Summers v Director of Housing & Ors [2012] VSC 395

Supreme Court of Victoria|2012-09-07|Before: DIXON J

ADMINISTRATIVE LAW - Judicial review - Determination of Medical Panel - Threshold test of significant injury - Part VBA of the Wrongs Act 1958 - Jurisdictional error - Relevant considerations - Tribunal asking itself the wrong question - Meaning of 'claim' - Meaning of 'injury' - Scope and extent of claimed injuries - Wrongs Act 1958 ss 28LB, 28LC, 28LD, 28LE, 28LF, , , , , , , , , , , , ,

1 On 12 July 2007 as Mr Summers was leaving his home in Lord Street, Bacchus Marsh, leased from the Director of Housing, a cyclist on the public path outside his door forced him into an evasive manoeuvre. In so doing, Mr Summers twisted his back and fell against the door of his home. Mr Summers was then 75 years of age. Mr Summers sustained a back injury, aggravated a pre-existing back injury and developed an associated psychological or psychiatric injury of distress and reactive depression. He also claims to suffer, consequent on his back injury, an infection in both his legs and feet, which claim lies at the heart of this application.

2 Mr Summers seeks to recover damages for non-economic loss for his injuries from the Director. His entitlement to do so is restricted by s 28LE of the Wrongs Act 1958 (Vic), but Mr Summers claims his injuries are significant under Part VBA of the Wrongs Act. The Director referred certifications by medical practitioners that his injuries amounted to 'significant injuries' to a medical panel. The Medical Panel determined that Mr Summers' impairment was less than a 5% for his physical injuries. The Medical Panel's reasons did not include assessment of 'injury to ... right and left legs' or 'consequential infection in both legs and feet' in determining his whole person impairment.

3 Mr Summers contends that the Medical Panel erred in law by not taking into account, adequately or at all but relevant to the degree of his impairment, the infections in both legs and feet or vascular disorder skin disorder affecting both legs and feet. Mr Summers seeks an order that the Medical Panel's decision of 6 March 2012 be quashed and the matter be remitted back to the Deputy Convenor of the Medical Panels for determination by a differently constituted medical panel.

The statutory scheme under the Wrongs Act 1958

4 Medical panels are constituted to assess impairment from injuries under both the Accident Compensation Act 1985 and Part VBA of the Wrongs Act 1958, but for different reasons. Under the Wrongs Act, where damages are claimed for non-economic loss other than in excluded circumstances,[1] a person is not entitled to recover damages caused by the fault of another unless the person injured has suffered significant injury.[2] A significant injury is defined in s 28LF of the Act and, relevantly to this proceeding, requires that the degree of non-psychiatric impairment to the whole person from the injury be assessed at more than 5%. An approved medical practitioner must assess impairment and a respondent to a claim, when served with a medical practitioner's certificate of assessment, may refer the assessment of impairment to a medical panel. Part VBA provides the mechanism for referring as a 'medical question' that assessment of impairment to a panel. A panel's assessment prevails over a certificate from an approved medical practitioner.

5 Medical panels are administrative tribunals whose decisions are reviewable under the Administrative Law Act 1978.[3] The substantive provisions of Part VBA are entrenched as substantive law and are not procedural in nature.[4]

6 To better follow the contentions put to the court in this proceeding I will set out, step by step, the relevant provisions of Part VBA that govern the process for Mr Summers' assessment by a medical panel.

claimant means a person who makes or is entitled to make a claim for damages that relate to the injury to a person caused by the fault of another person;

impairment means permanent impairment;

injury means personal or bodily injury and include:-

(b) psychological or psychiatric injury; and

(c) disease; and

(d) aggravation, acceleration or recurrence of an injury or disease.

medical question in relation to a claim for damages, means a question as to whether the degree of impairment resulting from injury to the claimant alleged in the claim satisfies the threshold level; ...

8 Fundamentally, Part VBA is concerned with ascertaining the degree of permanent impairment for the threshold into those common law claims for damages to which the Part applies.

9 Once an injured person proposing to claim common law damages has a certificate of assessment, s 28LT obliges the claimant to provide the respondent with any certificates of assessment and the prescribed information, which may include the following:

(d) the incident out of which the alleged injury arose;

(e) any medical practitioner who has treated the injury.[5]

The respondent must respond to the certificate served, pursuant to s 28LW of the Act, or be deemed to have accepted it. A respondent may under s 28LWE refer a 'medical question in relation to the assessment' to a medical panel within certain time frames.

