical question because an injury has not stabilised". The expression "medical question" is defined as the "question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level".[482] Plainly, then, the expression "an injury" refers to a claimed injury. It follows that, where a medical panel is of the view that the claimed injuries are no longer extant, s 28LZG(6) has no application. A panel in such a case is not unable to determine the medical question because a claimed injury has not stabilised. The proper course for a panel to take in such a case is the course taken by the panel in Amendola.

586 What of the situation where a panel considers that a claimant has an injury as claimed, and has some impairment that has not stabilised, but that that impairment does not result from the claimed injury? Likewise, in a case like that, s 28LZG(6) does not apply, because, in such a case, the panel will not be "unable to determine the medical question": the degree of impairment resulting from the injury will be zero. The proper course for a panel to take in a case like that will be to make a determination under subsection (4).[483]

587 It will become apparent that the proper construction of s 28LZG is relevant to whether successive panels may have members (which expression I use to include consultants) in common, to the construction of the first panel's reasons, and to the question whether, contrary to Mr Burns' submission, the first panel was entitled to express an opinion about whether CD would clear the threshold once his injuries had stabilised.

588 With all that in mind, I shall consider the question whether it is proper for a panel conducting a further assessment under s 28LZG to have a membership overlapping with that of the panel that conducted a prior assessment. For the following reasons, it is.

589 To begin with, my conclusion that the purpose of the provision for further assessment is to allow for situations where a claimant's impairment which in fact results from his or her claimed injury or injuries has not yet stabilised means that, in the vast majority of cases where a further assessment is appropriate, questions of diagnosis[484] and aetiology will already have been resolved. But it does not follow that the further assessment should be carried out by a differently constituted panel. In fact, for two reasons, the contrary is true. First, s 28LZ(2) of the Act provides that a medical panel "must act ... as speedily as a proper consideration of the reference allows". More generally, the purpose of Part VBA is to allow for an efficient determination of the threshold question whether a claimant has suffered "significant injury" within the meaning of the Act.[485] A panel constituted by medical practitioners who are already familiar with a claimant's case is more likely to be able to deal with a further assessment expeditiously. As we have seen, the content of the rules of procedural fairness must be appropriate and adapted to the statutory context.

590 Second, as the above-extracted remarks of Justices French, Hayne and Lush show, consistency is a virtue of administrative decision-making. To the extent that a differently constituted panel is more likely to reach a different decision about questions of diagnosis and aetiology, a differently constituted panel on a further assessment might be thought undesirable. It would be unintuitive if a prior medical panel's opinion that a claimant's impairment resulted from his or her claimed injury yet had not stabilised were, in the absence of any new material tending to shed a different light on the question, in danger of being replaced by a subsequent panel's opinion that, while stabilised, the claimant's impairment had nothing to do with the injury. If the reason for the further assessment is purely that the claimant's impairment might abate or worsen, then wherefore "the assumption that the [entire] question ... be considered afresh"?[486] Certainly, I would not have considered that the hospital would have had cause for complaint had the first panel been of the opinion that the traumatic catheterisation was the cause of CD's non-stabilised impairment and the second panel had determined that CD's stabilised impairment satisfied the threshold level without considering afresh the question of causation. I put to one side for the purposes of the example the reports of A/Prof Brooks and Dr Nandha, filed subsequently to the first panel's decision, as a panel conducting a further assessment will be required to consider new material that is brought to its attention.

591 The next reason I consider that overlapping membership is permissible is based on the words of s 28LZGA of the Wrongs Act and s 537(8) of the WIRC Act. I accept Mr Fleming's submission that ss 28LZG and 28LZGA appear to envisage that the same medical panel might carry out more than one assessment.[487] More specifically, s 28LZGA(4) provides:[488]

If a Medical Panel fixes a time for further assessment under s 28LZG, and at the end of 12 months after the first assessment, the Medical Panel certifies in writing that it is still unable to determine the medical question because an injury has not stabilised, the injury to the person is deemed to be a significant injury.

