Plaintiff v Firstnamed Defendant

Supreme Court of Victoria|2008-09-10|Before: WILLIAMS J

ADMINISTRATIVE LAW - Relief in nature of certiorari - Medical panel - Jurisdictional error - Error of law on the face of the record - Litigation guardian as representative of plaintiff at medical panel examination - Relevant consideration - Adequacy of reasons.

1 This is an application for relief in the nature of certiorari quashing the 17 April 2007 determination of a medical panel constituted by the two psychiatrists named as the first defendants. The plaintiff also seeks a declaration that the medical panel's Certificate of Determination also dated 17 April 2007 ("the certificate") is void and of no effect.

2 The first defendants did not appear at the hearing of the application and filed no material in opposition. They will, nonetheless, submit to any orders made by the Court, adopting the course encouraged by the High Court in R v Australian Broadcasting Tribunal & Ors.[1]

3 The infant plaintiff was born on 14 May 1998. He alleges that he sustained a psychiatric injury on about 19 March 2005 when, at the age of six, he fell at rented premises. He wishes to issue proceedings in the County Court alleging that he suffered a psychiatric injury as a result of the negligence and, or breach of duty by the two second defendants in this proceeding.

4 Section 28LE of the Wrongs Act 1958 ("the Act") requires the plaintiff to establish that he suffered a "significant injury" in order to be able to recover damages for pain and suffering in relation to the alleged psychiatric injury.

5 A "significant injury" is defined in s 28LF(2)(a) of the Act as one which results in a degree of impairment assessed by an approved medical practitioner as satisfying a "threshold level", unless a medical panel to whom the issue has been referred has made a determination as to the "threshold level". Section 28LB provides that the "threshold level" in the case of a psychiatric injury is an impairment of more than 10 per cent. Section 28LZH requires a court to accept the medical panel's determination as to whether the threshold level has been reached in any proceeding on the claim.

6 In the plaintiff's case, in a letter dated 9 February 2006, Dr Edward Cole, an approved medical practitioner and psychiatrist, stated that he assessed his degree of psychiatric impairment at 15 per cent; this satisfied the threshold level. Dr Cole had examined the plaintiff on 19 January 2006, some ten months after his fall.

7 Subsequently, the second defendants referred a "medical question" relating to the plaintiff's degree of impairment to the medical panel under s 28LWE of the Act. The medical question was :

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

8 The medical panel made its determination on 17 April 2007 and answered the medical question in the certificate which stated :

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

9 The medical panel gave Reasons for Determination dated 17 April 2007 ("the reasons"). Before I turn to the reasons and the plaintiff's challenges, I will set out relevant provisions of the Act and the procedural directions for medical panels.

10 Section 28LZD regulates attendances before a medical panel:

28LZD Attendance before Medical Panel to be private

(1) Any attendance of a claimant before a Medical Panel must be in private, unless the Medical Panel considers that it is necessary for another person to be present.

(2) If the claimant is a person under disability, the Medical Panel must permit a representative of the claimant to be present.

(3) In this section person under disability means a person who is -

(b) incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the matter before the Medical Panel.

11 Section 28LZ governs a medical panel's procedures :

(1) A Medical Panel is not bound by rules or practices as to evidence, but may inform itself on any matter relating to a reference in any manner it thinks fit.

(2) A Medical Panel must act informally, without regard to technicalities or legal forms and as speedily as a proper consideration of the reference allows.

(3) The Minister, after consultation with the Minister administering Part III of the Accident Compensation Act 1985, may for the purposes of -

(a) ensuring procedural fairness in the procedures of Medical Panels under this Part; and

(b) facilitating the proper administration of the Medical Panels under this Part -

issue guidelines as to the procedures of Medical Panels under this Part.

(4) The Convenor may give directions as to the procedures of Medical Panels under this Part, but must not give directions inconsistent with any guidelines issued by the Minister under this Part.

(a) any relevant guidelines as to the procedures of Medical Panels issued under sub-s (3); and

(b) any directions given by the Convenor under sub-s (4).

12 The Deputy Convenor of Medical Panels made applicable directions under s 28LZ(4) on 1 September 2006 ("the 2006 directions"). The 2006 directions record that the Minister had not issued any guidelines under s 28LZ(3) as at 1 September 2006.

13 The 2006 directions refer to sections of the Act and go on to state their own purpose and to relevantly provide for a medical panel's procedures as follows :

The purpose of these directions is to define the procedures to ensure Medical Panels provide the appropriate Determination or Certificate in response to the medical question as to whether the degree of impairment resulting from the injury to the claimant alleged in the claim for damages for non-economic loss satisfies the threshold level (Section 28LB).
To fulfil this purpose, these directions aim to facilitate:

(a) the referral of the medical question (Section 28LB);

(b) a Determination or Certificate of a Medical Panel that is responsive to the medical question; and

(c) a process by which the Determination or Certificate is produced in a manner that is efficient and transparently thorough and fair.