10 The respondent, who must provide prescribed information[6] and relevant assessment certificates,[7] frames the medical question that is asked of a medical panel. The question is defined, as I have noted, to assessment of the degree of impairment resulting from injury to the claimant alleged by a claim made or available to be made against that respondent, which relates to that injury. The words 'alleged in the claim' in the definition of 'medical question' relate to the phrase 'injury to the claimant'. The claimant can be asked to meet with the panel and answer questions, supply copies of documents that relate to the medical question and submit to medical examination by, or for, the panel.[8] A medical panel's procedures are informal and to be directed to a speedy but proper consideration of the reference to it.[9]

11 A medical panel must assess a claimant's impairment for itself in accordance with Division 3 of Part VBA of the Act.[10] The assessment is of the impairment resulting from the claimant's alleged injury. Division 3 requires that that the assessment be conducted in accordance with the AMA Guides[11] or other prescribed methods,[12] and in accordance with operational guidelines (if any exist) as to the use of the Guides or methods issued by the Minister.

12 Regard is not to be had to secondary psychiatric impairment.[13] Section 28LL(1) provides that if a person has more than one impairment resulting from injuries which arose out of the same incident, all of those impairments must be included in the one assessment. Section 28LL(2) requires that impairments resulting from injuries arising out of the same incident should be assessed together using the combination tables in the Guides.

13 The Act does not require a medical panel to disclose the degree of impairment assessed but to simply state whether on its assessment the impairment satisfies the statutory threshold.[14] The medical panel gives reasons for its determination.[15]

14 Following the incident, Mr Summers sought medical attention. On 16 November 2009, his solicitors forwarded Prescribed Information to the Director, which described Mr Summers' injuries as 'Injury to his back, left and right legs'.

15 On 10 June 2011, Mr Summers again served Prescribed Information on the Director, together with an Assessment Certificate from Dr Nathan Serry. This certificate assessed Mr Summers' psychological impairment as more than 10% describing that he suffered from 'Major depression with anxious features and with features of traumatisation'.

16 On 10 July 2010, Mr Summers served on the Director a generally endorsed writ. Mr Summers' writ describes his injuries as 'Injury to his back, right and left legs' and claimed his damages suffered were 'ongoing pain and suffering and loss of amenities'.

17 On 23 June 2011, Dr Anthony Capes certified his assessment of the degree of Mr Summers' physical impairment at more than 5% and the degree of his psychiatric impairment at more than 10%. Dr Capes described a 'twisting incident to his lower back and still has significant problems with lower back pain and left leg pain'. This certificate was served on the Director.

18 On 12 August 2011, the Director referred the question of Mr Summers' impairment from his injuries to the Convenor of Medical Panels. The specific medical question asked was the statutory[16] question:

Does the degree of impairment resulting from the psychiatric injury to the plaintiff incurred as a result of the incident satisfy the threshold level under Part VBA of the Wrongs Act?

With this referral, the Director provided the Convener with the writ, the Prescribed Information and Certificate of Dr Serry, and a report from Dr Nicholas Ingram, a psychiatrist who examined Mr Summers for the Director. By the Prescribed Information,[17] the Director did not say 'Injury to his back, left and right legs' following the wording from the Prescribed Information[18] provided to it, but particularised the injury as 'an aggravation of an existing back injury and psychiatric injuries as a result of the incident'.

19 On 16 August 2011 when acknowledging the referral regarding Mr Summers, the Convenor stated that the Panel would examine Mr Summers, and inquiring whether Mr Summers and the Director agreed that the injuries that Mr Summers claimed to have sustained were:

The Convener sought confirmation of agreement on the injuries within seven days, informing the solicitors that he would not nominate a panel until the parties confirmed such agreement.

20 On 22 August 2011, Mr Summer's solicitors informed the Convenor that Mr Summers' claimed injuries were:

Mr Summer's solicitors provided copies of a range of medical reports, letters, results of investigations and other documents for the Medical Panel's consideration.

21 On 26 August 2011, Mr Summers served on the Director an amended statement of claim that listed as the particulars of the plaintiff's injuries:

This description is not identical to the description of the claimed injuries provided to the Convener by Mr Summers' solicitors a few days earlier.

22 On 2 September 2011, the solicitors for the Director invited the Convenor to delay Mr Summers' assessment by a medical panel until after 24 October 2011, to permit the Director to respond to Dr Capes' assessment certificate. Mr Summers consented to this deferral. The Director arranged for Mr Summers to be assessed by an orthopaedic surgeon, Mr Clive Jones, in November 2011.

23 On 16 September 2011, Mr Summers' solicitors sent the Convenor a letter from Dr Paul Williams dated 2 September 2011 regarding his present condition and his claimed injuries. Dr Williams was Mr Summers' treating general practitioner. This letter stated:

Mr Summers has continued to have significant problems from low back pain with radiation into both legs. He has been managed by the Pain Management Unit (sic) at RMH with neuroplasty procedures involving epidural steroid and anaesthetic injections. On several occasions these procedures have had to be cancelled due to cellulitis affecting both of his lower legs. He has had variable success with these and currently his pain is significantly worse in his left leg compared to his right.