592 Subsection (4), by its use of the indefinite and definite article, in that order, and the words "is still unable", implies that the same medical panel may conduct the further assessment contemplated by s 28LZG.[489] Likewise, the words "otherwise than in his or her role as a member of a Medical Panel" in s 537(8), the terms of which are set out above, carry the same implication. This is no minor point. Even where the constitution of a statutory tribunal might otherwise have been held to give rise to an apprehension of bias, the fact that the legislation under which it is constituted allows for the constitution to which objection is taken may have the result that no such apprehension arises.[490]

593 Lastly, at risk of accepting evidence from the bar table, Mr Fleming (who has appeared in oodles of applications concerning the decisions of medical panels) told this Court that it is common for successive panels to have members in common. I consider it proper to take this into account, given the relevance to the present question of custom and practice.

594 The final aspect of the statutory context relevant to the content of the rules of procedural fairness is the fact that a medical panel is entitled to bring its experience and expertise to bear in answering the medical question.[491]

595 The next part of the context that must be considered in determining whether the second panel's decision was attended by an apprehension of bias is the decisions and reasons of each of the panels. In respect of the first panel's decision, it is necessary to ask first, "What could the panel decide?", next, "What did the panel decide?" and, finally, "Was the panel entitled to decide as it did?"

596 What could the first panel have done if it formed the view that CD's impairments were unrelated to the events of 11 March 2017? In light of the foregoing discussion, the first panel would have been entitled to determine the medical question adversely to CD, without the need for further assessment. The panel did not do that, however. Instead, as we have seen, it fixed a time for further assessment under s 28LZG(6).

597 But what did the first panel in fact decide? It would seem there are open at least two interpretations of the first panel's certificate and reasons. The first such interpretation is that the panel concluded that CD's impairment had nothing to do with his catheterisation, but that, because it adopted the construction of s 28LZG adopted by the parties to this application, it felt it had no choice but to fix a time for further assessment. The second possibility is that it fixed a time for further assessment because, while it was of the view that at least some of CD's impairment resulted from the 11 March ordeal, it thought that his condition might improve to the point where the level of impairment resulting from CD's claimed injury would not satisfy the threshold level.[492]

598 Were there any indication in the first panel's reasons that it considered it had the power to determine the medical question adversely to CD even though his level of impairment had not yet stabilised, I would have considered the latter construction irresistible. For, in such circumstances, the panel's decision to fix a time for further assessment would have been explicable only by reference to the fact that it was of the view that CD's impairments resulted, at least in part, from the events of 11 March.

599 But there is no such indication in the panel's reasons. And, further, on my reading of those reasons, the first panel was of the view that CD's incontinence and erectile dysfunction were wholly unrelated to his catheterisation. The relevant parts of the first panel's reasons are set out above. It suffices to observe that the first panel recorded a history according to which CD's incontinence and erectile dysfunction each post-dated the TURP procedure, went on to refer to the hospital's submission (which drew on the reports of Dr Gill and Mr McCahy, that there was a "clear evidentiary basis by which [the panel] could satisfy itself of a pre-existing [sic, unrelated] impairment"), and pointed out that the urethroscopy and cystoscopy showed no iatrogenic anatomical abnormality. The panel then said that "there is evidence [of] impairment from an unrelated injury or cause which is playing a part in his current psychiatric and physical impairment and which the Panel is obliged to disregard in accordance with [s] 28LL(3) of the Act". It concluded that it was "not satisfied" CD's injury-related impairment would satisfy the threshold level once stabilisation had taken place.

