Plaintiffs v First Defendant

2 The plaintiffs' challenge to the determination by the medical panel was fundamentally that the determination had failed to identify a potentially compensable injury. The second defendant, Ms Susan Currie, has issued other proceedings in this Court in which she alleges that the plaintiffs to the present proceeding were negligent in the treatment they provided to her by failing to diagnose, and to provide to her proper treatment for, porphyria. Ms Currie claims general and special damages in those proceedings resulting from the negligence she alleges. Section 28LE, however, restricts her ability to recover damages for non-economic loss in any proceeding in respect of an injury caused by the fault of another person unless she can establish that she has suffered "significant injury". Section 28LF(1)(b) provides that an injury is a "significant injury" for the purposes of Part VBA, including the purposes of s 28LE, if a medical panel has determined under Division 5 that "the degree of impairment of the whole person resulting from the injury satisfies the threshold level".

3 The question referred to the medical panel was whether the degree of impairment resulting from the injury to the claimant alleged in the claim satisfied the threshold level. The claim was not in the terms of the claim alleged in the other proceedings but as set out in a letter of claim which had been written on her behalf to the plaintiffs. It was that claim which the solicitors for the first plaintiff ("Melbourne Health") referred to the medical panel. The answer given by the medical panel was its determination "that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim does satisfy the threshold level". This determination, if effective, would permit Ms Currie to recover damages for non-economic loss in respect of an injury in the other proceeding if she can establish liability, causation and injury from fault.

4 The plaintiffs contended that the determination made by the medical panel was ineffective because it failed to identify an injury caused by a potential tortfeasor. The plaintiffs' claim is that the medical panel failed to determine the degree of impairment resulting from the injury said to have been caused by the alleged actionable wrongdoer as distinct from an impairment from her condition generally. Ms Currie has been diagnosed with an hereditary condition. Her condition was first diagnosed in 1985 by a gynaecologist and was subsequently confirmed biochemically. The first episode may have occurred in 1976 but it was only from about 1992 that she received medical treatment at Melbourne Health from Dr Greenberg and Dr Holwill. The reasons of the medical panel concluded that Ms Currie was "suffering from porphyria, resulting in an altered mood state, cognitive dysfunction, a partial sensory loss in the right forearm in the distribution of the right radial and right median/musculocutaneous nerves, abdominal pain and bowel dysfunction". This, however, as the plaintiffs contended, was not the impairment that needed to be assessed to enliven the possibility of recovery as contemplated by s 28LE. The plaintiffs' contention was, in short, that the medical panel was required to identify an impairment alleged to have been caused by the actionable fault of another rather than to have assessed a condition that appears to be hereditary. Her condition may be a "disease" within the definition of "injury" for the purposes Part VBA, but unless the condition was caused by the fault of another it was not within the contemplation of Part VBA for the purposes of a determination by the medical panel.

5 The role of the medical panel under Part VBA of the Act is important as an independent body entrusted with the task of potentially enlivening an entitlement to recover damages for non-economic loss. An injured person's entitlement to recover damages for non-economic loss is dependent upon a determination by a medical panel that the degree of impairment resulting from the injury satisfies the threshold level. The task of making such a determination has been entrusted to doctors in their professional judgment as doctors.[1] It is fundamental to the exercise of the function and power of the medical panel that it address an injury capable of enlivening the right contemplated by s 28LE. It is not a sufficient discharge of the function or power of the medical panel that it find that a person suffers a condition which would satisfy the threshold level of an injury at large. What is essential to the operation of s 28LE is that a potentially actionable injury satisfies the threshold level. In a case such as the present, what the medical panel needs to do is to evaluate, as best it can, the degree of impairment referrable to the injury that might be the subject of a claim of damages for non-economic loss.

6 The material supplied to the medical panel for a determination included a certificate of assessment by Professor Desmond and a certificate of assessment by Associate Professor Stark. Professor Desmond described the injury he assessed as "hereditary coproporphyria with chronic abdominal pain and constipation". Associate Professor Stark described the injury he assessed as "1. Porphryia and/or exacerbation of porphryia; 2. Impairment of mental status; 3. 20% gradual loss of sensation in the distribution of right radial nerve". Neither identified an injury by reference to a compensable injury. That is to say, neither addressed their consideration to the threshold question required to be answered to permit the recovery of damages for non-economic loss as contemplated by s 28LE.

7 The members of the medical panel had much other material and took a detailed history from Ms Currie relating to porphryia. Its reasons noted her current symptoms and impairments resulting from porphryia and her medication regime. The medical panel's reasons recorded as part of its report and finding that they conducted a physical examination, a neuropsychiatric assessment and a cognitive assessment of Ms Currie. Its reasons recount that her treatment under Dr Greenberg and Dr Holwill at Melbourne Health dated from 1992 but reveal no attempt to link their determination with an injury referrable to that treatment or any failure of diagnosis. A fair reading of the reasons of the medical panel is that they were assessing her condition generally rather than an injury resulting from, occasioned by, or otherwise referrable to, the alleged conduct complained about by Ms Currie, even though the point of a determination by a medical panel under Part VBA is to enliven the possibility of recovering damages for non-economic loss for some injury "caused by the fault of another person". The point of the exercise is, in short, whether the injury alleged against the plaintiffs is a significant injury sufficient to enliven the possibility of recovering damages.

