Plaintiff v First Defendants

2 After the tests were conducted and the biopsy analysed, on 24 June 2003 Dr Leinkram told the plaintiff that he had a metastatic carcinoma. That meant, in effect, that a carcinoma had appeared in a region remote from its origin. The plaintiff's lung appears to have been considered the likely site of origin.

3 The plaintiff was later referred to an oncologist, Dr Grant McArthur, who consulted with him at the Peter MacCallum Cancer Centre. The plaintiff claims that on 24 July 2003, he was informed by Dr McArthur that the cancer was incurable. He also claims that Dr McArthur gave him certain advice about how to spend the time that he had left before his death. However, in October 2003 the plaintiff was advised by another medical practitioner at the Peter MacCallum Cancer Centre that his neck was the primary site of the cancer, and that the condition he was suffering from was treatable. Treatment for that condition apparently occurred in 2003 and 2004.

4 On 21 May 2006, the plaintiff commenced proceedings in the County Court of Victoria against the second, third and fourth defendants in this proceeding. The causes of action brought against them included negligence, breach of contract, and misleading and deceptive conduct.

5 The factual allegation at the basis of the action was included in the plaintiff's statement of claim as follows:[1]

On or about 24 July 2003 after the plaintiff had attended the first defendant to undergo the various further investigations referred to in the previous paragraph the third defendant advised the plaintiff that:

(a) he was suffering from undifferentiated large cell carcinoma;

(b) metastatic lung cancer ("lung cancer") was the likely diagnosis;

(c) there was a high probability of further metastatic disease;

(d) there were no medical or surgical interventions available to treat the lung cancer;

(e) the only available medical management was surveillance;

(f) his life expectancy was of the order of six months;

(g) in view of the above it was reasonable for the plaintiff to cease work and undertake some travel around Australia pending the certain deterioration in his condition culminating in early death from lung cancer all of which comprised the "oncologist's advice.

The Wrongs Act 1958 (Vic)

6 Part VBA of the Wrongs Act 1958 (Vic) ("the Act") imposes threshold requirements which must be satisfied in order that damages for non-economic loss may be recovered. Non-economic loss means, inter alia, claims for "pain and suffering", and injury includes "psychological or psychiatric injury" (s 28LB).

7 Section 28LE of the Act provides:

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

8 Pursuant to s 28LF(2)(a), psychiatric injury to a person is a "significant injury" if:

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.

9 In the case of psychiatric injury, the threshold level is a permanent impairment of more than ten per cent (s 28LB).

10 The procedure for assessing whether a particular impairment has satisfied the threshold level is set out in Division 3 of Part VBA of the Act. Initially, the injury will be assessed by an approved medical practitioner who, if satisfied that the threshold level has been met, will furnish the injured person with a certificate of assessment. Where the individual intends to rely on the certificate in order to obtain damages, a copy of the certificate must be served on the respondent. The assessment of the medical practitioner can be accepted by the respondent as conclusive of the matter. If the respondent does not accept the assessment, the respondent may refer a "medical question" in relation to the assessment to a Medical Panel for determination under the Act (s 28LWE).

11 In this case the plaintiff was issued with a certificate of assessment signed by a Dr Paul Kornan on 6 March 2006. Dr Kornan described the relevant psychiatric injury as follows:

Specific anxiety phobia of recurrence of cancer and of death (due to delay in treatment).

12 Attached to that assessment was a detailed report from Dr Kornan also dated 6 March 2006 which included a diagnosis and treatment. The report indicated that the plaintiff presented Dr Kornan with:

(a) a specific anxiety phobia about the recurrence of cancer and death; and

13 On 4 August 2006, at the request of the plaintiff, Dr Kornan prepared a supplementary report. In that report he was requested to comment "in some more detail" about the psychological effect on the plaintiff of being told the likelihood of death in a few months and being told that his condition was incurable. Dr Kornan then set out his answer to that question which included the observation that the plaintiff would have been in a significant degree of emotional shock and would have been "filled with terror, and anxiety, and fears of death initially. He would be emotionally in a rather shattered situation."