600 Although the first panel expressed the view that CD's impairments might abate as a result of his attendance at the continence clinic, it is plain from its reasons that it was "not satisfied" that his impairments would satisfy the threshold level once they had stabilised because "there [was] evidence" that they resulted from a cause other than the claimed injury. The panel did not say it was not satisfied that CD's level of impairment would meet the threshold level once his injuries had stabilised because of the possibility of an improvement in his condition. That possibility was the reason the panel considered itself unable to determine the medical question; but it was not the reason for its lack of the satisfaction required by s 28LZG(5). It will be apparent that I reject Mr Fleming's submission that there may have been any number of reasons - including the prospect of further treatment - why the panel might not have been satisfied that CD would clear the threshold once his injuries had stabilised. In parsing the panel's reference to there being "evidence [of]" unrelated impairment, two things ought to be born in mind. First, that the panel considered it was "obliged to disregard" the unrelated impairment makes clear that its reference to mere "evidence" should not be read literally. Second, the second panel - which considered that CD's impairment was unrelated to the events of 11 March - used the very same language.

601 It is clear, then, that the first panel was of the view that CD's impairments were not due to the events of 11 March. Although the first panel's state of satisfaction was expressed negatively, I consider that it is clear from a reading of its reasons that it was of the view that CD's level of impairment would not satisfy the threshold level come stabilisation. Indeed, to the extent that the panel was of the view that his bladder and urethra were free of any iatrogenic anatomical abnormality, it appears the panel was of the view that CD did not even continue to suffer from an injury. That is not to say, however, that it is not relevant to the question whether an apprehension of prejudgment arises that the panel expressed the relevant conclusion in negative terms. I will return to this point below. In line with CD's submission, and the hospital's concession, I infer that the first panel's view was shared by A/Prof Cleeve.

602 I turn now to the question whether the panel was entitled to issue a certificate under s 28LZG(6) while at the same time opining that CD's impairments were unconnected with the episode of 11 March.

603 Assuming for the moment that the construction of s 28LZG agreed upon by the parties is correct, I consider that the panel was entitled to issue the certificate and the reasons it did. That is, I do not accept that s 28LZG works to preclude a panel from specifying on its certificate that it is not satisfied that the claimant's impairment will satisfy the threshold level once his or her injury has stabilised. Nor do I accept that a panel is not entitled to give reasons to similar effect, or even in which it positively expresses satisfaction to the contrary. Let me explain.

604 Turning to the issue of the certificate, s 28LZG(6) provides that, if a medical panel is unable to determine the medical question because an injury has not stabilised and subsection (5) does not apply - that is, the panel is not satisfied that the claimant will clear the threshold once his or her injury has stabilised - then the panel "must ... certify that it is unable to determine the medical question ... and fix a time ... for further assessment". Section 28LZG(2) sets out the three options open to a panel following an assessment, one of which must be exercised. The third of those is found in subsection (2)(c), which provides for the issue by the panel of "its certificate that it is unable to determine the medical question and a statement of the time fixed for further assessment of the person under subsection (6)".

605 True it is that neither subsection (2)(c) nor subsection (6) makes express provision for the inclusion on the panel's certificate of an expression of an absence of satisfaction that a claimant's impairment will satisfy the threshold level once his or her injury has stabilised. Compare subsections (2)(b) and (5), which contemplate that, if a panel is so satisfied, it may certify in writing to that effect. But I do not consider that subsections (2)(b) and (5) provide any basis for an implication that a panel acting pursuant to subsections (2)(c) and (6) may not indicate an absence of satisfaction in that connection. Where a panel issues a certificate under a 28LZG(6), it will be apparent that it is doing so because subsection (5) does not apply; that is, it will be obvious that the panel is not satisfied that the degree of impairment resulting from injury will satisfy the threshold level once the injury has stabilised. To sanction a reading of s 28LZG whereby a panel was prohibited from making explicit on a certificate that which is necessarily implied by its issue would be counterintuitive, to say the least.

606 As to the question whether a panel issuing a certificate under s 28LZG(6) can express in its reasons an opinion to the effect that a claimant's impairment will not satisfy the threshold level once his or her injury has stabilised, I can see no reason why it should not be able to. The reasons a panel gives for its certification are separate from its certificate. While I do not consider that any implication of the kind contended for by Mr Burns exists with respect to the certificate of a panel anyway, those considerations could not work to place constraints on the content of a panel's reasons.

