“Too late”, she cried! Victorian Medical Panels given greater flexibility in making Determinations

Legal Directions

Lee Me Ko v Dr Caroline Hall & Ors (4 September 2020)

In a majority judgment[1] overturning several years of single judge decisions, the Court of Appeal has held that a Medical Panel finding handed down after the requisite
30-day decision date is valid.

Facts

In 2010, Ms Lee Me Ko (the Applicant) underwent breast reconstruction surgery. She was unhappy with the result and sued the surgeon (Dr W) in the Supreme Court of Victoria claiming damages for physical and psychological injuries. In October 2018, the Applicant served a certificate of assessment from a consultant surgeon,
Dr Maniam, certifying her degree of whole person impairment (WPI) resulting from her physical injuries as satisfying the requisite ‘significant injury’ threshold level set out in Part VBA of the Wrongs Act 1958 (Vic) (the Act). She also served the required ‘prescribed information’ pursuant to s28LT (2) of the Act.

Moray & Agnew, on behalf of Dr W, challenged Dr Maniam’s assessment by referring a ‘medical question’ to the Medical Panel, pursuant to Part VBA of the Act. The Medical Panel (Panel) examined the applicant on 8 March 2019 and issued its ‘Certificate of Determination’, together with ‘Reasons for Determination’ (Determination), finding that, contrary to Dr Maniam’s opinion, the degree of WPI resulting from the subject injury did not satisfy the threshold level. As such, the Applicant could not claim pain and suffering (aka general) damages.

On 18 July 2019 the Applicant filed an Originating Motion against the three members of the Medical Panel and Dr W seeking judicial review of the Determination. The sole ground of appeal ultimately relied upon was alleged jurisdictional error by the Panel in failing to comply with the time period mandated by s28LZG (3) of the Act. That section relevantly states as follows:

Determination of Panel

(3) The Medical Panel must give the determination or certificate:

a. within 30 days after the last of the following to occur –

  1. the last date on which the claimant complies with a request under s28LZC
  2. the last date on which a registered health practitioner complies with a request under s28LZE … or

b.within such longer period as is agreed by the claimant and the respondent.

[underlining added]

In essence, the section requires the Panel ‘must’ provide its decision within 30 days of the examination date or, if it requests other medical material, within 30 days of receiving that material, unless both the claimant and the respondent / referring party agree to an extension of that time period. Requests for time extensions were made in this case, with the relevant chronology (all dates 2019) being as follows:

  • 8 March: Claimant examined by Panel (which at no stage requested additional medical material)
  • 5 April: Panel seeks extension of time to deliver its findings and reasons until
    22 April (first extension request). Both parties consent to extension on same date
  • 17 April: claimant provides further medical material to the Panel of her own volition
  • 18 April[2]: Panel seeks further extension of time, until 16 May (second extension request) in letters sent by mail but not received until after the
    22 April first extension date
  • 2 May: Dr W sends letter to Panel (retrospectively) agreeing to extend time until 16 May. The claimant does not respond to the Panel’s second extension request
  • 16 May: Panel seeks a final extension, until 30 May (third extension request). Both parties respond on 16 May agreeing to that extension
  • 20 May: Panel hands down its determination with reasons (i.e. that WPI threshold not reached)
  • 18 July: Applicant files Originating Motion seeking to quash the Panel’s decision.

Applicant’s submissions

Despite having agreed to the third extension request, the Applicant argued that any finding the Panel purported to make after 22 April 2019 was beyond its powers given that neither party had consented to the second extension request in the time before the first extension period had expired. She relied upon a line of authority originating in the 2012 decision of Kaye SCJ in Mikhman v Royal Victorian Aero Club[3]who held that the word ‘must’ in s28LZG (3) was mandatory such that the time period prescribed by the Act was a condition of the exercise by a Medical Panel of its power to make a determination.

In Santo v Gibbons & Ors[4], handed down on 10 August 2020, Moore SCJ, relying on Mikhman, quashed the decision of a Medical Panel which delivered its determination due by 6 July 2019 on 3 August 2019 (with two time extension requests made by the Panel not being consented to by the claimant) and said:

“It is clear from the authorities, specifically the decision of Kaye J (as he then was) in Mikhman v Royal    Victorian Aero Club and a number of subsequent decisions of this Court which have followed his Honour’s judgment, that non-compliance with the time period specified in s 28LZG(3)(a) of the Act invalidates a medical panel’s determination. I am satisfied that the Panel’s determination should be quashed on this basis.”[5]

Dr W’s submissions

Moray & Agnew, noting that the Mikhman authorities provided compelling argument to quash the Determination, argued that those cases were wrongly decided and persuaded the Court[6] to refer the issue directly to the Court of Appeal to hear and determine the Applicant’s Motion.