The legs have been inflamed with episodes of exacerbations of cellulitis dating since July 2008, at a time when he was attending hydrotherapy. Since that time he has had issues of swelling with both legs, episodic ulceration and bouts of cellulitis requiring antibiotic treatment as well as the application of various topical preparations. He was seen by Dermatologist Dr J. Yeatman at Melton Health in October 2010, who believed the underlying diagnosis was dermatitis or eczema.

The underlying cause for his recurring infection is no doubt multifactorial including skin cracking from underlying skin condition, possible aggravation by water at hydrotherapy, lack of mobility and dependent oedema secondary to his back complaint. His back prevents him from being able to care for his feet and so required nursing care to apply emollient etc to the feet.

24 Based on Mr Jones' assessment, the Director proceeded with the Panel referral, informing the Convener on 1 December 2011 that the medical question for determination was: 'Does the degree of impairment resulting from the injury to the claimant as alleged in the claim satisfy the threshold level under Part VBA of the Wrongs Act?' The Director told the Panel Mr Summers' claimed injuries were:

arising from the plaintiff manoeuvring out of the way of a passing cyclist. The Director enclosed a copy of the plaintiff's amended statement of claim dated 26 August 2011, the report of Mr Jones dated 22 November 2011, and other documents. There was no explicit evidence of agreement about the claimed injuries between Mr Summers and the Director. While the Director's description of the claimed injuries correlated with the amended statement of claim, it did not correlate with the correspondence between the Convener and Mr Summer's solicitors, of which the Director was aware.

25 On 18 January 2012, the Convenor stated in correspondence, by way of confirmation, that a Certificate of Determination was required concerning the following injuries alleged in the claim: 'injury to lumbar spine, aggravation of lumbar disc degeneration, referred pain into the lower limbs, development of reactive depression'. The Convener arranged for two medical assessments of Mr Summers, one by an orthopaedic surgeon and a general practitioner, and the other by two psychiatrists.

26 Mr Summers did not respond to this letter from the Convenor, particularly to direct attention to the earlier explicit identification to the Convener of 'consequential infection in both legs and feet' as a relevant iteration of his claimed injuries.

The Medical Panel's determination and its reasoning

27 On 8 March 2012, the Panel determined that Mr Summers level of impairment did not satisfy the threshold for physical injuries (5% impairment) or psychiatric injuries (10% impairment). I need not deal with the Panel's approach to assessment of impairment from psychiatric injury, which was to assess the degree of psychiatric impairment as not exceeding 10% after disregarding part of the impairment as secondary to the claimed physical injuries[19] and part as pre-existing and arising from unrelated causes.[20]

28 The Panel described the injuries claimed in the terms dictated by the Director on 1 December 2011, rather than in the language used by Mr Summers' solicitors and Dr Williams in correspondence with the Convener. However, the Panel's reasons contained references regarding the condition of, and symptoms experienced in, Mr Summers' legs and feet:

Pain began extending into one of his legs.

The claimant told the Panel that he has been told that he will need repeat epidural injections every six months but this has been delayed by recurrent infections of his feet.

The claimant told the Panel that he was attending for hydrotherapy but this has also been put on hold due to infection in his toes and legs.

On physical examination the Panel noted that the claimant walked with a four-wheeled walking frame. He wore tubigrip support stockings below the knees bilateral which were removed and showed brawny lower extremity oedema with reddened skin but without local ulceration ... Neurological assessment demonstrated symmetrical knees reflexes but absent angle jerks bilaterally. There was some patchy diminution of sensation overlapping the left L5 dermatome. Assessment of power was modified by pain and assessment of wasting modified by the presence of oedema. The Panel noted significant difficulties in establishing whether or not there was objective clinical evidence of radiculopathy due to previous lower extremity injuries and surgery and concurrent medical conditions but considered overall that the absence of reflexes with some left L5 sensory diminution when viewed alongside the medical imaging provided sufficient clinical evidence for the Panel to concluded that there was left lower extremity radiculopathy.

29 The Panel identified the basic mechanics of the incident and the incidence of the initial symptoms. The Panel's references to infections in Mr Summers' toes and legs are made in the context of ongoing treatment for his primary symptoms; central low back pain, pain and a tingling sensation that intermittently radiates into his left leg, more occasional right leg pain and tingling in his right foot and toes. Mr Summers' mobility and physical capabilities were restricted. The Panel considered whether there was left lower extremity radiculopathy but beyond noting symptoms of Mr Summers' claims of injury in both legs and feet, described at its highest as 'concurrent medical conditions', the Panel neither analysed such injuries for assessment nor dismissed such injuries and their symptoms as irrelevant.

30 In contrast, Mr Summers complained of right neck and shoulder pain that the Panel dismissed as unrelated to the incident. The Panel considered Mr Summers prior medical history, which included lower lumbar decompression procedures in the early 1970's following a significant lumbar spine crush fracture injury in a car accident in 1967, and a back injury in 1990 when he was struck by a forklift. It concluded:

The claimant is currently suffering from an aggravation of pre-existing lower lumbar degenerative changes and symptomatic lateral recess stenosis with clinical evidence of radiculopathy in the presence of a pre-existing previous L4 and L5 spine operation without loss of motion segment integrity or radiculopathy.

