IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 01537

LEWIS MELTON	Plaintiff	
		
v		
		
METRO TRAINS PTY LTD	First Defendant	
		
ASSOCIATE PROFESSOR PETER GIBBONS (CONVENOR OF MEDICAL PANELS)	Second Defendant	
		
MEDICAL PANEL CONSTITUTED BY ASSOCIATE PROFESSOR MIRON GOLDWASSER AND DR ALAN ANDREWS	Third Defendant	

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JUDGE:	Quigley J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	20 April 2021	
DATE OF JUDGMENT:	2 August 2021	
CASE MAY BE CITED AS:	Melton v Metro Trains Pty Ltd & Ors	
MEDIUM NEUTRAL CITATION:	[2021] VSC 450	

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JUDICIAL REVIEW – Review of a decision of a Medical Panel – Part VBA of the Wrongs Act 1958 (Vic) – AMA Guides to the Evaluation of Permanent Impairment – Whether medical panel disclosed a path of reasoning – Duty of a medical panel to make inquiries – Held the medical panel erred – Remittal to a differently constituted medical panel – Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 252 CLR 480 applied – Chang v Neill [2019] VSCA 151 applied – Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 considered – Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 considered.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Ms Simone Bailey	Arnold Thomas & Becker	
			
For the Defendant	Ms Roslyn Kaye	HWL Ebsworth Lawyers	

HER HONOUR:
Background
1	The plaintiff, Mr Lewis Melton, injured his right leg and knee after falling on uneven ground at Rosanna Railway Station on 13 May 2017.  X-rays taken at Austin Hospital confirmed that Mr Melton had suffered a comminuted spiral fracture of the proximal right fibula and an oblique fracture of the lower right tibial shaft.  Surgery was undertaken to treat the tibial fracture.
2	Mr Melton commenced a County Court proceeding against Metro Trains Pty Ltd for damages and both economic and non-economic loss pursuant to the Wrongs Act 1958 (Vic) (Act) and common law.
3	To receive compensation for non-economic loss under the Act, a person must be assessed to have suffered “significant injury”.  An injury is deemed “significant” if the degree of whole person impairment resulting from the injury meets the threshold level.  The Act defines the relevant threshold level as impairment of more than 5 per cent.  The Act also defines impairment as permanent impairment.
4	Mr Douglas Gardiner, an orthopaedic surgeon, assessed Mr Melton in line with the AMA Guides to the Evaluation of Permanent Impairment (4th edition) (Guides).  Mr Gardiner provided a Certificate of Impairment and considered that Mr Melton’s impairment level was 10 per cent. Mr Gardiner noted:
Painful scarring on the front of the right knee preventing kneeling and restricting squatting due to sensitivity with limitation in the performance of employment and daily living with constant avoidance and padding to this area required. Class 2 impairment.
5	On 6 September 2019 the plaintiff served on the first defendant the Certificate of Impairment pursuant to s 28LNA of the Wrongs Act and the accompanying report of Mr Gardiner.
6	Subsequently, the first defendant referred Mr Melton to a Medical Panel for assessment of his leg injuries and scarring.  Mr Melton was assessed by a Panel comprised of orthopaedic surgeon, Professor Miron Goldwasser, and general practitioner, Dr Alan Andrews, on 14 January 2020.  The Panel concluded that although Mr Melton’s physical impairment was permanent, the level of impairment did not meet the threshold.  Clinical notes of both panel members taken at the assessment indicate that Mr Melton was assessed as having an impairment level of 4 per cent, with zero per cent impairment attributed to scarring.
7	Mr Melton seeks judicial review of the Panel’s decision about his impairment, contending that the decision should be quashed and remitted to a differently constituted panel.
Grounds of the plaintiff
8	The oral grounds of the plaintiff evolved from those put forward in written material.  The final grounds can be characterised as follows:
(a)	the panel erred in its duty to apply Chapter 13 of the Guides by failing to apportion any impairment to the scarring; and 
(b)	the panel failed to take into account a relevant consideration, namely the limitations on Mr Melton’s daily activities caused by the scarring.
9	I will set out each of the grounds and responses in more detail in turn, but it is first apposite to consider the relevant sections of the Guides more closely.
The Guides