Medical Panel Procedures that a Medical Panel must act informally and may inform itself on any relevant matter in any way it thinks fit: (s 28LZ(1) & (2)).
that within 30 days of receipt of the referral a Medical Panel may request the claimant to meet with the Panel in order to answer questions and/or/submit to a medical examination/s and to supply copies of all relevant documents in the claimant's possession; (s 28LZC(1) & (2)); and

The Deputy Convenor will, at the request of the Medical Panel, arrange such examinations as are considered appropriate by the Panel. ...
The Act provides that a claimant's attendance for examination (unless they are a "person under disability") must be in private, unless the Panel considers that it is necessary for another person to be present (s 28LZD(1)).
If a claimant is a "person under disability" then a representative of the claimant is entitled to be present at the examination and to speak on the claimant's behalf (s 28LZD(2)).

After the Medical Panel has made an impairment assessment and:
- if it is satisfied that the injury alleged in the claim has stabilised, it will issue a Determination in the form set out in SCHEDULE 1; (s 28LZG(2)(a)) ...
The presiding member will also prepare and circulate to any other Panel members, a draft of the written reasons, in the form set out in SCHEDULE 5 for settling.

14 It is in that statutory context that the challenges to the medical panel's decision, the certificate and the adequacy of the reasons will be considered.

15 The reasons appear to follow the form of the pro-forma "Reasons for Determination [Certificate]" in Schedule 5 to the 2006 directions.

16 Accordingly, they record that the medical panel members each examined the plaintiff on 20 March 2007 and that they formed their opinion by reference to the documents and information referred to in "Enclosure A" to the reasons, the history provided by the plaintiff and examination findings elicited by the panel at the examination. (Dr Cole's 9 February 2006 report is amongst the listed documents in Enclosure A.)

17 Again following the pro-forma, what are described as "the reasons for the Panel's Determination [Certificate]" are to be found in paragraph 4. Given the nature of the challenge to the medical panel's determination, I will set out paragraph 4 which has, itself, been divided into numbered sub-paragraphs, at the suggestion of the parties:

The reasons for the Panel's Determination are as follows:

4.1 The claimant is aged eight years and attended the Medical Panel examination accompanied by his mother who also provided information to the Panel. The Panel noted that the claimant has been diagnosed as having an Autism Spectrum Disorder, as has his six year old brother.

4.2 On 19 March 2005 the claimant was playing outside the house with a ball when he slipped on a jagged step which led up to a veranda. His mother said that she witnessed the incident from inside the kitchen.

4.3 He fell and hit his head on some tiles on the veranda. He had a cut between his eyebrows. His mother heard him scream and ran out and found him lying on the floor with blood coming from his forehead. He was apparently dazed and sleepy. The claimant's father called an ambulance and he was taken to Sunshine Hospital.

4.4 He remained in hospital for about five or six hours, and had his head wound bandaged. Apparently an appropriate person to do the repair to the wound was not available.

4.5 The claimant said he was anxious in hospital, and his mother noticed that he was quite agitated. The next day he returned to the hospital and the wound was stitched under general anaesthesia. The claimant was reportedly very anxious about having a mask placed over his face for the anaesthetic, and his mother recalled that he was worried that he would die from the mask.

4.6 The claimant missed about two weeks from school following the incident.

4.7 Following the incident the claimant became anxious and preoccupied about death and blood. He kept asking whether he was going to die. Whenever he saw something on television involving an accident or blood, he would ask whether the people on television would die.

4.8 He began to urinate in his toybox and behind the television set, as well as in drawers. He also urinated in his clothing at times. This is despite being toilet trained since the age of five. The claimant also began not sleeping in his bedroom after the injury and wanted to sleep with his parents. He disliked going up and down stairs because he felt they were dangerous.

4.9 He had more difficulties at school, and his teachers reported that he was not involved in his work and behaving inappropriately. For example, he began to pull his pants down in the schoolyard. He generally became more reserved and withdrawn. He had become frightened at school and the integration aide had to spend more time with him in the playground.