31 The Panel assessed impairment from the physical injuries claimed, described as the claimant's lumbosacral spine, using the Guides and nominating that the assessment was in accordance with Specific Procedures and Directions in Section 3.3f on page 101 of the Guides with whole of person impairment assessed in accordance with Tables 70 and 72 of Chapter 3. In doing so, the Panel considered spinal impairment could be adequately assessed using the Diagnosis Related Estimates Model. The Panel directed itself to the issue of the level of impairment that ought to be disregarded under s 28LL(3) of the Act as impairment from unrelated causes or injuries. It identified as relevant in this context only Mr Summers previous spine operation.

After disregarding impairment from pre-existing unrelated causes or injuries and which are not a potentially compensable injury in accordance with section 28LL(3) of the Wrongs Act 1958, the degree of whole person impairment resulting from the physical injuries to the claimant alleged in the claim is not more than 5% which is permanent.

33 Mr Summers contended that the Medical Panel committed jurisdictional error as it identified the wrong issue to be determined, asked itself the wrong question, or ignored relevant considerations. Had the Medical Panel considered all of the injuries claimed, the decision may have been different. Its determination was made in error and should be quashed.

34 The Medical Panel is required to assess the injuries alleged in the claim. The injuries to Mr Summers in the incident included the consequential infection in both legs and feet, which ought to have been included in the assessment of the degree of impairment caused by the injuries alleged in the claim. Mr Summers drew a distinction between a claim for damages and a proceeding for damages contending that Part VBA of the Act is not concerned with what is claimed in common law proceedings or identifiable in pleadings. The distinction is identified by reference to Division 6 of Part VBA that deals proceedings brought on the claim. Further, a medical panel can be referred a question before initiation of proceedings for a common law claim. The statutory scheme envisages that a medical panel will be informed about a claimant's injuries from sources other than court pleadings.

35 The core of the medical panel procedure under Part VBA is the referral process that starts with a certificate of assessment and prescribed information being served on the respondent. One possible outcome at this stage is that the respondent accepts that the claimant has suffered a significant injury. Regulation 6 provides that the prescribed information should set out the 'details of the injury suffered as a result of the incident the claimant alleges.' Mr Summers' initial Prescribed Information described injuries 'to his back, right and left legs'. From that initial communication, the Director knew the injury to the right and left legs (namely the consequential infection) was part of the injury claimed by Mr Summers.

36 When it referred the assessment to a medical panel, the Director was required by regulation 7 to provide prescribed information to the Convener. The correlation in the language used between these regulations dictates that the information provided by the claimant ought to be repeated to the medical panel, but the Director inappropriately described the injury in different terms declining to use the original description 'injury to his back, left and right legs' and misstating the claimed injury. Further, the Medical Panel should have considered that Mr Summers' claimed injuries included the injuries his solicitors identified to the Convenor on 22 August 2011, which included 'consequential infection in both legs and feet'. Mr Summers argued that the medical reports of Dr Capes and Dr Williams, provided to the Panel, confirmed the existence of Mr Summers' consequential leg infection but were ultimately not considered or included within the frame of reference of Mr Summers' claim.

37 The initial referral to the Medical Panel asked a medical question of the Panel concerning the threshold of Mr Summers' psychiatric injury that did not concern his physical injuries. However, the amended referral in December 2011 included a referral on the question of his physical injuries as well as the psychiatric injuries. Mr Summers submitted that this secondary amended referral confused the process undertaken by the Medical Panel as it had previously sought agreement between the parties regarding the injuries claimed by Mr Summers. Mr Summers maintained a consistent description of his injuries in his communications with the Panel. The Director provided the Medical Panel with a copy of the amended statement of claim on 1 December 2011. Mr Summers argued that the injuries described in this document wrongly became what the Director requested the Medical Panel assess in their amended referral.

38 Addressing the relevance of this consideration, Mr Summers drew a distinction between medical causation and legal causation, submitting that although Part VBA is drafted to withdraw, from medical practitioners, issues of legal causation of injuries arising from incidents, the medical causation of impairment by injury is plainly a matter for a medical panel. A medical panel is not restricted by the scope of the initial medical assessment, and the statutory scheme requires a fresh assessment of the injuries alleged by the claimant. What is required is a medical assessment of the impairment caused, or resulting from, the injury to the claimant. Whether the consequential infection in both legs and feet were injuries caused in the incident was not an issue for the Panel but whether such injury contributed to permanent whole of body impairment was a relevant consideration.