607 Supposing I am wrong, however, and that the first panel lacked the power to issue the certificate and reasons it did, it by no means necessarily follows that an apprehension of bias attends the decision of the second panel. I will return to this below.

608 That fact is important not just in the event that I am wrong about the effect of the construction of s 28LZG favoured by the parties on the first panel's ability to do what it did. It is important also in the event that the assumed construction of s 28LZG is incorrect. If it is the case that, on the proper construction of s 28LZG, given its view that CD's impairment was not related to the events of 11 March, the first panel ought to have determined the medical question adversely to CD, then the panel lacked the power to certify as it did. That is because s 28LZG(6) applies only where a medical panel "is unable to determine the medical question".

609 Three aspects of the second panel's decision are relevant for present purposes. The first is the opinion the panel expressed in its reasons. Like the first panel, the second panel referred to Mr McCahy's opinion that CD's catheterisation was not the cause of his urinary problems and to the finding upon cystoscopy that there was "no long term damage to the urethra" before concluding that "there is evidence of impairment from an unrelated injury or cause that is playing a part in [CD's] current urogenital system impairment that the Panel is obliged to disregard". Unlike the first panel, the second panel went on to disregard that impairment and conclude that CD's level of impairment did not satisfy the threshold level. But it seems clear that the second panel formed essentially the same view, medically speaking, of CD's predicament.

610 The second aspect relates to the manner in which the second panel expressed that opinion. Unlike the first panel, which confined itself to expressing the view that CD's impairment was not due to the events of 11 March and implying that the TURP procedure had something to do with it, the second panel explained positively that his urge incontinence was a result of his prostatic hypertrophy, while his "urinary incontinence"[493] and erectile dysfunction resulted from the TURP procedure, whose performance was rendered necessary by his prostatic condition, and not the events of 11 March. More generally, it is important to note that the second panel's reasons are its own. Its reasons are substantially longer and more detailed than the first panel's reasons, and record a history which differs in some respects to that recorded by the first panel.[494] Any references to the first panel's reasons are, as Mr Fleming submitted, purely by way of background.

611 That fact reflects the third aspect of the second panel's decision to which regard should be had, namely the process by which it was reached. The second panel examined CD for a second time, and took his history a second time. It appears that it need not have done so.[495] When it appeared to the second panel that CD had given its physical members a history inconsistent with that given to the first panel, it invited submissions in that connection, which it then said it considered.[496]

Conclusion: No apprehension of bias by reason of prejudgment

612 In those circumstances, might a fair-minded lay observer apprehend that, because A/Prof Cleeve had, in his capacity as a consultant to the first panel, formed a view that CD's impairment did not result from the events of 11 March, the second panel, on which the associate professor was the specialist physician, might not have decided the reference in accordance with its merits?

613 It should by this stage be apparent that, were the fair-minded lay observer asked the relevant question at the time A/Prof Cleeve was appointed to the second panel, the answer would be "No."

614 As we have seen, A/Prof Cleeve was properly a member of the second panel, in the sense that the Act allowed him to be on it. And the opinion he evidently had about the aetiology of CD's impairment at the time he was appointed to the second panel was formed within the confines of the decision-making process provided for by the Act. Further, and importantly, there is no evidence that the associate professor did not form his opinion after due consideration of the facts; that is, there is no suggestion that he made his decision otherwise than in accordance with the merits.

615 That is so regardless of how s 28LZG is properly construed. Contrary to Mr Burns' submission, even if it were the case that the first panel, in the circumstances, had no choice but to issue a certificate under s 28LZG(6), and if it were correct that, properly construed, that provision forbade the first panel from expressing its view that CD's impairment was not related to his catheterisation, that would not alter the fact that A/Prof Cleeve had formed a view about the aetiology of CD's impairment in the course of carrying out the function the Act required of him. It might be thought difficult to imagine a set of circumstances in which an assessment as to whether a claimant's level of impairment has stabilised could be made absent a judgment about the nature and aetiology of that impairment.