4.10 Gradually the claimant has improved in terms of his anxiety and preoccupation with blood and death, and also his general behaviour. Specifically there has been a reduction in the inappropriate behaviour by pulling his pants down at school, he is generally less anxious in crowded or noisy environments, and his overall schoolwork has improved. He is currently sleeping better, but still has bad dreams about twice a week of creatures or monsters. The nightmares predated the injury. The claimant still sleeps with his parents after a nightmare, but on other nights he sleeps in his own bed. He has been able to attend a movie with his family in the past few months and attended the Grand Prix with his father recently. His mother reported anxiety when the claimant was unsure of what was planned or happening, but this was also common in his younger brother who also has an Autism Spectrum Disorder, and appeared unrelated to the injury. His mother said that the claimant was still cautious on stairs but was a lot better than he had been.

4.11 The claimant himself said that he still gets teased sometimes at school, which distressed him, but this did not appear to be related to the injury itself. He said however that he generally liked school and that he sometimes played with his brother in the playground. He named a number of friends he had at school. He reported a number of activities he enjoyed doing outside of school, such as playing on his computer or playing in the backyard. He said he could use the monkey bars at school and could jump from steps and use steps or stairs without anxiety.

4.12 The claimant is under the care of a paediatrician, whom he sees at three monthly intervals for behavioural management of inappropriate behaviours. He has no past history of other significant illnesses or injuries.

4.13 There is no family history of psychiatric illness.

4.14 On mental state examination the Panel noted that the claimant was alert and reasonably confident. He displayed some autistic-type behaviours such as spinning in his chair repeatedly. He had a thin scar in his left eyebrow. He did not appear anxious, depressed or tearful. His mood was normal. His thoughts revealed some distress about the incident in March 2005, but no particular preoccupation about it and a general interest in things appropriate to his age such as cars and his computer. There were no psychotic symptoms and his cognition was grossly normal, apart from some difficulties occasionally understanding his speech, which were generally clarified with repetition of the question.

4.15 The Panel concluded that the claimant has a mild Adjustment Disorder with anxious mood. He had some Post Traumatic Stress Disorder symptoms which are resolving, but the symptoms do not meet the criteria for a diagnosis of Post Traumatic Stress Disorder. He also has a Pervasive Developmental Disorder Not Otherwise Specified (Autism Spectrum Disorder). The Panel considers his psychiatric condition has stabilised.

4.16 The Panel assessed the level of the claimant's psychiatric impairment 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 on 28 August 1998 as required by s 28LI of the Wrongs Act 1958.

4.17 The Panel considers none of the psychiatric impairment arises secondary or consequential to a physical injury, but the Panel did disregard that portion of the psychiatric impairment which is attributable to his unrelated Pervasive Development Disorder Not Otherwise Specified (Autism Spectrum Disorder) in accordance with Section 28LL(3) of the Act.

4.18 The Panel concluded that the degree of psychiatric impairment resulting from the psychiatric injury to the claimant alleged in the claim is not more than 10% and is permanent.

18 The plaintiff attacks the medical panel's determination on the basis of the grounds for relief set out in the amended originating motion filed on 14 April 2008, which alleges that:

In making the decision the Medical Panel exceeded its jurisdiction, failed to exercise its jurisdiction or committed a jurisdictional error.

(a) The Medical Panel failed to take into account the relevant instructions of the Plaintiff's Litigation Guardian, concerning the psychiatric consequences, and the behavioural changes which had occurred and impacted the Plaintiff since he sustained injury on or about 19 March 2005.

(b) The Medical Panel erred in determining that there had been improvement in the Plaintiff's level of anxiety, a reduction in the Plaintiff's inappropriate behaviour, and that the Plaintiff's nightmares pre-dated the accident by placing too much weight upon the Plaintiff's responses to questions as the infant Plaintiff's responses were wrong or inaccurate having regard to his Autism Spectrum Disorder.

(c) The Medical Panel erred in determining that the Plaintiff's Post Traumatic Stress Disorder was resolving, but that the symptoms did not meet the criteria for a diagnosis of Post Traumatic Stress Disorder.

(d) The Medical Panel erred in placing too much emphasis upon a presumed psychiatric impairment attributable to the Plaintiff's Autism Spectrum Disorder rather than taking into account the relevant considerations offered by the Litigation Guardian concerning the behavioural and psychiatric changes which had affected the Plaintiff after the accident as distinct from any behavioural or psychiatric issues affecting the Plaintiff before the said accident.

Further or alternatively, the making of the determination was an improper exercise of power in that the Medical Panel took into account irrelevant considerations or failed to take into account relevant considerations.

Whilst it is noted that the Plaintiff's mother attended the Medical Panel examination and provided information, the Medical Panel failed to take proper or sufficient account of that information in forming its opinion.

Alternatively, in making the decision the Medical Panel committed an error of law on the face of the record.

The Plaintiff refers to and repeats the particulars set out in grounds 1 and 2 above.