39 Mr Summers submitted that the Medical Panel's reasons reveal that the Panel may have observed and been aware of his leg condition but only for the purposes of completing his medical history. The Panel did not consider whether it contributed to his impairment, as they did not consider it as a claimed injury. The Panel did not reason whether this injury was part of the claim and therefore relevant to his assessable impairments. The Panel was bound to consider all impairments resulting from injuries which arose out of the same incident in the one assessment. Mr Summers submitted that the Panel's conclusion regarding radiculopathy reveals proper reasoning applied to the lower back injury, conspicuously absent from consideration of the leg infection.

40 Mr Summers emphasised the reasoning concerning the spinal injury showed attention to that part of the Guides dealing with the musculoskeletal system, drawing attention to the absence of like reasoning concerning an assessment of a skin condition that reveals the condition was not relevantly considered.

41 The Director contends that the Panel considered all relevant matters and its determination is not open to review for error.

42 The Director contended that where an applicant has issued common law pleadings then the injuries alleged within that document become his claim for the purposes of Part VBA of the Act and then determine the scope of the Medical Panel's assessment. As a result, the injuries that Mr Summers alleged in the claim were the injuries described in the amended statement of claim. The Director contended that as 'claim' is connected to 'claim for damages' (in the definition of 'claimant') then by definition 'medical question' relates to the injury 'alleged in the claim for damages'. As neither the 'injury to right and left legs' (found in the initial Prescribed Information form) or the 'consequential infection of both legs and feet' (found in the letter from Mr Summers' solicitors to the Medical Panel dated 22 August 2011) were repeated in the amended statement of claim, such injury cannot be considered to be 'alleged in the claim' for the purposes of a Part VBA assessment.

43 Notwithstanding that 'injury to right and left legs' was in the original prescribed information served on the Director in 2009, it was not referred to in either assessment certificate. As no assessment certificates identified consequential infection in the legs, such an injury was not part of the injury to the claimant alleged in the claim. The prescribed information does not form part of the alleged claim and is an accompanying document to the certificate of assessment. Section 28LT(1) identified the certificate as that 'on which the claimant intends to rely'. Alternatively, the Director submitted that any prescribed information document should be read down to be consistent with certificates of assessment and, when served, a statement of claim. The Director contended that the statutory scheme, by s 28LWE(1), directs that the medical question is derived from the information provided by the assessment certificates. A medical panel is constrained to look only at medical questions stemming from the assessment certificate.

44 Alternatively, the Director contended that from references to the condition of Mr Summers' legs in the Panel's reasons, the Panel did not err in making its decision and did consider the leg infection. That the AMA Guides advise how to assess skin conditions does establish that that Panel erred by not referring to that section of the Guides in their reasons. The Director submitted that the court should not be distracted by whether or how the Medical Panel referred to or used the AMA Guides in their reasoning, but rather whether it answered the medical question referred to it, which it did.

45 The Director contended that a Medical Panel is not required to speculate about any or all injuries which might possibly be alleged in a claim or whether injuries that are mentioned elsewhere than in court pleadings might be or might later become injuries alleged in the claim. The Medical Panel is not required to assume that references by a treating doctor necessarily identify an injury alleged in the claim.

46 The Director submitted that as s 28LZA requires the respondent referring a medical question to a medical panel to submit a copy of any relevant certificate of assessment served on it. When analysing the applicant's claim, the Medical Panel need not refer to any other material provided to it that is not supported by the assessment certificate, such as the report of Dr Williams.

47 For the reasons that follow, I consider that the Panel did err and its determination will be quashed.

48 The High Court of Australia in Minister for Immigration and Multicultural Affairs v Yusuf [21] stated the test for jurisdictional error.

It is necessary, however, to understand what is meant by 'jurisdictional error' under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal)

'falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it'.

'Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.

49 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[22] Mason J collected the propositions established by the decided cases relevant to the failure of a decision-maker to take into account a relevant consideration or taking into account irrelevant considerations in making an administrative decision. Those propositions are:

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator.

50 I do not consider that the Panel did take into account properly, or at all, Mr Summers injury constituted by the infection of his legs and feet. Under the Guides, a class 1 skin disorder, in the range of 0% to 9% impairment, may exist where signs and symptoms of skin disorder are present or only intermittently present and there is no limitation in the performance of few activities of daily living and no treatment or intermittent treatment is required. The nature of this injury and the extent of any impairment is a matter for a medical panel but I am satisfied that a medical panel's determination may have been different had the condition of Mr Summers' legs and feet and the question of any resulting impairment been addressed. As Mason CJ stated in Australian Broadcasting Tribunal v Bond:[23]

A decision does not involve an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.