10	Chapter 13 of the Guides is titled “The Skin” and Chapter 13.5 is titled “Scars and Skin Grafts”.  Table 2, Chapter 13.5 outlines the classes of impairment applicable to skin disorders.
11	Class 1 covers impairment of 0-9 per cent and applies when:
•	Signs and symptoms of skin disorder are present or only intermittently present; and
•	There is no limitation or limitation in the performance of few activities of daily living, although exposure to certain chemical or physical agents might increase limitation temporarily; and
•	No treatment or intermittent treatment is required. (Original emphasis)
12	Class 2 covers impairment of 10-24 per cent and applies when:
•	Signs and symptoms of skin disorder are present or intermittently present; and
•	There is limitation in the performance of some of the activities of daily living; and
•	Intermittent to constant treatment may be required. (Original emphasis)
13	The Table continues up to Class 5, with Classes 3, 4 and 5 describing more severe skin disorders not relevant to this plaintiff.
14	The following additional guidance is included beneath Table 2:
The signs and symptoms of disorders in classes 1 and 2 may be intermittent and not present at the time of examination. The impact of the skin disorder on daily activities should be the primary consideration in determining the class of impairment. The frequency and intensity of signs and symptoms and the frequency and complexity of medical treatment should guide the selection of an appropriate impairment percentage and estimate within any class.
First ground
15	In respect of the first ground, the plaintiff argued that there was inconsistency between the clinical notes of the Panel, its reasons and its final determination.  In particular, the plaintiff pointed out that the clinical notes referred to Mr Melton’s scarring and related symptoms of tenderness and pins and needles but declined to apportion any impairment to it.
16	In response, the first defendant urged the Court to view the reasons of the Panel as the primary justification for its determination, rather than the clinical notes.  The first defendant suggested that the pins and needles, according to the Panel’s reasons, could be attributed to “dysfunction of the sural nerve and the infrapatellar branch of the saphenous nerve”, rather than the scarring.  If accepted, this would mean there was no inconsistency between the Panel’s reasons and final determination.
17	A similar argument was submitted in relation to tenderness evident around the site of the injury.  Specifically, the first defendant observed that the Panel’s reasons refer to tenderness but do not suggest that the cause of tenderness is scarring.
Second ground
Did the Panel inquire into the plaintiff’s daily activities?
18	On the second ground, the plaintiff drew attention to Mr Gardiner’s conclusion that Mr Melton’s scars had led to “constant avoidance” in aspects of his daily living.
19	The plaintiff noted that the Panel made explicit reference to a number of daily activities, including squatting, walking and driving.  However, the only time that the Panel made specific reference to the impact of scarring was in the context of kneeling.  This, it was suggested, indicates that the Panel did not give due consideration to the full impact of the scarring on Mr Melton’s daily activities.
20	The plaintiff further pointed out that the Panel recorded Mr Melton’s ongoing capacity for self-care and independence.  It was submitted that this is quite separate from an inquiry into whether the scarring impacts his daily living.  At this point I note that according to the Guides, self-care is only one aspect of daily living to consider in the evaluation of impairment.  The Guides also lists physical activity, travel and social/recreational activities (among others) as examples of daily living.
21	The first defendant argued that the Panel did in fact inquire into the nature of Mr Melton’s daily activities after the scarring occurred.  Events that transpired during the hearing impacted the evidence on this point.
22	In his affidavit of 20 November 2020, the plaintiff deposed that the Panel did not ask whether his scars are symptomatic, required treatment or limited his daily activities.  At the hearing, the plaintiff corrected this affidavit to note that the Panel did in fact ask about the scars.  During cross-examination, Mr Melton further conceded that his memory of the assessment was “hazy”.
23	While I do not query that the plaintiff’s affidavit and testimony were given in good faith, I must note the discrepancy between his statements when apportioning weight to all the evidence.