Alternatively, the reasons for decision of the Medical Panel were not sufficient so as to enable it to be seen that the Medical Panel arrived at its decision in accordance with law.

19 The plaintiff relies upon affidavits sworn by his mother and litigation guardian, Kate Elizabeth Campbell, on 15 May 2007 and 10 April 2008 and by his solicitor, Patricia Faye Westray Toop, on 27 March 2008 and 10 April 2008, as well as on correspondence between the parties' solicitors.

20 No answering material was filed by the defendants.

21 Mrs Campbell asserts that, from paragraph 4.10 onwards, the reasons are "inaccurate" and "distorted" and that she believes that the medical panel failed to refer to facts and supporting evidence, clarification and comment she provided which, in her view, would have ensured a finding in favour of the plaintiff.

22 She considers it apparent from the reasons that the medical panel only took account of the plaintiff's answers which were given, because of his autism, in an unclear, uncertain and untruthful manner. The medical panel allowed the plaintiff to interrupt, providing the opportunity for him to directly refute her evidence. She considers that the plaintiff had difficulty comprehending questions or truthfully answering particular questions. She also thought it apparent that the panel had failed to take account of the difficulties and stresses she and her husband had suffered as a result of the plaintiff's psychological injuries which arose as a consequence of the accident.

23 She contrasts the findings of the medical panel with her statements to it. She maintains that :

(a) she had told the medical panel that the plaintiff constantly asked her and her husband persistent questions about death and blood, whereas the medical panel concluded that his psychological behaviour had improved, particularly in terms of his anxiety and preoccupation with blood and death;

(b) she had informed the medical panel that the plaintiff's school and family day care supervisor had confirmed that he continued to behave inappropriately by:

(i) kneeling in the corner of the classroom and making rocking motions;

(ii) dropping his trousers in public and displaying his genitals;

(iv) making loud obscene "raspberry-type" noises for several hours each day; and

whilst the plaintiff had denied such incidents out of embarrassment and the reasons incorrectly stated that there had been a reduction in inappropriate behaviour and improvement in his general behaviour;

(c) she had expressed her view that, despite an apparent improvement, his learning ability had regressed and he had failed to reach expected educational levels as a result, in part, to psychological trauma resulting from the accident, whereas the medical panel had commented that, after the plaintiff had missed two weeks of school and had had more difficulties there, his overall schoolwork had improved;

(d) the medical panel's conclusion that the plaintiff was less anxious in crowded or noisy environments was incorrect and that she had informed it of the following matters not recorded in the reasons:

(i) that although she and her husband had tried to prepare the plaintiff for the excursion with his father to the Grand Prix, mentioned in the reasons, he had only remained at the event for less than half an hour, being uncomfortable with the noise and crowd;

(ii) that since the accident, she had observed the plaintiff to appear anxious in crowded and noisy environments, placing his hands over his ears and closing his eyes; and

(iii) that the plaintiff's exposure to any noisy environment required a great deal of preparation by herself and her husband;

(e) the plaintiff did not properly understand the medical panel's question about his anxiety in crowded or noisy environments, because of his autism-related communication difficulties, and he gave his response because he did not wish to upset the panel with a negative response;

(f) the plaintiff told the medical panel that his father worked on cars, which was not the case;

(g) she had said to the medical panel that the plaintiff's nightmares had not been present before the date of the accident and that he still suffered from nightmares sometimes two to three times a week, whereas the medical panel had found that the nightmares pre-dated the injury;

(h) the medical panel's implicit conclusion there had been an improvement in the plaintiff's sleeping is incorrect;

(i) the plaintiff denied teasing through embarrassment and that the medical panel misconstrued his statements and made a finding on an unclear basis that the teasing he suffered did not appear to relate to the incident or the injury;

(j) the reasons do not refer to her evidence as to the plaintiff's after school activities and refer to him sometimes playing in the back yard, whilst she had only very occasionally observed him do that or watch television and that his general after school routines included doing his homework, making "raspberry-type" noises in his bedroom and playing computer games;

(k) the plaintiff had attempted to appease the panel by impressing it in relation to his out of school activities by answering untruthfully;

(l) whilst the medical panel concluded that the plaintiff appeared alert and reasonably confident on mental state examination, it omitted to note that he lost interest during the medical assessment, became subdued and showed autistic-type behaviour such as spinning around on his chair (which appeared to her to anger the panel who seemed to her to be unaware of how to relate to an autistic child);

(m) the medical panel was wrong to conclude that the plaintiff's cognition was grossly normal, in light of what Mrs Campbell says is his severe lack of understanding in all areas of his life which causes great strain on herself and her husband and his teachers; and

(n) she told the panel that the plaintiff had been seeing a paediatrician about once a year for a check up before the accident and was attending the paediatrician at three-monthly intervals, whereas she interprets the reasons as incorrectly recording him attending every three months before the accident.