8 It was contended for Ms Currie that the medical panel had discharged its task because it responded to the question asked of it. The question posed for the medical panel's determination was:

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

The panel determined that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim does satisfy the threshold level.

The question directed attention to "the injury to the claimant alleged in the claim". The referral had been made by letter dated 5 December 2008 from solicitors on behalf of Melbourne Health. It was made pursuant to s 28LWE and, by virtue of the referral, Melbourne Health was required to submit to the medical panel, pursuant to s 28LZA, amongst other things, a notice in writing setting out "the medical question". In discharge of that obligation it was the solicitors acting for Melbourne Health who described the injury for consideration by the medical panel as follows:

We note that the injuries assessed on the Certificates are:

(i) porphyria and/or exacerbation of porphyria;

(ii) hereditary coproporphyria with chronic abdominal pain and constipation;

(iii) impairment of mental status; and

(iv) 20% gradual loss of sensation in the distribution of right radial nerve.

The particulars of injury set out by the claimant's solicitor are that the claimant has suffered attacks of left iliac fossa pain, severe headaches, photophobia, constant anxiety and depression including multiple suicide attempts. The claimant has also suffered from neurological symptoms including persistent foot and leg pain and numbness, tingling and numbness sensation in hands, paralysis and blindness. In addition, the claimant claims to experience difficulty balancing, abdominal pain, bladder control issues, difficulty with cognitive performance, loss of sleep and unusual pain after sexual intercourse.

According to the reports provided by the claimant's solicitor, the plaintiff was diagnosed with hereditary coproporphyria in 1985.

The injury thus presented by Melbourne Heath to the medical panel for its determination did not identify an injury in the terms it now contends the medical panel should have considered. Complaint was made about the presence or absence of the original letter of complaint sent on behalf of Ms Currie which it was contended might or could have identified the injury more precisely. In fact the injury as described in the letter of complaint from her solicitors is largely repeated verbatim in the second paragraph quoted above and, in my view, nothing turns upon the presence or absence of that letter. What is more important, however, is that Melbourne Health had the obligation to set out the medical question referred to the medical panel. It, and by extension its solicitors, were obliged to assist the medical panel in discharging its functions by providing a precise identification of the medical question, and in particular of the injury, that could be productive of an answer relevant to enliven any entitlement to seek compensation for non-economic loss as contemplated by s 28LE.

1"> 9 There are several reasons why it is important that the person referring a question for determination of the medical panel takes care in identifying precisely the question being referred. One reason is simply that the obligation is imposed upon that person by statute and, therefore, the obligation must be discharged dutifully. Another reason is that the purpose of the obligation upon that person is designed to assist the medical panel in the discharge of its statutory task. A third is that the process adopted in Part VBA is not intended to lay down concealed traps for navigation only by lawyers trained in technicalities and fine points. Most significantly, however, it is the need to ensure that there is a match between the question determined by a medical panel and the entitlement which may be enlivened through s 28LE. That section prevents recovery except to the extent that a person has suffered a "significant injury". For present purposes a "significant injury" is defined by s 28LF as an injury which "a Medical Panel has determined under Division 5 that the degree of impairment of the whole person resulting from the injury satisfies the threshold level". In other words, it is the medical panel's determination of an injury that enlivens, and effectively defines, the entitlement to recover damages for non-economic loss. It is important, if not essential, that there be identity between the injury determined by the medical panel and that in respect of which a claim for non-economic loss is made. The person referring a question for the determination of a medical panel must ensure that the question facilitates the proper discharge by the medical panel of its statutory duty. Melbourne Health ought to have ensured that the question referred to the medical panel was one which if answered was productive of an outcome that would clearly bear upon whether the entitlement to recover damages for non-economic loss as contemplated by s 28LE could be enlivened. A person suing to recover damages for non-economic loss should not be at risk that the defendant's defective formulation of a question for the determination by a medical panel secured by inadvertence, accident or otherwise, a defence that the right contemplated by s 28LE had not been enlivened. The "thresholds presuppose a liability for the injury".[2] The question referred to the medical panel must identify an injury capable of being maintained as a liability.

