Supreme Court clarifies role of Wrongs Act medical panel in determining medical cause of impairments

In the recent case of CD v Central Gippsland Health Service [2022] VSC 462, Justice Croucher of the Victorian Supreme Court handed down over 200 pages of detailed and instructive comments clarifying the role, decision-making process, and eligibility of members of medical panels constituted under the Wrongs Act 1958 (Vic) (Wrongs Act), including the process for disregarding impairment from unrelated causes or injuries pursuant to section 28LL(3).

This insight explores the Court's findings in detail. Thank you to Remy Interligi, Roshali Lokuge and Gai Chuatwea for their valuable contribution to this article.

Background

CD was treated at an emergency department for urinary retention due to benign prostatic hyperplasia in March 2017. During CD's hospital attendance, several catheters were inserted and then replaced after attempts at flushing the catheters were unsuccessful. CD eventually underwent a suprapubic catheter insertion. Approximately three months later, CD underwent a transurethral resection of the prostate (TURP) to treat his prostate condition.

CD subsequently brought a claim against the public health service that operated the emergency department seeking damages for physical injuries of urinary incontinence and sexual dysfunction and a psychiatric injury of post-traumatic stress disorder, allegedly as a result of the catheterisation attempts.

On 12 March 2019, a first medical panel found that it was unable to determine whether CD's impairment satisfied the statutory thresholds under Part VBA of the Wrongs Act as his physical and psychiatric conditions had not stabilised.

On 20 March 2020, a second medical panel determined that neither CD's physical nor psychiatric impairment satisfied the applicable thresholds, after disregarding physical impairment resulting from his unrelated prostate condition (pursuant to section 28LL(3)) and psychiatric impairment that was secondary to physical injuries (pursuant to section 28LJ).

CD sought judicial review of the determination on the basis that the panel's decision was vitiated by jurisdictional error.

Key issues

The key issues considered by the Supreme Court were:

1. the requirement that the medical panel make findings as to the medical cause of impairment, and the distinction between this process and consideration of legal causation to be determined by the Court at trial;
2. the nature and extent of "evidence" that the panel may rely on in considering whether unrelated impairment is playing a part in the claimant's current condition;
3. the medical panel's ability to make findings on a claimant's credit; and
4. whether having a claimant examined by the same clinician in multiple panels gives rise to a reasonable apprehension of bias.

There were various other overlapping grounds of appeal, but Justice Croucher did not accept that the panel had failed to have regard to CD's reports in relation to the onset of his urogenital symptoms and that he thought that he was going to die during the attempts at catheterisation.

Medical vs legal causation

CD made detailed submissions regarding the proper role of the medical panel. In short, CD submitted that the medical panel's role is limited to determining whether CD's alleged impairment satisfied the impairment threshold and that it must do so without considering the cause of each impairment, as only the Court has jurisdiction to make findings as to causation. On this basis, CD submitted that the medical panel erred when it determined that his prostate condition was the cause of his urinary incontinence and sexual dysfunction.

Justice Croucher rejected CD's submissions. Following a clear line of authority on what is meant by the "injury" that a medical panel is tasked to assess under section 28LE, Justice Croucher held that the medical panel is required to restrict its assessment to impairment that is potentially referrable to the fault of the respondent. Therefore, while it is true that a panel has no business determining matters of legal causation — that is, whether the alleged incident or injury was caused in the manner alleged by the claimant — the panel must still make a determination regarding the medical cause of each impairment that it has assessed (Summers v Director of Housing & Ors [2012] VSC 395; Colquhoun v Capitol Radiology Pty Ltd [2013] VSCA 58).

While Justice Croucher commented that CD's alleged injuries would have resulted in a combined physical impairment assessment of 32%, his Honour held that the medical panel was entitled to conclude that there was no evidence of urethral injury from the catheterisation and no other medical explanation for the development of CD's urogenital impairment other than his prostate condition, which was unrelated to the claim made against the respondent.

"Evidence" that an unrelated impairment is playing a part in current condition

CD argued that, in order for the medical panel to disregard impairment under section 28LL(3), there needs to be "strong evidence" that the impairment arises from an unrelated cause.