14 In answer to a specific question in relation to whether or not the plaintiff demonstrated that he had a long term physical or psychological problem caused by the "misdiagnosis" Dr Kornan said:

I consider that he is someone who will have a long term physical fear of cancer and of death. If he gets a five year survival rate, in his mind that will mean that he has been cured, then the adjustment disorder with depression will substantially lift. However, I think he will be living in fear about the recurrence of the cancer, and the possibility of death long term.

15 Pursuant to s 28LWE of the Act, the matter was referred to a Medical Panel for determination. The Medical Panel was comprised of Dr John Lloyd and Dr Steven Adlard. The uncontested evidence indicates that they interviewed the plaintiff and his partner on 17 October 2006 and issued a determination on 12 November 2006, concluding that the plaintiff's psychiatric injury did not satisfy the threshold level laid down by the Act. The Panel gave written reasons for its determination.

16 By originating motion under Order 56 and dated 30 January 2007, the plaintiff sought an order in the nature of certiorari quashing the decision of the Medical Panel. The originating motion was brought against the Medical Panel, the Peter MacCallum Cancer Centre, Dr Charles Leinkram and Dr Grant McArthur. At the hearing of this matter I was informed that whilst the second, third and fourth defendants were represented by counsel, they did not wish to advance argument other than on the question of costs. By letter of 15 March 2007 to this Court the first defendants - Dr John Lloyd and Dr Steven Adlard, the members of the Medical Panel - did not seek to appear and indicated that they would submit to such orders as I might make in these proceedings.

17 The originating motion, as amended by leave on 29 October 2007, asserts that the Medical Panel committed errors of law which appeared on the face of the record and that they failed to take into account a relevant consideration, namely, the effect or possible effect that the plaintiff's medication, including antidepressant medication, had or could have had on the plaintiff's signs and symptoms of his impairment at the time of the Medical Panel's assessment. Further or alternatively, the particulars allege that the Medical Panel acted without, or in excess of, their jurisdiction.

18 The relief sought is the remission of the matter to a differently constituted Medical Panel for re-determination of the question under s 28LF(2)(a) of the Act.

19 A Medical Panel's decision is a final determination of rights given there is no appeal on the merits but only judicial review.

20 In relation to an assessment of psychiatric impairment, s 28LI(1) of the Act provides:

For the purposes of assessing the degree of psychiatric impairment the A.M.A. Guides apply, subject to the regulations made for the purposes of this section, as if for Chapter 14 there were substituted the guidelines entitled "The Guide to Evaluation of Psychiatric Impairment for Clinicians".

21 It was submitted, and I accept, that the effect of this provision is to substitute the second-mentioned guidelines for the A.M.A. Guides where psychiatric injury is concerned. The application of those guidelines is mandatory in the assessment process under Part VBA of the Act.

22 The procedure of the Medical Panel is set out in Division 5 of the Act and requires someone in the position of the current plaintiff to meet with the Panel and answer questions, to supply the Panel with copies of all documents in their possession relating to the medical question referred, and to submit to a medical examination by the Panel or by a member of the Panel. All three elements of that obligation were imposed on the plaintiff in this case.

23 As was submitted before me, the effect of the Act is to enable the Panel to exercise powers to ensure that they have all the information they need to discharge their task. That may include more than one meeting with the plaintiff or it may involve doing whatever is necessary to follow up information for the purpose of clarification or certainty.

The Referral to the Medical Panel and the Consultation

24 The referral to the Medical Panel occurred on 17 August 2006 and under the heading "Alleged Injuries" the following appears:

Psychiatric injury as a result of the alleged delay in diagnosis of primary tumour (alleged delay in diagnosis from July 2003 to October 2003[)].

25 The plaintiff submitted that although delay in diagnosis is a component of the claim, it is by no means all of it and it is the alleged misdiagnosis and its consequence which are at the basis of the plaintiff's action.