24 It is common ground that the medical panel did not have jurisdiction under the Act to make an error of law by ignoring relevant material or relying on irrelevant material in a way that affected the exercise of its power.[2] It is agreed that it is enough for the purposes of this application for the plaintiff to prove that, but for any such error, the decision might have been different.[3]

25 Counsel for the plaintiff submit that the medical panel erred by misconceiving what was involved in the exercise of its power and by failing to take full and proper account of the information supplied by Mrs Campbell. Alternatively, they argue that the reasons are deficient in that they give no indication that the panel recognised Mrs Campbell's role or function as the plaintiff's representative or why it rejected her account on occasions.

26 Counsel for the plaintiff refer to the medical panel's obligation to comply with directions given by the Deputy Convenor under s 28LZ(5)(b). They argue that a comparison of directions 29 and 30 makes it apparent that the provisions allowing Mrs Campbell to be her son's "representative" under s 28LZD(2) had the beneficial purpose of removing or alleviating any disadvantage he might suffer as a person under a disability without someone to speak on his behalf. They submit that Khoury v Government Insurance Office (NSW)[4] supports their contention that the legislation's beneficial purpose and remedial character requires that the term "representative" should be given as ample a meaning as it bears and be construed to give the fullest relief which the fair meaning of its language will allow.

27 Counsel for the plaintiff have not been able to discover any relevant authority relating to the meaning of the word "representative" in its statutory context. They rely solely on a dictionary meaning, citing the second edition of the Oxford English Dictionary. They refer to the definitions of a "representative" as "one who represents another as agent, delegate, substitute, successor, or heir"[5] and "one who or that which in some respect represents another person or thing"[6], as well as that provided for the verb "to represent" being "to take or fill the place of (another) in some respect or for some purpose; to be a substitute in some capacity for (a person or body); to act for (another) by a deputed right."[7]

28 They argue that, in the statutory context, Mrs Campbell stood in the place of her son and should have been regarded by the medical panel as a substitute for him. The fact that her role was provided for in the Act meant that any history she gave should have been preferred to any obtained from the plaintiff. They contend that the reasons disclose that the panel failed to give effect to the relevant statutory provisions because it observed that it had formed its opinion by reference to the history provided by the plaintiff, thereby excluding from its consideration the factor of Mrs Campbell's entitlement to speak on his behalf. This resulted in an error of law of the type referred to by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation:[8]

His decision, it is true, is not unexaminable. If he does address himself to the question which the sub-section formulates, if his conclusion is affected by some mistake of law, if he takes some extraneous reason into consideration or excludes from consideration some factor which should affect his determination, on any of these grounds his conclusion his liable to review.

29 Counsel for the plaintiff note that the reasons acknowledge Mrs Campbell's presence as a source of information to the medical panel. Whilst they do not contend that the panel ignored what she had to say, they argue that acknowledgment was not enough to satisfy the statutory requirement in the circumstances. They rely upon Dr Cole's diagnosis and the medical panel's own conclusions about the plaintiff's condition in para 4.15 in support of this proposition.

30 Counsel for the plaintiff contend that the affidavit material shows that the medical panel failed to take fully into account the information Mrs Campbell provided as her son's representative and that the reasons do not contain any statement of a powerful reason to reject it. They argue that the medical panel either failed to state or misstated what Mrs Campbell said and appears to have acted upon different or contrary information which, counsel assert, was presumably provided by the plaintiff himself. Counsel point to the absence of any answering material from the medical panel.

31 Counsel for the second defendants agrees that the relevant provisions should be given a beneficial interpretation, arguing that they should be construed in the context of the statutory purposes which include that of ensuring procedural fairness. She reminds the Court of the variable content of procedural justice, noting the significance of the statutory context and citing what was said by Mason J in Kioa v West :[9]

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute.

32 Counsel for the second defendants maintains that there was no breach of the medical panel's obligation to ensure the fairness of its procedure as a result of it considering information from the plaintiff himself, as well as that provided by his mother in her capacity as his representative. She contends that, under the Act, the panel was entitled, if not obliged, to consider both information obtained from the plaintiff directly, as a result of the medical examination, and the statements his representative made on his behalf. The relative weight to be attributed to those considerations was a matter for its discretion, in the exercise of its expertise in reaching a determination.