Justice Croucher concluded that, in a context where the decision-maker is an expert tribunal and not bound by the rules of evidence, the expression "evidence" refers generally to any probative material, whether or not it would be admissible in a court (D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242). The medical panel does not speculate by making a determination that an unrelated cause is playing a part in the claimant's condition, provided that there is a rational and factual basis for the determination. Justice Croucher held that the medical panel's decision will not be assailable on the basis that it acted on evidence of an allegedly inadequate strength and noted that the following evidence was before the medical panel:

• six doctors' reports (five of which implicated the prostatic hypertrophy and/or the TURP procedure as the cause of CD's urogenital impairment)
• medical imaging reports that revealed no urethral injury and no abnormalities apart from an enlarged prostate
• contemporaneous records and reports indicating that CD only experienced sexual dysfunction following the TURP procedure; and
• the written opinion of the previous panel

The corollary is that where there is "some evidence, no matter how unconvincing" for a finding, it will not involve legal error (Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446). In rejecting CD's submission, Justice Croucher concluded that the material before the medical panel provided a basis on which it could rationally find that CD's urogenital system impairment resulted from an unrelated cause. The medical panel was entitled to use its experience, expertise and judgment to conclude that CD's erectile dysfunction and incontinence were impairments from an unrelated cause that it was required to disregard in making its assessment.

A medical panel's entitlement to make findings on a claimant's credit

CD argued that the medical panel erred in making impermissible findings regarding his credit, after inconsistencies arose in statements he had made regarding the onset of his sexual dysfunction.

Justice Croucher described in detail the judicial review decisions of medical panels convened under workers' compensation legislation and held that a panel convened under the Wrongs Act is also permitted to form a view about the credit of a claimant. His Honour cited the case of Colquhoun v Capitol Radiology Pty Ltd (2013) 39 VR 296, in which it was accepted that members of a panel "may need to decide whether the claimant is telling the truth".¹

Reasonable apprehension of bias

The question of whether the medical panel's second decision in 2020 was vitiated by a reasonable apprehension of bias arose from one panel member's involvement in both the 2019 and 2020 medical panels.

The first alleged basis for apprehended bias was that the panel member had a partial interest in the decision because his involvement with the first panel rendered him a witness to comments CD had made during the first examination, as well as a panel member in the second examination. Justice Croucher considered the authorities in detail and simply stated that there was no evidence that the panel member had had an interest in the proceedings before the panel sufficient enough to give rise to a reasonable apprehension of bias. Justice Croucher further stated there was no evidence before him that the panel member had any memory of what CD had told the first panel, let alone that he had provided the second panel with his account of what CD had told him in the first panel. Even if the panel member had recalled the first panel's examination, Justice Croucher said that it cannot be argued that an apprehension of bias arises by the member acquiring certain information — namely, a statement made by CD — during the proper performance of his statutory function in the first panel.

The second alleged basis was that of prejudgment, with a suggestion that the panel member had not altered his view from the finding of the first panel in 2019 that the plaintiff's impairment would not satisfy the threshold level once his injuries stabilised.

On this proposition, Justice Croucher held that:

• the Wrongs Act allowed the panel member to be involved in the 2020 medical panel
• the panel member's opinion was formed within the confines of the decision-making process provided for by the Wrongs Act
• there was no evidence that he did not form his opinion after due consideration of the facts
• there was no suggestion that he had made his decision otherwise than in accordance with the merits

Justice Croucher stated that it cannot be said that the certificate or reasons of the first panel would give a bystander the impression that the panel member had closed his mind, or that he would not consider further material were it made available to him at the time of the second panel in 2020.

Comment

Justice Croucher's thoroughly reasoned judgment is a comprehensive rejection of the argument that the medical panel is obliged to assess all impairment particularised in the claimant's prescribed information, without enquiring into the cause of each impairment.

The judgment highlights the importance of clearly articulating in referrals to the medical panel the injuries alleged in the claim and unrelated injuries or conditions. This will better enable the panel to perform its statutory function of determining the medical cause of each impairment and ensuring that its assessment only includes impairment that is potentially referrable to the fault of the respondent.

Photo by Christina on Unsplash.

¹ Colquhoun v Capitol Radiology Pty Ltd (2013) 39 VR 296 at 301[19] (per Maxwell P, Weinberg JA and Ferguson AJA).