Plaintiff v First Defendants

2 By an originating motion issued on the 18th of December 2006, the plaintiff Mr Peter Dixon (the surgeon who performed breast implant surgery on the second defendant) sought to quash that determination.

3 By letter of the 4th of April 2007 to the Court the first defendant, Drs Hacker and Seward, the members of the Medical Panel, did not seek to appear and indicated that they would submit to such orders as the Court might make in the proceeding.

4 The issues which require a determination are narrow. They can be stated as follows:

(a) Whether the Panel in reaching its conclusion that took into account those parts of the second defendant's symptoms which were "secondary psychiatric or psychological impairment" and therefore fell foul of s. 28LJ of the Act which prohibited taking into account such secondary psychiatric or psychological consequences. It was accepted by both parties that if I was satisfied that the Panel had done so, then it had erred in law and its determination should be quashed.

(b) Alternatively it is contended by the plaintiff that the reasons provided by the Panel were inadequate in that they failed to identify whether the Panel had, in the process of reaching its conclusion disregarded secondary psychiatric or psychological impairment as required by s 28LJ of the Act.[1]

5 The background facts were common ground between the parties and can be stated briefly.

6 On the 3rd of September 2002, the plaintiff performed a bilateral breast augmentation procedure upon the second defendant. As a result of complaints by the second defendant concerning the asserted inadequacy of the procedure, in June of 2003 the plaintiff performed a second procedure in which he removed the implants, cleaned them and replaced them.

7 In August of 2004 Mr Moss, a surgeon, removed the breast implants implanted by the plaintiff.

8 From the time of the first procedure carried out by the plaintiff, the second defendant alleged that she experienced significant psychological symptoms which persisted up until the time of the examination by the Panel. These symptoms were described by the Panel as moderately significant post-traumatic stress disorder which cyclothymic features (in the form of a significant mood disorder) with features of depression.

Section 28LJ: secondary psychiatric or psychological injury

9 Section 28LJ appears to have its genesis in s 46B(1) of the Transport Accident Act 1986 which it replicates with one inconsequential change.

10 That provision was considered by the Court of Appeal in TAC v Lincoln.[2]

11 In Lincoln the Victorian and Civil Administrative Tribunal had held at first instance that there was no need to differentiate between a genuine organically driven physical impairment and a genuinely functionally driven physical impairment where both were the result of a transport accident. Further it held that a degree of impairment due to restriction in movement could and should take into account restrictions of movement attributable to non-organic or functionally driven factors.

12 The Court of Appeal held, by reason of s 46B(1) consideration of such psychologically drive impairment was impermissible. In particular Winneke P said as follows of s 46B(2):

"At the same time a similar sub-section was introduced into the Accident Compensation Act as s 91(2). It was the introduction of the sub-section which has produced the practice, followed by assessing psychiatrists and psychologists, of dividing the psychiatric or the psychological consequences flowing from an accident or injury into 'primary' and 'secondary'."[3] (my emphasis)

13 Pausing for a moment it is to be noted that the section does not identify "primary" psychological impairment in terms: rather it is probably more legally correct to refer to secondary and non-secondary impairment or symptoms. However for the purpose of this analysis I shall use the terms "primary" and "secondary" as they appear to be the accepted expressions in this area.

"I agree with the appellant's counsel that there is a well recognised distinction between impairment which is referable to an organic cause (that is an anatomic and/or physiological factors) on the one hand and a functional overlay on that impairment on the other. In psychiatric parlance a 'functional overlay 'is defined as "an emotional aspect of an organic disease" it may appear as "an overreaction to an illness and is characterised by symptoms that continue long after clinical signs of the disease have ended'."[4]

"Whilst one can understand the basis of the lament that genuine functionally-driven impairments should be capable of assessment and therefore compensable, that result does not seem to me to be what the Act or the AMA Guides require ... Consistently with that object, the Act has, since 1996, excluded from consideration - in determining the degree of impairment of 'the whole person' - psychiatric or psychological symptoms secondary to a physical injury."

16 Ascertaining the exact nature of the physical, as opposed to the psychiatric injury, sustained by the second defendant is not entirely easy. No medical report from any practitioner dealing with the organic side of the second defendant's injuries was provided. It may be that in this case the physical injury was the actual insertion of the implants which resulted in pain or, alternatively, damage to the tissues in the location of the area where the procedure was carried out. This is, however, mere surmise: what is clear is that the second defendant appears to have complained of pain and discomfort alleged to be consequent upon the failure of the procedure.[5]

17 Both Dr Epstein and the Panel concluded that the plaintiff suffered from post traumatic stress disorder. I think that it is generally accepted that post-traumatic stress disorder[6] does not fall within the "secondary" classification. It is a condition, which by definition, is consequent upon witnessing or undergoing a distressing event, rather than being a psychiatric reaction secondary to a physical injury.