26 The evidence as to what occurred during the Panel's consultation with the plaintiff and his partner, Colleen Mary Allen, is based essentially on the reasons given by the Panel for its determination, and the affidavit sworn by Ms Allen on 28 March 2007 which is not the subject of any dispute before me. The Panel was provided with the plaintiff's medical records,[2] the reports of Dr Kornan and, of course, the physical presence of the plaintiff himself whom they could, and obviously did, question. The Panel also had before it the court documents from the County Court proceedings, including the plaintiff's statement of claim.

27 Ms Allen's evidence about the process was to the effect that the plaintiff had a "consultation" for about ten minutes on 17 October 2006 with the Medical Panel and it was after that she was invited into the room. In her affidavit she said she believed the purpose of her being there was to assist the plaintiff with the details of the medication he was taking. Ms Allen apparently struggled to remember the complete details although she recalled telling the Panel he was using Fentanyl patches and a drug she referred to as "morphine breakthrough" which she now believes is known as Ordine-5. She also identified "Endep" and another drug that she could not recall. She thought Endep was an antidepressant. Ms Allen observed what she described as a lack of concern on the part of the Medical Panel to be precise about these drugs and she claims that neither she nor the plaintiff were asked to follow up the details of those medications. Ms Allen also deposed that during the discussion she witnessed, the Panel asked the plaintiff whether he was depressed at which point he broke down and became emotional. She informed the Panel that he was depressed and referred to the change in him since he was informed that he was suffering from incurable cancer with only a few months to live. She said that the plaintiff explained to the Panel that he suffered from problems with his memory caused by morphine, other pain management drugs and consumption of alcohol. She claims that no reference had been made by her or the plaintiff that he suffered "alcoholic blackouts" or had been "pushed" to get off the drugs, as the Medical Panel stated in its reasons.

28 In the reasons for determination, the Medical Panel indicated that it formed its opinion by reference to the documents and information referred to in Enclosure A which included the plaintiff's medical history. The Panel also relied on the history provided by the plaintiff and the findings elicited during the Panel's examination on 17 October 2006.

29 The determination of the Panel was incorporated in the following question and answer:

Q: Does the degree of impairment resulting from psychiatric injury to the claimant alleged in the claim, satisfy the threshold level?

A: The Panel determined that the degree of psychiatric impairment resulting from the psychiatric injury to the claimant alleged in the claim does not satisfy the threshold level.

30 In setting out the reasons for the determination, the Panel appears to have concentrated on the consequences of the surgery which followed after October 2003. There is reference to the chemotherapy and the consequences of it as well as to how it was affecting the plaintiff's lifestyle. There is the disputed reference to whether or not the plaintiff said that he was pushed to get off the drugs and some discussion of the medication he was taking at the time. The reasons refer to the plaintiff's fear that there would be a recurrence of the cancer. The reasons note that the Panel conducted a psychiatric examination. The reasons indicate that the plaintiff presented as alert with somewhat restricted effect, although when discussing the physical consequences of his condition he demonstrated tearfulness. The Panel concluded that the plaintiff was suffering from an adjustment disorder with depressed mood. The Panel also expressed the opinion that the plaintiff's psychiatric condition had stabilised.

31 In the reasoning of the Panel reference is made to the prohibition contained in s 28LJ of the Act, which is in the following terms:

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.

32 The first submission on behalf of the plaintiff was that the Medical Panel failed to take into account relevant considerations. Ms Mortimer SC, who with Ms Hartley appeared on behalf of the plaintiff, submitted that if the legislative scheme requires a particular consideration to be taken into account and if it is not the decision will be affected by jurisdictional error. That, she submits, is because the decision-maker will not have undertaken the task in the way the legislative scheme required and therefore had no jurisdiction to make the decision it did. (See generally Minister for Aboriginal Affairs v Peko Wallsend[3] and Craig v South Australia.[4]) In the latter case of Craig, the Court observed that:

... jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires the that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of a particular case.[5]

33 Their Honours went on to say that an inferior court will exceed its authority and fall into jurisdictional error if the relevant statute or instrument is misconstrued and/or the nature of their function is misconceived. Their Honours noted that the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.