33 Counsel for the second defendants argues that the statutory scheme conferred a broad procedural discretion upon the panel and that the presence of a representative would not have precluded it from conducting its examination in whatever manner it considered medically appropriate. Its powers were inquisitorial in some respects (and included the power to obtain the opinion of a consultant). Where psychological impairment was concerned, the medical panel's examination might have included some form of cognitive assessment involving questions and answers.

34 Counsel for the second defendants contends that the fact that s 28LZH of the Act requires a court to accept the medical panel's decision supports her argument that it had a significant discretion in relation to the determination of the merits of the plaintiff's claim and the procedures it used to obtain the requisite information.

35 Counsel for the plaintiff reply that s 28LZ rather casts a heavy burden on the medical panel,[10] making understandable the stated aim in para 9(c)of the 2006 directions of facilitating a process that is "efficient and transparently thorough and fair". The finality of the situation is to be distinguished from a situation in which a decision might only be taken into account by a court.

36 The parties each make detailed reference to Mrs Campbell's affidavits. Counsel for the plaintiff argue that the Court should conclude from that material that the panel failed to take her input into account to the necessary extent. Counsel for the second defendants contends that the reasons indicate that the medical panel considered Mrs Campbell as more than a mere onlooker, or passive supporter, and argues that it did clearly take what she said into account.

37 Counsel for the second defendants argues, more generally, with regard to Mrs Campbell's disagreement with the medical panel's assessment of her son's condition, that the correctness of an expert panel's conclusions is not a matter that goes to jurisdiction. She further contends that the authorities support the conclusion that a medical panel's failure to refer to a particular matter does not amount to a failure to take into account a relevant consideration.

38 Counsel for the second defendants concedes that the medical panel's finding that the plaintiff had experienced nightmares before the alleged fall directly conflicted with his mother's statement to the effect that the nightmares started after the incident. She argues that the issue was not so critical or significant in the determination as to be properly characterised as a failure to take account of a relevant consideration.

39 Senior counsel for the plaintiff replies that the Court cannot conclude with any confidence that the fact of the existence of nightmares before the incident was insignificant to the panel. He argues that the significance arises from the medical panel's disregard of the plaintiff's pre-existing "pervasive development disorder not otherwise specified" as it was obliged to do under the Act.

40 Ground 1 alleges jurisdictional error on the part of the medical panel. The particulars first allege its failure to take account of the plaintiff's mother's relevant instructions.

41 I am not persuaded that the medical panel did err, as alleged. I am not persuaded that it failed to take into account Mrs Campbell's evidence and, or failed to give effect to her role as the plaintiff's representative under s 28LZD and the 2006 directions.

42 I first note the medical panel's acknowledgment of Mrs Campbell's attendance and the information she provided, as well as its statement that it formed its opinion with reference to Dr Cole's report which sets out a lengthy history provided by Mrs Campbell some 15 months earlier, on 19 January 2006. (Parts of that history appear to have been quoted verbatim by the medical panel.) The medical panel's apparent adoption of the form of the pro-forma Reasons For Determination in schedule 5 to the 2006 directions and its failure to refer in sub-paragraph 3(b) to the history Mrs Campbell provided does not satisfy me that it ignored any of what she said to it.

43 Secondly, notwithstanding the agreed beneficial purpose of the Act and the ample meaning to be accorded to the term "representative" in that context, I am not persuaded that the statutory scheme required the medical panel to accept anything said by Mrs Campbell, as the plaintiff's representative, in preference either to information elicited from him in the course of his examination or to any other material before it. As was pointed out by counsel for the second defendants, notwithstanding the medical panel's obligation to provide procedural fairness, s 28LZ of the Act gives it broad powers to inform itself as it sees fit. The legislation does not seek to limit the discretion of the medical panel as to the manner of its examination or fact finding process in the exercise of its expertise.

44 The extent to which a medical panel should take account of information from a person under a disability or their representative will vary enormously, depending upon such things as the nature of the disability and the purpose and scope of any necessary examination. The nature of the representative's role will also vary according to the circumstances. The relative weight to be attributed to information provided by Mrs Campbell and the plaintiff himself was a matter for the medical panel's discretion, in the exercise of its expertise.

45 Here the expert psychiatrist and a neuro-psychiatrist members of the medical panel have made it clear that they took into account both their examination of the eight year old plaintiff and the history he gave, in the context of the claimed psychiatric injury, and an acknowledged relevant pre-existing condition. As counsel for the second defendants submits, it would be expected that the examination might involve some assessment involving questions and answers and the plaintiff. I am not persuaded that this approach indicated any misunderstanding or misconstruction of, or failure to give effect to the plaintiff's mother's role as his representative under the statutory scheme.