18 Where confusion and difficulty may occur is that some of the symptoms of the post-traumatic stress disorder, ie. depression and anxiety are also symptoms which might be secondary to a physical injury.

The framework of the Act and its application in this case

19 It is important in the context of this application to have regard to a number of the provisions of the Act.

20 Part VBA of the Act was introduced as part of the second tranche of so-called tort reform.

21 In simple terms whilst the Act left unaffected an injured person's right to sue for pecuniary loss, thresholds were imposed in relation to general damages. Any injured person who seeks to recover general damages is required to establish that he or she has a "significant injury". Significant injury is determined by reference to a degree of impairment - in the case of physical injury - more than 5%. In the case of a psychiatric injury - more than 10%.

22 The manner in which the assessment of a particular impairment is carried out is set out in Division 3 of Part VBA.

23 In carrying out an assessment of impairment in respect of psychiatric or psychological injury s 28LJ reads as follows:

"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."

24 This prohibition extends to an assessment of a degree of impairment made by an approved medical practitioner under s 28LH or a determination by a Medical Panel of the degree of impairment pursuant to Division 5.

25 It is not in issue that Dr Michael Epstein, a psychiatrist, was an approved medical practitioner within the meaning of s 28LB of the Act.[7] Section 28LN provides for a certificate of assessment to be furnished by an approved medical practitioner. Section 28LN(2) reads as follows:

"(2) 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."

26 In the certificate contained in Form 1, Dr Epstein certified that the degree of impairment was more than 10%. Under the heading "Brief description of psychiatric injury" he wrote as follows:

"She has developed symptoms of a post-traumatic stress disorder characterised by recurrent intrusive thoughts about what has occurred, distress with reminders of it, increased concerns with regard to her own safety and security, hypervigilance, emotional withdrawal, and a sense of bleakness. The failure of the procedure together with ongoing pain and discomfort and discouraging results has also led to the development of a Major Depressive Disorder.[8] (my emphasis)

27 Section 28LT(2) and (3) requires "prescribed information to be provided" by the claimant and sub-s (3) sets out the type of information which may be included. The information, on its face, would seem to be intended to alert a prospective defendant in broad detail as to the nature of the claim to be brought by the claimant.

28 In this case in a document headed "Section 28LT(2) and (3) Information" the injury was described by the second defendant as follows:

"Symptoms of post-traumatic stress disorder characterised by recurrent intrusive thoughts about what has occurred, distress with reminders of it, increased concerns with regard to her own safety and security, hyper vigilance, emotional withdrawal and a sense of bleakness. The failure of the procedure together with ongoing pain and discomfort and the discouraging results which has led to the development of a major depressive disorder." (my emphasis)

29 Upon receipt of the claim the plaintiff, as required by s 28LZA of the Act put the following question to the Panel:

"Does the degree of impairment resulting from the psychiatric injuries to Ms Lucero as alleged satisfy the threshold level?" (my emphasis)

30 Division 5 sets out the procedure of the Medical Panel, when a medical question has been referred to it.

31 The Panel answered the question on the 19th of October 2006 in the following terms:

"The Panel determined that the degree of whole person impairment resulting from the psychiatric injuries to the claimant alleged in the claim does satisfy the threshold level." (my emphasis)

32 The answer was given in a certificate of determination stated to be "pursuant to s 28LZG(2)(a) of the Act."

33 The manner in which determination of the Panel is arrived at is important. Under s 28LZG(1) the Panel "must not determine a degree of impairment of a person unless it has made an assessment of degree of impairment in accordance with Division 3". It is to be noted that s 28LJ resides within Division 3.

34 Section 28LZG(2)(a) requires the Panel to provide the claimant and respondent with its determination of the medical question in accordance with sub-s (4). The terms of that sub-section reads as follows:

"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."

In other words the Panel, by law, is required to make a specific determination of the degree of impairment which when considering a psychiatric impairment would necessarily involve putting to one side any secondary impairment. It must then simply state whether the degree of impairment satisfies the threshold but cannot provide a determination as to the specific level of impairment albeit that it would have done so in the first instance.