34 In this case the material which it is said the Medical Panel failed to take into account was: (a) the effect or possible effect that the plaintiff's medications may have had and whether they may have masked some of his psychiatric symptoms; (b) the total amount of medication being taken by the plaintiff at the time of his examination by the Panel; and (c) the effects on his condition of the total amount of medication and the so-called interaction effects between those medications. Particular reliance was placed on Principle 5 of the guidelines to the raising of psychiatric impairment. That principle reads:

A careful review must be made of the treatment and rehabilitation methods that have been applied or are being used. No final judgment can be made until the whole history of the illness, the treatment, the rehabilitation phase and the individual's current mental and physical status and behaviour have been considered.

35 In her submissions, Ms Mortimer relied on the fact that a number of matters which would arise for consideration by the Medical Panel on the application of Principle 5 were not considered and were not the subject of determination.

36 I must say, with respect, that the reasons given by the Medical Panel do seem to have concentrated on matters which might be regarded as "secondary" and fall within the purview of the prohibition in s 28LJ of the Act. It is submitted on behalf of the plaintiff, and I note there were no submissions to the contrary, that the only portion of the reasons of the Panel which could be said to apply to the fundamental basis of the plaintiff's claim of misdiagnosis appears on p.2 in the following terms:

The claimant indicated that he was upset at the delay in diagnosis of his condition in 2003 and being told the cancer was incurable.

37 It was submitted that although delay was part of the problem, the alleged misdiagnosis was the major issue and the effect of that does not seem to have been the subject of discussion or questioning by the Panel.

38 The material before me points to an absence of detailed inquiry in relation to that issue which the Panel should have realised was central to the proceedings which he had commenced in the County Court, if its function was being discharged properly.

39 So far as medications and their effects are concerned, the Medical Panel did note in their determination what they understood to be the plaintiff's present regime.[6] However, to the extent that the requirement in Principle 5 of the guidelines to the rating of psychiatric impairment requires a careful review to be made of the treatment and rehabilitation methods that are being applied or are being used, such a careful review did not occur - at least in relation to the effects of the medication that the plaintiff was taking and the likelihood that it masked psychiatric or psychological symptoms.

40 Finally, it appears that the reference to the plaintiff being upset at the delay in diagnosis of his condition represents the extent of the history taken from him in relation to his claim and on the face of it could not be described by any means as a detailed history relevant to the factual basis of his County Court proceedings.

41 As the introduction to the principles in the guidelines indicate:

... The assessment of psychiatric impairment is based on the systematic application of empirical criteria, and takes into consideration both the diagnosis and other factors unique to the individual. It is also relevant to consider motivation, and to review the history of the illness, as well as the treatment and rehabilitation methods.

42 The second submission on behalf of the plaintiff was that the Medical Panel had failed to discharge the task assigned to it. The essence of the submission under this heading is that the reasoning of the Medical Panel does not reflect that an accurate history was taken from the plaintiff. In the course of submissions reference was made to the judgment in Cladingboel v Newcrest Mining Limited and Ors.[7] In that case his Honour was concerned with an application for judicial review of a Medical Panel pursuant to s 3 of the Administrative Law Act 1978 (Cth). His Honour concluded, inter alia, that the Medical Panel whose decision was then under consideration had wrongly stated what the applicant had told it and therefore had not taken a relevant consideration into account because it had misconceived or ignored what the applicant and his treating doctor had said about a particular issue. His Honour observed:

Both the Act (s 65(5)) and the Guides make it clear that the history of the injured person is something which the Panel should take into account. In those circumstances, in my opinion, the Medical Panel made a jurisdictional error when it acted on an erroneous view of the applicant's history in respect of a relevant consideration.[8]

43 His Honour also referred in the course of his reasoning to the conclusions of Williams J in Tralongo v Malios and Ors[9] where her Honour observed:

By forming its view, having regard to a history which was not given, the Medical Panel has, in my opinion, ignored the relevant consideration of the account of events actually given by Mr Tralongo when he had been provided with the opportunity to tell his story.[10]

44 In this case a detailed history in relation to the alleged misdiagnosis and its effects, being the basis of the plaintiff's claim, was not the subject of detailed discussion in the way envisaged by the principles. It was submitted by Ms Mortimer on behalf of the plaintiff that that issue only attracted a fleeting reference as I have already noted above. I agree with that submission. The evidence of Ms Allen in her affidavit of 28 March 2007 contains no evidence of any discussion during the consultation with the Panel about that issue generally. In addition, although Ms Allen gave some information to the Panel in relation to the medication being taken by the plaintiff, she indicated that she was unable to remember the name of at least one other drug that he was using. She said that there was no request for any follow-up as to the name of the drug or, it might be inferred, any suggestion that the plaintiff would make further enquiries in relation to that issue.

45 The third and last submission was that the Medical Panel had not accorded the plaintiff procedural fairness. This submission was substantially based on the observation of Vincent J in Calleja v Franet Pty Ltd and Ors[11] as follows:

In circumstances such as those present in the matter before the Court, where a decision can, as a practical proposition, finally determine a person's legal rights, it is of the utmost importance that the affected individual has been given a proper opportunity to be heard.[12]

46 I do not consider the plaintiff had a proper opportunity to be heard on the issue directly relevant to the medical question at the basis of his proceedings in the County Court. The Panel may have been distracted by the referral to them which does not adequately raise the issue by any means although there was correspondence between solicitors about that question.

47 In my opinion, the basis for the relief sought in this case is made out. There were three aspects of the determination of the Medical Panel which caused it to make a decision "not authorised" by the Act.[13] Firstly, there is nothing to suggest that the allegation the plaintiff makes about the misdiagnosis of his condition which is at the basis of his County Court proceedings was the subject of any enquiry or discussion other than in the context of delay. As I have already stated, delay was only part of the problem. Secondly, it does not appear that a sufficiently detailed history was taken into account in the determination. Thirdly, the evidence does not suggest that the history and analysis of the effect of the medications being taken by the plaintiff was an aspect of his condition which was considered in detail, particularly with reference to how such medication may have affected his presentation before them. To those considerations, particularly the third, can be added that it might have been expected that, given the apparent difficulties of recollection by the plaintiff and Ms Allan, some follow-up should have occurred in order to be sure of the plaintiff's medication regime.

48 In addition, as was submitted by Ms Mortimer, much of the Panel's reasons were taken up with the psychiatric consequences of the plaintiff's treatment which was required to be discounted under s 28LJ.

49 Ms Mortimer also placed some reliance on the absence of any reference to Dr Kornan's reports in the reasons of the Panel. However, in my view, in almost all respects the Medical Panel is examining the matter afresh since agreement has not been reached on the original medical assessment. Although they may have referred to Dr Kornan's reports and their views about them, the fact that that did not occur does not represent an error for the purpose of this application.

50 In all the circumstances, I therefore propose to accede to the application for an order in the nature of certiorari quashing the decision of the Medical Panel dated 12 November 2006. I order that the medical question determined by the Medical Panel on 12 November 2006 be remitted to a differently constituted Medical Panel for determination according to law.

51 I will hear the parties submissions on the question of costs.

[2] It was noted during submissions that those records included notes of the discussion that Dr McArthur had with the plaintiff on 24 July 2003.

[3] [1986] HCA 40; (1986) 162 CLR 24.

[4] [1995] HCA 58; (1995) 184 CLR 163.

[5] Ibid at 177 (per Brennan, Deane, Toohey, Gaudron and McHugh JJ).

[7] [2007] VSC 345.

[8] Ibid at [57] (per Habersberger J).

[9] [2007] VSC 239.

[11] [1999] VSC 202.

[13] See Cladingboel v Newcrest Mining [2007] VSC 345 at [33] (per Habersberger J).