46 I am not persuaded to the contrary by the medical panel's failures to quote Mrs Campbell's evidence or the comparisons she makes in her affidavits between the medical panel's conclusions and the information she provided or by her observations or expressions of opinion in her affidavits.

47 The failure to refer to a particular piece of evidence does not necessarily demonstrate that a tribunal has erred by failing to consider it and the more reasonable inference may be that it preferred other evidence.[11] Although it may not have not referred to her evidence or even that from the plaintiff, in relation to particular factual findings, I think it reasonable to infer, in all the circumstances, that the medical panel rejected Mrs Campbell's account of events to the extent of any inconsistency. I note, in this regard, that Mrs Campbell's arguments are made in the context of Dr Cole's report and his conclusion some 15 months before the medical panel's examination that the plaintiff's condition had then appeared to be improving.

48 In reaching these conclusions I have taken into account all the challenges made in the materials, but I will now refer to some of Mrs Campbell's more specific complaints.

49 She challenges the medical panel's relevant findings on the basis that she had informed it of her layperson's view that the plaintiff's "psychological behaviour" had not improved since the accident and that he constantly asked persistent questions about death and blood. I am not persuaded that the medical panel fell into error by nonetheless concluding, in the exercise its specialist expertise and after examining the plaintiff and taking Dr Cole's report into account, that there had been a gradual improvement "in terms of his anxiety and preoccupation with blood and death and his general behaviour". The medical panel did also go on subsequently (in paragraph 4.14) to refer to its examination of the plaintiff's mental state and to conclude that, although his thoughts revealed some distress about the accident, they did not indicate any particular preoccupation with it on his part.

50 Mrs Campbell also refers to the medical panel's conclusion that the plaintiff's inappropriate behaviour in pulling down his pants had reduced. She maintains that she informed the medical panel of continuing inappropriate behaviour on his part. Dr Cole, however, had recorded her telling him that there had been a reduction in the incidents in which the plaintiff had pulled down his pants, before he stated the general conclusion that there had been an apparent improvement in his condition. Further, Mrs Campbell herself refers to the plaintiff's denials in relation to being teased at school and dropping his trousers, attributing them to his embarrassment. The medical panel was entitled to take all the information before it into account and apply its expertise when making any finding.

51 In relation to the issue as to whether or not the plaintiff had nightmares before the accident, I note that Mrs Campbell has not given evidence about what the plaintiff said about his nightmares, notwithstanding her uncontradicted testimony that she told the panel that he had not suffered from nightmares previously. She does, however, state that all questions were directed to the plaintiff and she heard him answer them unclearly, uncertainly and untruthfully (in her view, "because of his autism"). Mrs Campbell also refers to her view that the medical panel only had regard to the plaintiff's comments and did not ascertain whether they were correct by taking her evidence into account. Once again, the medical panel was entitled to take all the material before it into account and to reach its conclusion on the basis of that material, its own examination and its expertise. In all the circumstances, I am not satisfied that the medical panel relevantly erred by making its finding about the nightmares or by failing to refer to Mrs Campbell's account as to their occurrence.

52 The fact that the plaintiff lied about his father working with cars does not persuade me that the medical panel was not entitled to take account of his answers more generally or in relation to specific matters where it was inconsistent with his mother's account.

53 As to whether there is an inconsistency between Mrs Campbell's statement to the medical panel about the frequency of the plaintiff's visits to the paediatrician and its conclusion, I note that I am not persuaded by senior counsel for the plaintiff's argument that there is any ambiguity in the reasons in this regard. It seems to me that the medical panel was stating no more than that the plaintiff was seeing the paediatrician every three months at the date of the examination.

54 It is true that the medical panel indicated that it correctly disregarded the portion of psychiatric impairment attributable to the plaintiff's unrelated autism spectrum disorder. However, I am not persuaded that any inconsistency between Mrs Campbell's evidence and its conclusions assumes greater significance as a result. The medical panel identified "some autistic-type behaviours such as [the plaintiff] spinning his chair repeatedly". But none of the materials indicate that the experience of nightmares or the subject of any other of the medical panel's contested findings were related to that condition or significant with respect to the distinction between it and the plaintiff's psychiatric condition resulting from the accident.

55 Mrs Campbell's 15 May 2007 affidavit ultimately states her view that the reasons do not indicate that the medical panel took into account what she describes as the difficulties and stresses she and her husband suffered as a result of the plaintiff's psychological injuries consequential upon the accident. I am not however persuaded that such matters were relevant to the medical panel's task in making its assessment of the plaintiffs' level of psychiatric impairment or that any failure to refer to them demonstrates error on its part.