35 The Panel conducted an examination jointly on the 22nd of August 2006. In its reasons it states that it reached its determination by reference to the documents and information referred to in Enclosure A.[9] In its history taken from the second defendant, it noted:

(a) That the second defendant stated that after the surgery and for many months thereafter, she complained of unbearable pain especially in her left breast.

(b) That she continued to complain of severe pain and stated that the surgeon suggested that the implants be removed at a cheap price.

(c) That she became depressed shortly after her first procedure as she was in constant pain, was sleep deprived and irritable and was constantly in tears.

(d) That she eventually became so distressed about her appearance and so depressed that she began to spend periods of time in bed and eventually ceased work in September 2005 and has not worked since that time.

(e) That she had a range of current symptoms including ruminating constantly about what had happened to her, being unable to look at her body in the mirror, even when she is dressed and has not been able to buy any new bras since the procedure, although she stated that she is able to fix her gaze on her face.

(f) She was unable to engage in activities or her social life.

(g) That she described severe depressive symptoms including remaining in bed for days.

"In the Panel's opinion the Claimant is suffering from a moderately severe post-traumatic stress disorder with cyclothymic features, primarily of a depressed nature, relevant to the alleged psychiatric injuries. The Panel concluded that the condition is stable.

The Panel conducted a psychiatric impairment assessment in accordance with the clinical guidelines to the Rating of Psychiatric Impairment prepared by the Medical Panel (Psychiatry) Melbourne Victoria, October 1997 and published in the Government Gazette as required by section 28LI of the Wrongs Act 1985.

The Panel concluded that the degree of whole person impairment resulting from the psychiatric injuries to the claimant alleged in the claim is more than 10% and is permanent." (my emphasis)

37 It is important to note that in the Panel's reasons there is no reference to it making a distinction between primary and secondary psychiatric symptoms.

38 Mr Beach, SC who appeared with Mr Niall for the plaintiff contended that when read together the contents of the certificate and the reasons led to the conclusion that the Panel had taken into account psychiatric or psychological symptoms which were patently secondary to the physical injury. This contention was founded upon the reference in the certificate, as a result of the question posed, to the psychiatric injuries "alleged in the claim". The plaintiff's contention was that the psychiatric injuries alleged in the claim necessarily referred to those injuries described in the s 28L2(2) and (3) information and/or the certificate provided by Dr Epstein. In both cases (ie the question and the answer) there was reference, they contended, to the development of a secondary depressive reaction consequential upon physical injury. It was further contended that the reasons reinforced this conclusion as there was reference throughout the reasons to what might be described as secondary symptoms and that the penultimate and concluding passages in the reasons referred to "alleged psychiatric injuries" without differentiation. Absent any specific statement that secondary psychiatric impairment had been disregarded, it was contended by the plaintiff that I should infer from a combination of the certificate and the reasons that secondary psychiatric impairment formed part of the consideration by the Panel of that overall psychiatric condition and therefore infringed the provisions of s 28LJ. The alternative argument was that the Reasons failed to disclose whether the secondary psychiatric impairment had been ignored and therefore were inadequate.

39 Mr O'Loughlin, QC who appeared with Mr Keogh for the second defendant disputed that any such inference was open. He pointed to the provisions of the Act and the terms of the certificate itself. He contended that a determination was required, under the Act, to be made in accordance with Division 3. This necessarily meant that the Panel would, consistent with s 28LJ, ignore any non-secondary psychological impairment. It was contended that the very exercise carried out by the Panel of determining a degree of psychiatric impairment and then stating that the impairment met the threshold and no more, was consistent with the exercise being carried out in accordance with law. The sole focus of its task, he contended, was to address the degree of impairment consistent with the Act - not to articulate what was secondary and what was primary. He argued that the distinction between primary and secondary impairment is a distinction well known to psychiatrists practising in the personal injuries field and has been so since the Transport Accident Act 1986 and the Accident Compensation Act 1985 were amended in the mid 1990's. He relied upon passages in Winneke P's judgment Lincoln referring to the distinction. He contended that it was not necessary for the Panel to state in terms that it had disregarded the secondary as it was implicit that it would have done so. He argued that the symptoms noted by the Panel at the time of its examination all pointed towards a primary psychiatric impairment and that this was the subject of its determination. Ultimately he contended that if the Panel was guilty of any error, it may simply have been of deciding the facts wrongly and that such a finding was not susceptible to judicial review. In respect of the adequacy of the reasons he argued that it could be implied from the reasons that the Panel had put to one side any consideration of secondary psychological impairment.