616 Alternatively, if the first panel lacked the power to certify as it did in circumstances where it was not, in reality, unable to determine the medical question, that does not change the fact that A/Prof Cleeve formed the view it is alleged amounts to a prejudgment in the course of carrying out his statutory function. If it is the case that the first panel could and should have determined the medical question adversely to CD, it would be a strange state of affairs were the second panel to be held to have prejudged that question by virtue of the fact that the first panel, rather than determining the medical question, decided to fix a time for further assessment.

617 To the extent that the way the first panel's certificate and reasons are expressed is even relevant (for, as we have seen, A/Prof Cleeve cannot be regarded as an author), the first panel did not express its conclusion emphatically; it expressed its conclusion negatively, mimicking the language of s 28LZG. It cannot be said, then, that the certificate or reasons of the first panel would give a bystander the impression that A/Prof Cleeve had closed his mind, or that he would not consider further material were it made available to him. I regard this as relevant notwithstanding the fact I consider that the first panel could permissibly have expressed itself in stronger terms. Accordingly, I reject Mr Burns' submission that the first panel's reasons indicated that A/Prof Cleeve might have had a closed mind.

618 In essence, the answer to CD's argument that an apprehension of prejudgment attended the second panel's decision is that it is not possible logically to articulate a connection between the fact that A/Prof Cleeve had formed a view about the cause of CD's impairment prior to his appointment to the second panel - which may be accepted - and the feared deviation from the course of deciding the medical question in accordance with its merits. CD's argument falls at the second hurdle presented by the Ebner two-step.

619 The conclusion I have reached is only strengthened when regard is had to what transpired after the second panel was convened. As we have seen, the only new material forwarded to the second panel supported its conclusions. That fact notwithstanding, the second panel examined CD a second time, took his history, invited submissions, considered those submissions, and authored a fresh set of reasons. I reject Mr Burns' argument that the failure of the panel to request additional information or take some other unspecified further action following the receipt of the submissions reflects a failure to consider them or otherwise gives rise to an apprehension of bias.

Consideration: Whether apprehension of bias by receipt of extraneous information

620 I have rejected Mr Burns' argument that the first panel lacked the power to express the view that CD's impairment would not satisfy the threshold level once his condition had stabilised. However, in circumstances where Mr Burns suggested that the second panel ought not to have had regard to the first panel's reasons, my view that the first panel might have lacked the power to certify under s 28LZG(6) in circumstances where it was of the view that CD's impairment did not result from the events of 11 March make it necessary to ask whether the second panel's consideration of the first panel's certificate and reasons gave rise to an apprehension of bias.

621 The receipt by a decision-maker of extraneous information may give rise to an apprehension of bias.[497] The decisive factor here is the meaning of "extraneous". In Webb, Deane J said that knowledge by a decision-maker "of some prejudicial but inadmissible fact or circumstance" might give rise to an apprehension of bias.[498] While the receipt by a decision-maker of extraneous information may result from non-compliance with a statutory duty,[499] it seems clear that information will be considered extraneous only when it is both irrelevant (or perhaps only marginally relevant) and unfairly prejudicial.[500] This should not be surprising, remembering that the test for apprehended bias requires an articulation of how the factor said to give rise to the apprehension - here, the information - might cause the decision-maker to decide the case otherwise than in accordance with its merits.

622 Over and above the claim that the first panel lacked the power to give the reasons it did, Mr Burns offered no reason why the second panel ought not to have had regard to them. While the content of those reasons did not help CD's cause, it cannot be described as irrelevant or prejudicial. The fact that the issue of those reasons might have been ultra vires is not to the point.

623 It is also worth pointing out that a power of a decision-maker to inform itself as it thinks fit, such as that contained in s 28LZ(1), will ordinarily mean that an interested party has no cause for complaint where a decision-maker has regard to certain material, provided the parties were made aware of the material and given an opportunity to comment.[501] As we have seen, CD was informed that the members of the second panel had been provided with copies of the first panel's reasons and was given the opportunity to make submissions about that fact.