56 Ultimately, I am not persuaded that the medical panel erred by misconstruing Mrs Campbell's role as the plaintiff's representative under the statutory scheme or by failing to take her evidence into account and thereby excluding from its consideration some factor which should have affected determination, rendering its decision liable to review.[12] The Court has been referred to cases in which it was held that a medical panel erred by failing to mention material it was required by the statutory scheme to take into account.[13] I am not satisfied that this was such a case.

57 The particulars of the alleged jurisdictional error otherwise stated in paragraphs (b), (c) and (d) under Ground 1 in effect seek merits review of the medical panel's decision unavailable in this application.[14] The allegations relate to matters of assessment which fall within the specialist expertise of the members of the medical panel.

59 Ground 2 alleges an improper exercise of power by the medical panel justifying the quashing of its decision on the basis of its failure to take account of the relevant consideration of Mrs Campbell's evidence and its taking into account of irrelevant considerations as a result of its preference for other evidence.

60 As I have indicated in relation to Ground 1, I am not persuaded that the medical panel did fail to take Mrs Campbell's evidence into account, notwithstanding its omission to refer to expressly any information provided by her which was inconsistent with any of its own factual conclusions. Nor am I satisfied that it failed to take a relevant consideration into account or took an irrelevant consideration into account to the extent that it preferred the plaintiff's account or rejected Mrs Campbell's evidence on any other basis.

62 Ground 3 alleges error of law on the face of the record, repeating the particulars to Ground 1. I reject this challenge to the medical panel's reasons for the reasons given in my discussion of the challenge in Ground 1.

63 Ground 4 alternatively alleges that the reasons were insufficient to enable it to be determined whether an error of law had been made. The plaintiff argues that the reasons were insufficient to show whether or not the medical panel had taken Mrs Campbell's evidence into account, containing no express reference to it when it was inconsistent with any of its conclusions.

64 I am not persuaded that the heavy burden cast on the medical panel by the fact of the relative finality of its decision under s 28LZH of the Act,[15] or the stated aim in paragraph 9(c) of the 2006 directions to facilitate an "efficient and transparently thorough and fair" process required it to refer to Mrs Campbell's evidence wherever or to the extent that it might have been inconsistent with its conclusions.

65 I am not satisfied that any of the matters addressed by Mrs Campbell rendered the reasons deficient, bearing in mind their function and the often repeated direction that they should not be over zealously scrutinised.[16]

66 The absence of specific reference to evidence on a particular issue does not necessarily make the reasons inadequate and I have concluded that it is reasonable in this case to infer that the medical panel rejected Mrs Campbell's account to the extent of any alleged inconsistency. As Forrest J stated in his summary of applicable principles in Clarke v National Mutual Life Insurance Ltd,[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 rejection of Mrs Campbell's account to the extent of any inconsistency was reasonably to be inferred. I am not persuaded that the issues addressed by the medical panel required it to indicate why it had not accepted the material put to it identified by Mrs Campbell.[19]

67 The reasons, in my view, fall within the description of adequate reasons given by Winneke P in Masters v McCubbery,[20] in that they do "provide a succinct statement of why [the members of the medical panel] came to the conclusions which they did sufficient to enable the parties and the court to see that they have addressed their minds to relevant matters and have not acted unreasonably".[21] They are not deficient in the sense of failing to allow the plaintiff to know whether or not the medical panel erred.

[1] [1980] HCA 13; (1980) 144 CLR 13 at 35 per Gibbs, Stephen, Mason, Aickin and Wilson JJ.

[2] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82] per McHugh, Gummow and Hayne JJ.

[3] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 353-4 per Mason CJ.

[4] [1984] HCA 55; (1983-1984) 165 CLR 622 at 638 per Mason, Brennan, Deane and Dawson JJ.

[10] Citing QBE Workers' Compensation Ltd Insurance v Freisleben [1999] VSCA 207; [1999] 3 VR 401 at 415 per Phillips JA.

[11] Brambles Industries Ltd v Nisselle [2005] VSC 82 at [22].

[12] See : Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26; (1949) 78 CLR 353 at 360 per Dixon J.

[13] Cladingboel v Newcrest Mining & Ors [2007] VSC 345; Tralongo v Malios [2007] VSC 239.

[14] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2 per Brennan CJ,

[15] See: QBE Workers' Compensation Ltd v Freisleben [1999] VSCA 207; [1999] 3 VR 401 at 415 per Phillips JA.

[16] Minister for Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

[19] Compare: Clarke v National Mutual Life Insurance Ltd [2007] VSC 341.

Compensation Act 1985

At a glance

Court

Decision date

Before

Source

Judgment (160 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)