24	The first defendant pointed to this discrepancy to argue that the Panel was not deficient in its duty to consider all relevant considerations, including the scarring.  The first defendant also highlighted a section of the Panel’s reasons under the sub-heading “Scars”:
The claimant said that his right lower extremity scars are asymptomatic, do not require any treatment, and do not restrict his daily activities.
Symptoms related to scarring
25	As already stated, the Panel noted pins and needles as symptoms related to Mr Melton’s scarring, but did not apportion any impairment to it.
26	The plaintiff observed that the Panel assessed Mr Melton at close to the threshold level and attributed zero per cent impairment to scarring.  As such, the plaintiff submitted that the Panel’s decision not to attribute any impairment to scarring is a material error, because even a minor attribution to the scarring would have elevated Mr Melton over the threshold level.
27	The first defendant cautioned against speculating on how a closer analysis of the plaintiff’s tenderness or pins and needles might have impacted the Panel’s final determination.  It was argued that even if the Panel were in error here (which the first defendant disputed), it was not a material error.
Determination
28	For the reasons that follow, ground one is allowed while ground two would fail.
Determination: first ground
29	I find that the Panel erred in its duty to apply Chapter 13 of the Guides.
30	The first defendant referred me to the oft-cited principle that, when reviewing the decision of a medical panel, one must not apply an overzealous approach or hold the reasons up to the standard of a judicial decision.
31	Moreover, this being a judicial review, it is not appropriate to consider evidence afresh.  Rather, the task before me is to review the process undertaken by the Panel, and determine whether jurisdictional error, or error of law, is apparent.  Consistent with that approach, the first defendant argued, which I accept, that it is in the Panel’s discretion to determine the plaintiff’s threshold of impairment.
32	Having said that, the reasons of a medical panel must disclose “the actual process of reasoning” by which it formed its conclusion.  As stated, that conclusion is that Mr Melton’s scars did not rise to the defined level of permanent impairment.
33	The Panel did turn their minds to Mr Melton’s scars.  For example, the panel members examined the scar sites, noted their lengths and observed that they were “soft, mobile, and non-tender to palpation”.
34	Nevertheless, I find that the Panel’s reasons do not make it plain that they sufficiently analysed the scars in light of the Guides.  For instance, immediately above Table 2, Chapter 13.5 of the Guides is the following:
The tendency of a scar to disfigure should be considered in evaluating whether an impairment due to the scar is permanent. Another consideration is whether the scar can be changed, made less visible, or concealed.
35	Recording the size and location of each scar is not akin to considering whether this may impact Mr Melton’s daily activities.  Likewise, the Panel does not explain its position concerning disfigurement linked to the scars.
36	I accept that the Panel recorded the plaintiff’s comment during the assessment, that his scars did not limit his daily activities, and there is difficulty for the plaintiff in overcoming this concession.  It is of course, reasonable and indeed necessary for the Panel to form its view based on the evidence provided to it.
37	However, there are some instances where a Panel may have a positive duty to inquire.  In my view, the present case is one such instance.
Role of a medical panel and duty to inquire
38	The role of a medical panel is different to that of a court or tribunal.  It does not exist to adjudicate or arbitrate between parties.  Rather, its function is to form an opinion based on its own expertise.  In this regard, it is not merely a passive body limited to the material submitted to it, but rather is empowered to make inquiries.  That the panel members examined Mr Melton’s injuries confirms this.
39	Given this, there are circumstances in which a medical panel is duty-bound to make certain inquiries, failure of which can amount to jurisdictional error.  As the High Court of Australia has put it:
a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a…constructive failure to exercise jurisdiction.