624 Accordingly, I consider that, even if the first panel's certification and reasons were ultra vires, no apprehension of bias arose by virtue of the fact that the second panel had regard to them.

Consideration: Whether apprehension of bias by reason of interest

625 It remains for me to consider whether an apprehension of bias attends the decision of the second panel by virtue of the fact that A/Prof Cleeve was rendered, as it were, a witness as a result of his role in the decision of the first panel. For the reasons that follow, it does not.

626 The law governing apprehended bias by reason of interest finds its roots in the maxim that no one is to be a judge in his or her own cause, but it extends to cases in which a decision-maker has an "interest" in the matter before him or her.[502] While the concept of an "interest" has been described as "protean", "vague and uncertain",[503] reference to the authorities suggests that a decision-maker will be considered interested in a decision only where he or she can be said to have become "in substance" a party to the proceedings.[504]

627 Various forms of interest have been held to disqualify decision-makers by giving rise to an apprehension of bias.[505] For present purposes, I am concerned only with the authorities that provide support for the proposition that a person may not adjudicate an issue of fact in respect of which he is a witness.

628 In Dickason v Edwards,[506] a member of a friendly society was expelled after he was found by the judicial committee of the society to have verbally abused and threatened the district chief ranger. The district chief ranger was, by the society's rules, a member of the society's judicial committee. He was present at and presided as chairman over the hearing of the charge. The High Court held that the expelled member had been denied natural justice.

If it is incompatible for the same man to be at once a judge and occupy some other position which he really has in a case, then prima facie he must not act as a judge at all ... Whether this incompatibility exists in any particular case depends upon the facts.

630 His Honour considered relevant the fact that the district chief ranger had been a witness to the alleged conduct, and had given his account of it to the district executive, which brought the charge on the basis of his evidence.[508]

631 Stollery v Greyhound Racing Control Board[509] concerned a similar set of facts. Mr Smith, a member of the respondent board, received from the appellant an envelope containing $200 in cash, and formed the view that the appellant had tried to bribe him. He reported the matter to the board, on which he subsequently sat, and before which he gave evidence. The High Court held that an apprehension of bias attended the board's decision.

632 In those cases, however, the real reason for the tribunal members' disqualification was that each of them had become, in substance, a party to the proceeding resulting in the impugned decision; specifically, the district chief ranger and Mr Smith each simultaneously played the role of "accuser" or "prosecutor" and adjudicator.[510] This was subsequently confirmed by the High Court in Isbester, where Kiefel, Bell, Keane and Nettle JJ considered that the disqualification of the decision-makers in Dickason and Stollery was accounted for by the interest each had as "prosecutor, accuser or other moving party".[511] I note that the interest of a moving party is an interest in the outcome of the matter falling for determination, whether it be peculiarly personal, as in Dickason and Stollery, or more general, as in Isbester.[512]

633 Plainly, there is no evidence whatever that A/Prof Cleeve had any comparable interest in the proceedings before the panel. Nor is there any evidence that A/Prof Cleeve had a memory of what CD told the first panel. Much less is there any evidence that the associate professor gave the other members of the second panel his account of what CD told the first panel.[513] And, in any event, the disqualified members of the decision-making bodies in Dickason and Stollery were witnesses to acts the subject of allegations those bodies were tasked with determining; they were not merely witnesses to statements made in the course of the proceedings before them.

634 This brings me to my next point, namely that, as I have explained, the Act contemplates that successive panels may have members or consultants in common. In light of that fact, it would be a perverse result were a claimant able to complain that a panel's decision was vitiated by apprehended bias on the basis that he or she had told successive panels inconsistent things.

635 In McGovern, Basten JA explained why Councillor Ebbeck's and Councillor Ryan's firm expressions of support for the application did not amount to impermissible advocacy by reference to the fact that they had formed their views of the merits of the application "within the statutory confines of the decision-making process".[514]

636 In Isbester,[515] Gageler J explained why an investigator must not participate in the decision-making process by reference to s 5(c) of the Administrative Procedure Act 1946 (US), which reads, in part:

[I]nvestigators, if allowed to participate, would be likely to interpolate facts and information discovered by them ex parte and not adduced at the hearing, where the testimony is sworn and subject to cross-examination and rebuttal.