40 It was accepted by Mr. Beach that the plaintiff bore the onus to persuade me that the Panel had, in fact, taken into account secondary psychological or psychiatric impairment in reaching its decision.

41 In Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works[10] Smith J (with whom Adam J concurred) said as follows:

"The appellant in order to succeed in this case, has to demonstrate to the satisfaction of the Court that the Town Planning Appeals Tribunal went wrong in law in arriving at its decision. It would not be enough for the appellant to show that the Tribunal's reasons for its decision are so expressed as to suggest the possibility that the Tribunal proceeded upon a wrong view of the law. The Court is not entitled to interfere with the decision, unless it is satisfied that there was, in fact, a vitiating error of law." [11] (My emphasis)

42 This, as I will discuss later, seems to me to be of significance in this case.

43 I do not think that it is necessary to go further then restating what was said by Phillips JA in RSL v Liquor Licensing Commission: [12]

"Ultimately, at all events when what is in question is error in the course of decision-making (as was the case here), the task for the Court from which certiorari is sought must be to distinguish between, on the one hand, those matters which the tribunal is given the jurisdiction to decide and even to decide wrongly (so that error does not go to jurisdiction), and on the other hand those in respect of which, while it may have the power to enquire into them, it does not have the jurisdiction to decide wrongly (so that the error does go to jurisdiction)."

44 In Clarke v National Mutual[13] I set out the principles relevant to a consideration of whether a Medical Panel (in that case constituted under the Accident Compensation Act) has provided adequate reasons for its decision. I set them out again.

• A Medical Panel constituted under the Act is required to provide reasons for reaching its decision.[14]
• Those reasons should enable the Court and the parties to understand that the question referred to the Panel has been properly considered according to law and that the opinion furnished is founded on the appropriate application of the Panel members' medical knowledge and expertise.[15]
• The Panel is an expert tribunal, whose members are chosen for their experience and those findings need to be viewed in that light (cf. a non-expert tribunal).[16]
• The reasons are those of a Tribunal not that of a judicial body and must be viewed from that perspective. [17]
• The reasons of the Panel are to be read in context, taking into account the background of the case, the material provided and the issues which have to be determined.[18]
• The reasons of an administrative decision maker such as the Panel are meant to inform and over-zealous judicial review is to be eschewed. The reasons should not be over-analyzed.[19]
• Judicial review should not be used to conduct a merits review.[20]
• The reasons of the Panel do not need to advert in detail to those matters it has taken into account.[21]

45 One point can be made at the outset: to a certain extent this problem is the making of the plaintiff. By specifically phrasing the question with a reference to the "injuries alleged" the plaintiff ran the risk of having injuries other than the primary psychiatric injury considered by the Panel - the very thing it now complains about. Although this amounts to a lament rather than a criticism,[22] it would have been far better if the question had been posed in terms such as: "Does the degree of impairment resulting from a psychiatric or psychological injury to Ms Lucero satisfy the threshold level as prescribed by Division 3 of Part VBA of the Wrongs Act 1958?"

46 Unfortunately that observation does not resolve the issue I am asked to decide, viz whether I am satisfied that in answering the question the Panel took into account secondary psychological or psychiatric impairment which it was required to ignore.

47 I accept, that it is arguable or possible that the Panel did so. However I think that there are a number of factors which count against this Panel actually doing so. I list them as follows.

48 First, the very exercise carried out by the Panel in accordance with the section requires its members to discount secondary psychiatric impairment. On the face of the certificate and the reasons the Panel was aware of the provisions of the Act and the certificate under s 28LZG(2)(a) necessarily required the determination to have been made in accordance with Division 3 and therefore necessitated the application of s 28LJ. As Mr O'Loughlin contended, no part of its task is directed to determining the amount of secondary psychiatric impairment - it simply has to state that the claimant has or has not satisfied the threshold level.

49 Second, it is not as though there was a predominant history or findings by the Panel of symptoms secondary to a physical injury. Indeed it was quite the opposite: the Panel found that the second defendant suffered from moderately severe post-traumatic stress disorder. Whilst it is true that there were at times references by the second defendant to depression relating to pain thereafter, her description of her symptoms as at the time that the Panel determined her impairment assessment seem to me to be only referable to a primary psychiatric impairment namely post-traumatic stress disorder with related depression. The Panel's description of the nature of the condition (reproduced earlier at para 36) points away from consideration of secondary condition particularly given her history at the time the Panel examined her. In particular there is no reference by the Panel to such typical and well known secondary psychiatric conditions such as "reactive depression", "functional overlay" or "chronic pain syndrome". [23]

50 Third, I accept the submission made by Mr O'Loughlin that the distinction recognised by the President of the Court of Appeal in Lincoln between primary and secondary is well known to psychiatrists practising in this area. It was accepted that both psychiatrists were highly experienced; therefore it would strike me as singularly odd in the context of an assessment carried out under the Act, that a psychiatrist would not be familiar with the distinction between primary and secondary impairment and apply that distinction in accordance with law and particularly s. 28LJ of the Act.