51 The proper understanding of the terms 'injury' and 'claimed' lie at the crux of this dispute. The term injury is not to be narrowly construed. The potential breadth of the notion of 'injury' under Part VBA is controlled by its definition in s 28LB, the limitations on the application of Part VBA in s 28LC, and the causal connection stipulated in s 28LE. In Barwon Spinners Pty Ltd v Podolak,[24] the Court of Appeal stated of s 134AB(1) of the Accident Compensation Act 1985 (Vic):

In short, in subs (1) we see no reason at all to conclude that 'injury' is used in any sense other than that which is common or ordinary throughout the Act: it does not refer to the impairment of a body function which (at least in cases like the present) may be the basis for concluding that the injury is serious injury. Subsection (1) speaks first and foremost of the plaintiff's having (in substance) a compensable injury, a concept which surely derives from the preceding provisions of the Act.[25]

52 In Georgopoulos v Silaforts Painting Pty Ltd,[26] the Court of Appeal said of the meaning of 'injury' identified in Barwon Spinners:

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

An injury in this comprehensive sense is commonly described as the 'compensable injury'[27] as it was in Barwon Spinners and we shall adopt that term. It is the compensable injury which is the starting point for the interpretation of s 134AB. (footnotes in original)

53 Pagone J in Western Health v Gallichio[28] explained another sense in which the concept of injury is broad and compendious.

A medical panel charged with the task of making an assessment under the Wrongs Act is required to consider both the injury and its sequelae or consequences_._ The medical panel's consideration of the 'post surgical scarring' is, in my view, to be seen as a consideration by it of the consequences of the incident which was said to have given rise to the neurocardiogenic syncope as the impairment. The referral letter may have been carelessly inaccurate in its description of the injury but, I think, a fair reading of the referral letter on its own or in the context of all of the materials available to the medical panel makes clear that the 'neurocardiogenic syncope' was relevantly the impairment said to have resulted from the injury occasioned by the insertion of the permanent pacemaker on 23 May 2006. Seen in that light the medical panel's consideration of the 'post surgical scarring' is sequelae or the consequence of the injury.[29]

54 In my opinion, the broad compendious nature of the concept of 'injury', identified in the context of the Accident Compensation Act, is the sense in which that term is used in the Act, bearing in mind both the statutory purpose and the context in which the concept 'claimed' is used in Part VBA in a wide, unrestricted sense. The thrust of the director's submission was that once a claim has been articulated in pleadings then the injury alleged in the claim is defined by those pleadings and it is in relation to that injury that a medical panel must determine the referred medical question. The Director suggested its submission was supported by Bray v Hoffmann-La Roche Ltd[30] where the Full Federal Court considered the meaning of 'claim' in the context of representative or class actions. The term does not incorporate a potential claim or permit speculation about what claims might be made. The Director suggested that the statute clearly requires a claim to have actually been made, a conclusion drawn from the nature of a medical question.

55 Further, I was referred in this context to the Second Reading Speech for the Wrongs and Other Acts (Law of Negligence) Bill 2003:[31]

The medical question has been revised to make it clear that the Panel's [determination] is based on the injuries that the claimant has cited in his or her claim, and that issues relating to causation are therefore left to the parties or a court to determine.

The Director also referred me to Chua v Lothian,[32] Chua v Newman-Morris[33] and Melbourne Health v Lloyd.[34]

56 I do not accept the submission that the concept of claim in Part VBA of the Act is restricted in the manner for which the Director contends. In the first place, so much is clear from the definition of 'claimant' and the context evident from the overall purposes of the Part, including s 28LZM, which applies to a 'claimant' who brings a proceeding in a court in respect of a claim for damages for non-economic loss to which the Part applies.

57 The concept of claim can include a potential claim, provided an injury has been suffered. As Pagone J rightly observed in Melbourne Health v Lloyd:[35]

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 referred to the medical panel.

The reference to 'the other proceedings' is a reference to the proceeding that is contemplated in s 28LE.

1"> 58 Nothing that is said in either Chua v Newman-Morris or Chua v Lothian is inconsistent with this conclusion. Those cases are to be understood in the context of the claimant's injury and the issue of legal or medical causation that was being explained. The injury was an arthrodesis of the left foot by a medical procedure caused, it was alleged, by medical negligence. A significant pre-existing injury provided the occasion for that medical negligence.