637 The dicta of Basten JA and Gageler J suggest that conduct or knowledge will not be probative of interest where the conduct is done or the knowledge is acquired by the decision-maker in the proper performance of its function, and not in the performance of some other, inconsistent function. In the present case, assuming A/Prof Cleeve had a memory of what was said at the first panel's examination, it cannot be that an apprehension of bias arises by virtue of the fact that he acquired certain information - namely, a statement made by CD - in the course of the proper performance of his statutory function.[516]

638 Accordingly, there is no sense in which A/Prof Cleeve can be said to have had an interest in the outcome of the second panel's decision. No factor that might have led the associate professor - and, in turn, the second panel - to decide the reference otherwise than in accordance with its merits has been identified.

639 For the following reasons, if, contrary to my opinion, the second panel's decision was attended by an apprehension of bias, I would have held that CD had waived his right to object on that basis.

640 Mr Fleming submitted that CD had knowledge of the key facts relied upon to ground his argument that the decision of the second panel was vitiated by an apprehension of bias by 18 December 2019, when the Deputy Convenor sent CD's solicitors a letter advising them that A/Prof Cleeve had been appointed to the second panel. That is, he knew that the first panel had recorded him to have said that he did not begin to suffer from erectile dysfunction until after the TURP procedure, that A/Prof Cleeve had been present at the interview during which he purportedly made that statement, and that A/Prof Cleeve was to be a member of the second panel. The time the letter was received, it was argued, was the appropriate time for CD to object to the proposed constitution of the second panel. And by failing so to object, CD had waived his right to complain of apprehended bias.

641 Further, Mr Fleming pointed out, CD did not object to A/Prof Cleeve's presence on the second panel upon receipt of Ms Goodwill's letter of 25 February 2020, nor was the issue raised in his originating motion of 19 May 2020, or at the hearing in this Court on 19 May 2021. Rather, the point was embraced only when raised as a possibility by this Court following that hearing.

642 In the circumstances, it was submitted, to allow CD to complain of apprehended bias would be both wrong and unfair.

643 Mr Burns responded to the argument that CD had waived his right to object by failing to complain prior to the second panel's decision in the following way. The rationale for the doctrine of waiver in application to the present context is that a party should not be allowed to keep the apprehended bias card up its sleeve until it becomes necessary to play it. Accordingly, waiver will result only where there is evidence that, cognisant of the circumstances giving rise to the apprehension, a party waits to see whether the relevant decision is unfavourable before deciding to object.

644 In the present case, Mr Burns argued, it was not until the publication of the second panel's determination and reasons that the circumstances giving rise to the apprehension became apparent. That is because it was at that point in time that it became clear that the second panel had made its determination on the basis of nothing more than a finding as to CD's credit and the fact that erectile dysfunction was a recognised potential complication of the TURP procedure.

645 Mr Burns did not deal with Mr Fleming's submission that, even if CD had not waived his right to object by reason of his failure to say anything following receipt of the letter of 18 December 2019, he should be denied relief on the basis that he failed to complain of apprehended bias at all until it was raised at the instance of this Court.

646 The rule against apprehended bias is subject to considerations of waiver.[517] A court may also refuse a litigant who complains of apprehended bias prerogative relief on the basis that he or she has delayed in making a complaint.[518]

647 Mr Burns was correct about the rationale for the doctrine of waiver. In Vakauta v Kelly,[519] Brennan, Deane and Gaudron JJ said:

It would be unfair and wrong if a failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her.

648 It follows that, if a party with knowledge of the circumstances giving rise to an apprehension of bias waits until the impugned decision is made, he or she will be considered to have waived any right to object on that basis.[520] For this purpose, a party will be fixed with the knowledge of his or her legal representatives.[521]