10 It was the defective identification by Melbourne Health of the injury for determination of a question by the medical panel that makes good the plaintiffs' contentions that the medical panel exceeded its jurisdiction, took into account irrelevant considerations and failed to take into account relevant considerations. The question for determination by the medical panel ought to have identified the injury by reference to the fault of another person. It was the injury identified in the referral which needed to be delineated as a potentially compensable injury to the claimant and specifically exclude from the description of the injury for assessment by the medical panel Ms Currie's hereditary coproporphryia or hereditary porphyria. If the medical panel took matters into account which it ought not to have taken into account, that was because the description of the injury in the context of the question asked for its determination led the medical panel to that outcome. If the determination by the medical panel was made by a failure to take into consideration matters which ought to have been taken into consideration, that was because the injury as described produced that outcome. It follows that I accept substantially the conclusion urged upon me by Melbourne Health but do so accepting the submissions made on behalf of Ms Currie that the medical panel was answering responsively the question asked of it by Melbourne Health.

11 The conclusion that the medical panel ought to have been asked a question identifying the injury with a compensable claim does not carry with it the conclusion that Melbourne Health was required to make findings about fault or causation. It is clear from the Act that questions about causation and fault are not for the medical panel.[3] Its role is essentially to determine something about the nature of the injury to permit a category of compensation to be sought in an appropriate forum. That accords with what was said in the second reading speech and the explanatory memorandum relevant to the amending provisions. In the second reading speech the Treasurer said:

Concern has been expressed that the current wording of the 'medical question' under the Act could still require the medical panel to consider issues of causation - that is, to advise on whether particular injuries were caused by the alleged incident that gave rise to the claim. The medical question has been revised to make it clear that the panel's [determination] [sic] is based on the injuries that the claimant has cited in his or her claim, and that issues relating to causation are therefore to be left to the parties or a court to determine.[4]

In the explanatory memorandum it was said that by the amending provisions the medical panel ought not "determine issues of causation".[5]

12 What is required of the medical panel is that it have referred to it the task of making a determination by reference to a clearly identified injury which enables the medical panel, as best it can as an expert body, to determine the threshold question needed to enliven a possible claim. The duty to make the reference fell upon and was assumed by Melbourne Health. It was for Melbourne Health to identify clearly and precisely the injury which in this proceeding it complains the medical panel did not identify or address. The statutory task of the medical panel is to make its determination of "the medical question" which has been referred to it pursuant to the Act. The determination it made on this occasion is responsive to the question asked but not productive of an answer capable of enlivening an entitlement to recover damages for economic loss as Ms Currie seeks to claim. That is because the question which ought to have been asked of the medical panel should have identified the injury as that which arose by, or was at least referable to, the acts or omissions alleged against Melbourne Health, Dr Greenberg and Dr Holwill from 1992. Melbourne Health did not do that merely by asserting in its letter that an hereditary condition might not be compensable. A submission in such terms is likely to misdirect attention rather than to define the injury for inquiry. The question for determination by the medical panel will, therefore, need to be reformulated by Melbourne Health.

13 It may not strictly be necessary for me to consider the separate challenge made to the decision, namely, that the reasons of the medical panel were so inadequate that its reasons should be quashed. It may be sufficient for me to note that I do not consider the medical panel to have given adequate reasons of its conclusion. Its reasons are set out in a document spanning eight pages. Most contain an account of its investigations and a summary of what it was told or what it found in other information. At the bottom of the seventh page there are three short paragraphs setting out the panel's conclusions. The eighth page has a number of other conclusions. It has not set out a process of reasoning from which a reader may determine why the conclusions have been reached upon the material previously set out. In those circumstances, I would also order the decision to be set aside. [6]

14 The last matter to consider is what orders I should make about the costs of this proceeding. Submissions were made during the course of the hearing about the possible costs orders including the possibility of costs being awarded against Melbourne Health. This is a case where the success of the complaint by Melbourne Health is referable to the way in which it posed the matter for determination by the medical panel pursuant to its statutory duty. In those circumstances the costs of Ms Currie should all be borne by Melbourne Health. No costs were sought against the members of the medical panel nor did they seek any and no orders for costs were separately sought against the other plaintiffs.

(1) The determination of the medical panel made on 27 February 2009 be set aside.

(2) The costs of the second defendant be paid for by the first named plaintiff.

(3) No further orders for costs.

[1] See Silver Top Taxi Service Ltd v Fish [2006] VSC 448 (Unreported, Warren CJ, 23 November 2006) [31] - [33].

[2] Spandideas v Vellar [2008] VSC 198 (Unreported, Kaye J, 6 June 2008) [39].

[3] Amendola v Coles Supermarkets Australia Pty Ltd [2008] VSC 36 (Unreported, Kaye J, 20 February 2008) [17], [30]-[32].

[4] Victoria, Parliamentary Debates, Legislative Assembly, 30 October 2003, 1425 (John Brumby).

[5] Explanatory Memorandum, Wrongs and Other Acts (Law of Negligence) Bill 2003 (Vic) 17; see also Dr Cuc Thi Thu Nguyen v Wen Lu (Unreported, Supreme Court of Victoria Court of Appeal, Winneke P and Charles JA, 24 September 2004).

[6] Western Health v Dr Gallichio [2009] VSC 134 (Unreported, Pagone J, 8 April 2009); Santos v Wadren Pty Ltd [2009] VSC 303 (Unreported, Smith J, 30 July 2009).