40	The above authority arose in circumstances where a visa applicant was not invited to a hearing to respond to allegations that the application was forged.  A similar circumstance arose where a university failed to confirm the enrolment of a student, the status of which was determinative of the student’s visa application.  In the latter case, the majority of Gageler and Keane JJ found that the decision was tainted by the university’s breached duty to update its enrolment records.  Nettle J found that the university’s failure to confirm the student’s enrolment status amounted to jurisdictional error.
41	The authorities make it clear that jurisdictional error may occur where a decision is made without reference to a crucial piece of information, in circumstances where that information is readily available.  In my view, those authorities bear on the present case.
42	I note that not all of the plaintiff’s comments during the assessment were entirely consistent.  For example, the Panel’s reasons indicate that Mr Melton’s scars are “asymptomatic,”, but they also record the plaintiff’s comment that he experiences “intermittent pins and needles in the region of the tibial fracture site and in the anterior aspect of the knee”.
43	As such, I consider it was critical for the Panel to better inform itself of the full extent of the impact of scarring on Mr Melton’s daily activities, including whether the related symptoms merited an impairment rating.  With respect, the Panel’s reasons do not confirm that they did in fact undertake this process.
44	Further, the Panel’s failure to do this amounts to jurisdictional error as it does not evince an adequate process of reasoning to sustain its determination to attribute zero per cent impairment to the plaintiff’s scarring.
45	In the face of the inconsistencies recorded by the Panel described at paragraph 42, it is not sufficient to rely entirely on the comment that the plaintiff’s scars are asymptomatic.
46	The first defendant submitted that, looking at the reasons, the pins and needles could be attributed to dysfunction of the sural and saphenous nerves.  In my view there is not sufficient clarity in the Panel’s reasons to form that view.
Determination: second ground
47	Having allowed the first ground of appeal, it is unnecessary to rule on the second ground.  Nonetheless, the Court records the following.
48	The plaintiff’s second ground was effectively submitted as a natural justice point.  If the Panel failed to take into account a relevant consideration, Mr Melton would have been denied a fair hearing.
49	As mentioned above, Mr Melton confirmed at hearing that he was asked about scarring and the impact on his daily activities, in contrast to his affidavit of 20 November 2020.
50	Moreover, the section of the Panel’s reasons produced above at paragraph 24 is telling.  The plaintiff did not submit that Mr Melton was misrepresented here.  As such, there is difficulty in accepting that the plaintiff was denied a fair hearing or not given an opportunity to discuss his scarring.
51	The Panel’s reasons make numerous, if brief, mention of the scars.  I am not persuaded that the Panel denied Mr Melton natural justice and therefore the second ground would fail.
Remittal to a differently constituted medical panel
52	The first defendant submitted that, if I am minded to quash the decision of the Panel, it should be remitted to the same panel members.  I was referred to Vegco Pty Ltd v Gibbons, where Kyrou J held that “good reason” must be proffered to justify remitting to a differently constituted panel.  The primary consideration is whether it would appear unfair to the successful party for the decision to be re-made by the same decision makers.
53	The plaintiff’s position in written submission was that the decision be remitted to a differently constituted medical panel.  This argument was not expanded upon.
54	I will direct that the decision be remitted to a differently constituted medical panel.  I note the submission of the first defendant and the guidance provided by Kyrou J.  However, I have formed the view that remittal to the same Panel would risk unfairness to the plaintiff.  In circumstances where the panel members briefly considered but declined to apportion any impairment to Mr Melton’s scars, and I have found this to constitute error at law, I consider it preferable for a newly constituted medical panel to assess the claim.
Form of Orders
55	I will make an order in the nature of certiorari quashing the certificate of opinion of the Panel dated 29 January 2020.  The matter will be referred to a differently constituted medical panel to be considered and determined in accordance with law.
56	I will direct the parties to make short submissions in writing in relation to costs.