59 Emerton J[36] stated, when explaining the context of the then new definition of 'medical question':

This does not support an argument that the medical panel can only consider injuries 'at large'. To the contrary, it makes plain that the Panel is concerned with the injury or injuries alleged in the claim. The Panel must consider the injury allegedly caused by the tortfeasor and assume that it was caused by the tortfeasor as alleged. However, that does not absolve the Panel of responsibility to correctly identify - for the purposes of assessing the degree of impairment - the injury which is alleged to have been caused by the tortfeasor.
The requirement that the Panel assess impairment arising from the injury that occurred as a result of the incident which is the basis for the claim does not require the Panel to determine whether the plaintiff caused the injury in respect of which damages are sought. Rather, it requires the Panel to assess the degree of impairment resulting from a particular injury - the injury in respect of which damages are sought. In this case, it is the injury suffered by the plaintiff as a result of delay in the treatment and diagnosis of a pre-existing dysfunction of the lower left leg and ankle.
That this is the relevant injury was recognised by both the plaintiff and the claimant in the material that was provided to the Panel, including:
- the description of the 'incident' in the referral;
- the questions Mr Kahn was asked to answer by the claimant's solicitors and, in particular, in Mr Kahn's response to the question concerning the percentage by which the claimant's impairment was greater than it would have been if the injury had been properly diagnosed and treated;
- the claimant's submission to the Panel, referring to 'far worse outcome' and 'the lost opportunity for a better outcome'.
Most importantly, the medical question itself required the Panel to assess whether the degree of impairment resulting from 'the injury alleged in the claim' satisfied the threshold level. The injury alleged in the claim is not coextensive with the injury 'at large'.
This analysis is consistent with s 28LL of the Wrongs Act, which concerns the assessment of injuries arising out of the same 'incident'. Injuries arising from the one incident must be included in the one assessment.[37] Conversely, impairments from unrelated injuries or causes are to be disregarded in making an assessment.[38]

60 Chua v Lowthian was concerned again with the same claimant and the same injury. Relevantly, Osborn J observed:[39]

The medical question in the present case thus required the Panel to first identify a potentially compensable injury and then to assess whether that injury caused the threshold level of impairment.

It was not for the Panel to determine whether in fact the injury was caused by the negligence alleged in the common law proceeding. Nevertheless, it must ascertain the existence of an injury as the starting point of its inquiry.

61 The two Chua cases are concerned with different considerations that arise from the particular nature of the injury suffered by that claimant and the need to distinguish between the assessment of legal causation of an injury, which is not the Panel's role and the assessment of medical causation of impairment, which is the Panel's role. However, in that context, the obligation upon the Panel to properly identify the injury for which impairment is being assessed was emphasised in each decision.

62 Further, the duty to refer to a medical panel falls upon the respondent and in this case was assumed by the Director. It was for the Director to identify clearly and precisely the injury. That duty is not, in my view, discharged by a narrow and legalistic approach to the task. It is, for example, well known that pleadings can be, and often are, amended. It is also common for lawyers to conflate concepts of injuries, symptoms and impairments when particularising claims that may confuse or mislead medical practitioners. I agree with the pertinent observation made by Pagone J in Melbourne Health v Lloyd.[40]

... 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'.[41] The question referred to the medical panel must identify an injury capable of being maintained as a liability.

63 In the present case, the proper approach was not to identify the injury in a restricted or narrow way. Mr Summers had identified the injury for which he intended to seek compensation to include the consequent infection to his legs and toes sufficiently in the prescribed particulars, medical correspondence, and when he gave his history to the Panel on examination. The Director had all that material yet chose to only rely on aspects of it. Mr Summers' statement of claim is not a document that plays any role in the statutory scheme under Part VBA. The Director had no reason to constrain Mr Summers' claimed injuries from what had been identified when his solicitors responded to the direct request from the Convenor and what was in the prescribed information. The Director ought to have sought clarification of the discrepancy between that letter and the description in the statement of claim or provided the more compendious description.[42] Respondents well understand that pleadings are amended for many reasons including a want of care when initially drawn.

64 To succeed on this application, Mr Summers must show more than that the Medical Panel was free to have regard to the consequent infection of his legs and toes. The court has no jurisdiction to visit the exercise of that statutory power unless the Medical Panel was bound to have regard to that matter or to matters of that kind in making its determination. As Brennan J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:[43]

Apart from express provision, a statute may impliedly require the repository of a power in deciding on its exercise to have regard to certain considerations. The subject matter, scope and purpose of the statute must be considered to determine whether the repository is bound to have regard to any and what matters. (Citations omitted)

65 The particular provision of the statute that is important is s 28LL which primarily directs attention at matters that the Panel is bound to consider and those matters which it is bound to disregard. In particular, if a person has more than one impairment resulting from injuries that arose out of the same incident, all of those impairments must be included in the one assessment, and attention is directed to the combination tables in the AMI guides when there are multiple impairments to be assessed.

66 It ought also to be borne in mind that assessment of impairment is to be made in accordance with the operational guidelines as to the use of the AMA Guides. It is convenient to recall what Kyrou J said about interpreting the Guides in HJ Heinz Co Australia Ltd v Kotzman:[44]

The interpretation of the Guides is a question of law.[45] The determination of a level of impairment is a question of fact.[46]
It has been said that to the extent that an Act requires determinations of impairment to be made in accordance with the Guides, the Guides has the force of law[47] and is a legislative document.[48]
However, the Guides is, as its title suggests, a guide.[49] It was written by expert medical practitioners and not by statutory draftspeople, and should not be overlaid with legalistic - or a lawyer's precise - interpretation.[50] It is of paramount importance to be faithful to the Guides' plain words.[51] The Guides should not be interpreted as if it was a statute.[52]
The use of the Guides is designed to promote precision, certainty and consistency.[53] Its purpose is to make as objective as possible the process of estimating impairment by reference to sufficient medical and non-medical information to justify the estimate.[54]
If there is any inconsistency between the AC Act and the Guides, the AC Act will prevail. If there is any inconsistency between the text in the Guides and an example which seeks to illustrate what is said in the text, the text will prevail.[55]