51 Fourth, the answer in the certificate was predicated on the question asked by the plaintiff. It does not, it seems to me, necessarily follow that the Panel took into account secondary psychiatric features. Rather it was simply responding to the terms of the question posed. Its reasons support rather than detract from this consideration.

52 On balance and bearing in mind that the plaintiff carried the onus of persuasion, I am not satisfied that the Panel in providing its answer in the certificate took into account matters which it would have been proscribed from considering by reason of s 28LJ of the Act.

53 As an alternative the plaintiff argued that the reasons of the Panel were deficient. Essentially this argument is bound up with the argument relating to error of law. The plaintiff contends that the reasons should have stated, at least, that the Panel had regard only to primary psychiatric impairment in reaching its conclusion.

54 For the reasons I have advanced in relation as to whether there was an error of law, I do not think that this contention is made out. I think there is sufficient in the Panel's reasons for it to have conveyed to me and to the parties, that it applied the correct test by having regard only to primary psychiatric or psychological impairment.

55 I take into account particularly the fact that the members of the Panel were experienced medical practitioners expressing their views in non-legal language but with clear awareness of, at least, some of the provisions of the Wrongs Act 1958. I reject the plaintiff's argument that there is sufficient inadequacy in the reasons if the Panel fails to refer to a particular statutory provision or fails to state in terms that it has complied with the provisions of the Act. To do so would convert its function to that of a quasi judicial body which it is not.

56 In my view the reasons provided by the Panel are adequate.

57 The plaintiff bore the onus of persuading me that the Panel had taken into account secondary psychiatric or psychological injury impairment or symptoms and therefore erred in law. I am not so persuaded. Similarly the plaintiff bore the onus of persuading me that the reasons of the panel are inadequate by failing properly to disclose a differentiation between primary and secondary psychiatric or psychological symptoms. Again I am not so persuaded.

58 The proceeding should be dismissed. I will hear any applications the parties wish to make in relation to costs.

[1] I granted leave to the plaintiff on the day of the hearing to include this ground within the originating motion.

[2] [2003] VSCA 67; (2003) 6 VR 199.

[3] [2003] VSCA 67; (2003) 6 VR 199 at [16].

[6] A condition which has been considered on a number of occasions by both trial judges in this Court and the Court of Appeal: Wright v The Commonwealth of Australia [2005] VSC 200 at para 58, Wright v The Commonwealth of Australia [2005] VSCA 309 and Metcalfe v Commonwealth of Australia [2006] VSC 105 at para 13.

[8] Accompanying the certificate provided by Dr Epstein was information said to be provided pursuant to s 28LT(2) and (3) of the Act.

[9] Which include the certificate of Dr Epstein, the s 28L(2) and (3) information and the s 28LZA(1) information.

[10] (1971) 38 LGRA 6 at p.18.

[11] See also McIntosh v Hooker Home Units No. 2 Pty Ltd 38 L.G.R.A. 188 at 190 and BCSP N. 4166 v Stirling Properties [1984] VicRp 73; [1984] VR 903 at 913

[12] [1999] VSCA 37; [1999] 2 VR 203

[13] Unreported [2007] VSC 341.

[14] Masters v McCubbery & Ors [1995] VICSC 209; [1996] 1 VR 635 at 650; Administrative Law Act 1978 s 8(1) and (4).

[15] Masters at p.661 per Callaway JA.

[16] Spurling v Development Undermining (Vic) Pty Ltd [1973] VicRp 1; (1973) VR 1 at 11.

[17] Hunter v TAC [2005] VSCA 1 at [21]- [22] spells out the judicial obligation.

[18] George v Nisselle & Ors [2005] VSC 177 at [56], [61]-[62].

[19] Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272.

[21] Kentucky Fried Chicken v Gantidis [1979] HCA 20; (1979) 140 CLR 675, at 679-680.

[22] I note that the plaintiff used the information provided by the second defendant to frame the question put to the Panel.

[23] See for a discussion of some of these terms: Mutual Cleaning and Maintenance v Stamboulakis [2007] VSCA 46 at paras 4 - 8