Court of Appeal decision

The Court of Appeal, grappled with two questions being:

  • Can the parties to a Medical Panel referral consent to an extension of time after the time for delivering same has otherwise expired?
  • Is the word ‘must’ in s28LZG(3) mandatory, such that it imposes a time bar for a Medical Panel to deliver its determination and reasons?

Parties can retrospectively consent to a time extension

The Court unanimously held that the parties can consent to a time extension. The Court assessed the question ‘by applying fundamental principles of statutory interpretation, which requires reading the text of s. 28LZG(3) in its context, paying proper and due regard to the overall purposes and objects of the Act.’[7]Their Honours rejected the Applicant’s argument that there needed to be an express statutory provision allowing a statutory body such as a Medical Panel to make a decision after a relevant statutory deadline has passed if the relevant parties consented to same. The Court noted firstly:

‘ the plain words in subsection (b) of the section, which say in unqualified terms that the medical panel must give its decision ‘within such longer period as is agreed by the claimant and the respondent.’ Secondly, we are unable to discern any legislative purpose for limiting the parties’ ability to agree an extension of time so that no agreement (however much the parties may be willing participants in it) can be given effect once the time has expired.’[8]

In light of the parties agreeing to the third extension the decision as to the time extension question was of itself sufficient to dismiss the Applicant’s application.

Does the time limit go to jurisdiction?

The Court, by majority (Maxwell P and Beach JA), held that the failure of a Medical Panel to deliver a Determination in the 30 day time prescribed by the Act did not invalidate it.

The majority noted that addressing this question required the Court to consider ‘what might be called ‘the Project Blue Sky question[9]’, that is, the question ‘whether ‘an act done in breach of a condition regulating the exercise of a statutory power’ is invalid… [which] arises only where the provisions imposing the relevant condition are silent about the consequences of non-compliance with it.’ [10]

After a detailed examination of the relevant provisions of the Act, as well as of decisions dealing with variously similar statutory provisions, their Honours noted that, in regard to s28LZG (3), ‘there are strong textual indications that it was not the legislature’s intention that the expiry of the 30 day period should rob the panel of jurisdiction.’[11] They also noted that:

‘Loss of jurisdiction is a very grave consequence for non-compliance with a time limit. Had that been the legislature’s intention when imposing the time limit in s28LZG(3), it could and would have said so.’

Thus, the majority overruled the Mikhman line of first instance decisions, holding that the section should not be interpreted as meaning that the Medical Panel’s jurisdiction ‘runs out’ if it has not made a Determination within the 30 day period.

Dissenting judgment

McLeish JA came to a different conclusion. His Honour considered that s28LZG(3) meant that, if a Medical Panel did not make its decision within 30 days, its jurisdiction to do so was ‘dead’. However, subparagraph (b) to the section meant that the Panel’s jurisdiction could be ‘resurrected’ if the parties agreed to ‘revive’ it. His Honour described this subparagraph as ‘the express cure offered for the problem that may face the parties as a result of the operation of para (a) on its own. That suggests that the panel would, but for para (b), be disempowered from giving its determination or certificate if that were not done within the period in para (a).[12]

Ramifications for Victorian litigants and their insurers

While the Medical Panel respondents did not make any formal submissions in the case[13], the Convenor of Medical Panels supported Dr W’s submission that the matter should be directly referred to the Court of Appeal on the basis that if the question of the statutory interpretation of s28LZG(3) was resolved in a manner consistent with the arguments propounded on behalf of Dr W, it would be of benefit to the flexible management of the workload of Medical Panels.

The decision should therefore bring greater certainty to personal injury litigants in Victoria, ensuring that a party unhappy with a determination made by a Medical Panel does not take tactical advantage of the fact that it may have been handed down later than the required 30-day period.

Further information / assistance regarding the issues raised in this article is available from the author, Michael Martin, Partner or your usual contact at Moray & Agnew.

[1] Comprised of Maxwell P and Beach JA; McLeish JA in partial dissent

[2] Being the Thursday before Easter.

[3] [2012] VSC 42 (‘Mikhman’). Later cases following this decision included Holloway v Dept of Human Services [2015] VSC 184and Wentworth v Bass Coast Regional Health [2017] VSC 403

[4] [2020] VSC 488

[5] At paragraph 13 of his Honour’s Judgment

[6] On the basis of detailed submissions prepared by Stephen Moloney of Counsel

[7] Majority judgment, at para. 29

[8] Majority judgment, at para. 31. McLeish JA agreed with this reasoning
(see para. 73)

[9] Being a reference to the High Court decision of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

[10] Majority judgment, at para 38

[11] Majority judgment, at para 45

[12] McLeish JA (in dissent), at para 80

[13] In keeping with the so-called ‘Hardiman principle’, the usual course for an administrative body responsible for a decision that is being challenged is to make no submissions and to submit to the court’s order.


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