67 Reference to those parts of the Guides that deal with assessment and evaluation reveal that it is the duty of the Panel, when discharging its obligation under Division 3, to make a proper medical evaluation of the consequences of the injuries arising from the incident. So much is clear not just from the language of the Guides as a whole but, in particular, from Chapter 2. As other cases have explained, this task does not involve assessing legal causation for injuries arising from an incident but is a necessary task for the assessment of impairment resulting from injuries claimed from an incident. Being bound to assess impairment for itself, the Panel was bound to make its assessment in the specified operational manner and a proper medical evaluation of the consequences of the injuries arising from the incident was required. This presumably is one reason why a panel is informed by the prescribed information about the circumstances of the incident. That medical assessment is informed, but not limited, by descriptions of injuries, symptoms and impairments given by lawyers. A proper medical assessment in the manner required by the Guides ought to have included assessment of the degree of impairment, if any, from the observed skin condition described as 'consequential infection of both legs and feet'.

68 For the above reasons I am satisfied that the Panel's determination is infected with jurisdictional error. The opinion of the Medical Panel, certified by Certificate of Determination (ref M111/2376) dated 6 March 2012, will be quashed. I will direct that the medical question be remitted to a differently constituted panel to be reconsidered according to law based on the injuries described in the letter from Mr Summers' solicitors to the Convenor dated 22 August 2011.

[2] Section 28LE of the Act.

[3] Masters v McCubbery [1995] VICSC 209; [1996] 1 VR 635; Georgiou & Ors v Capitol Radiology Pty Ltd & Ors [2011] VSC 158.

[4] Section 28LD of the Act.

[11] American Medical Association, Guides to the Evaluation of Permanent Impairment, (4th Ed, 3rd printing) as required by s 28LH of the Act.

[15] Rules 39 and 45, Directions for Procedures of Medical Panels, issued pursuant to s 28LZ(4) of the Act, current Directions issued 1 March 2008. See also the cases at footnote 3.

[16] See the definition of 'medical question' in s 28LB of the Wrongs Act 1958 (Vic).

[19] applying s 28LJ of the Act.

[20] applying s 28LL(3) of the Act.

[21] [2001] HCA 30; (2001) 206 CLR 323, 351 [82].

[27] See A G Staff Pty Ltd v Filipowicz [2012] VSCA 60, [8], [30]; Sutton v Laminex Group Pty Ltd [2011] VSCA 52 [9].

[28] [2009] VSC 134 [13]. Although this decision was one of a number of decisions overruled by the Court of Appeal in Sherlock v Lloyd and ors [2010] 27 VR 434 on the issue of whether inadequate reasons was itself in error of law, Western Health v Gallachio was not overruled or doubted in relation to the proper treatment of the sequelae or consequences of injury.

[31] Victoria, Parliamentary Debates, Legislative Assembly, 30/10/2003, 1245 (the Hon John Brumby, Treasurer).

[36] [2009] VSC 582, [36]-[40].

[39] Chua v Lowthian [2011] VSC 468, [59]-[60].

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

[44] [2009] VSC 311, [24]-[28]. Footnotes reproduced from original.

[45] Barnett v Transport Accident Commission (1999) 15 VAR 414; [1999] VSC 484, [30]; aff'd and reasons adopted in Barnett v Transport Accident Commission (2001) 34 MVR 26; [2001] VSCA 12.

[46] Gillat v Transport Accident Commission (2003) 38 MVR 463; [2003] VSC 15, [27].

[47] Transport Accident Commission v Elworthy [2007] VSC 48, [20].

[48] State Trustees Ltd v Transport Accident Commission [2002] VSC 428; (2002) 6 VR 359, 365 [25].

[49] Lake v Transport Accident Commission [1998] 1 VR 616, 626; Connelly v MMI Workers Compensation (Vic) Ltd [2003] VSCA 60; (2003) 6 VR 555, 557 [9].

[50] Lake [1998] 1 VR 616, 626; Connelly [2003] VSCA 60; (2003) 6 VR 555, 557-8 [9]; Elworthy [2007] VSC 48 [21].

[51] Elworthy [2007] VSC 48, [21].

[52] Martinez v Dynamic Engineering Construction Co Pty Ltd [2005] VSC 204, [10].

[53] Elworthy [2007] VSC 48, [20].

[54] Gillat [2003] VSC 15, [47].

[55] Mountain Pine Furniture Pty Ltd v Taylor [2007] VSCA 146; (2007) 16 VR 659, 669 [33].

Compensation Act 1985