Delays not a significant injury to medical panels’ jurisdiction

9 September, 2020

In Victoria, medical panels play a key part in determining whether plaintiffs are entitled to claim non-economic loss damages in public liability litigation. On 4 September 2020 the Victorian Court of Appeal delivered a decision impacting on the validity of medical panel determinations delivered outside the time limits prescribed by Part VBA of the Wrongs Act 1958 (Vic). The decision means that a medical panel determination delivered outside the 30 day time limit prescribed by Part VBA is valid, and that extensions of time to deliver a determination can be agreed by the parties to a medical panel referral after the original period of time has lapsed.

Authors: Richard Johnson and Adrian Lee
Judgment date: 4 September 2020
Citation: Ko v Hall & Ors [2020] VSCA 224
Jurisdiction: Supreme Court of Victoria – Court of Appeal

Principles

A medical panel determination given outside the time limit prescribed by subsection 28LZG(3)(a) of Wrongs Act 1958 is not invalid.
Parties to a medical panel referral can agree to an extension of time under subsection 28LZG(3)(b) after the time within which the medical panel was required to make its determination.

Background

Lee Mee Ko commenced proceedings in 2017 against surgeon, Dr Dean White, for physical and psychological injuries allegedly suffered as a result of White’s negligence. Ko alleged her physical injury satisfied the ‘significant injury’ threshold provisions contained in Part VBA of the Wrongs Act 1958 (Vic) (Wrongs Act), which was disputed.

Part VBA of the Wrongs Act governs the “significant injury” thresholds claimants must satisfy to obtain awards of non-economic loss (NEL) damages stemming physical or psychiatric injuries in Victoria. It contains the various proscriptive procedures that claimants, respondents and medical panels must follow to determine the right to pursue NEL damages. The procedures are ultimately aimed at establishing whether a claimant has suffered a “significant injury”, that is, whether the claimant’s whole person impairment (WPI) satisfies the applicable threshold set by the Wrongs Act.

In late 2018 Ko served on White a certificate of assessment (certifying that her WPI met the requisite threshold) and prescribed information as required by the Wrongs Act. White disputed the assessment and referred a medical question to a medical panel in November 2018. Ko was examined by the medical panel on 8 March 2019.

Subsection 28LZG(3) of the Wrongs Act states that the medical panel “must” give its determination:

“(a) within 30 days after the last of the following to occur-

(5) the last date on which the claimant complies with a request under section 28LZC;

(ii) the last date on which a registered health practitioner complies with a request under section 28LZE or if a request is made to more than one registered health practitioner, the last date on which the last of the registered health practitioners to comply, complies with the request; or

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

No requests were made under sections 28LZC or 28 LZE by the medical panel. Per the time frame prescribed by subsection 28LZG(3), the medical panel was required to give its determination by 7 April 2019, or within such longer period as agreed between Ko and White. On 5 April 2019 the medical panel requested an extension of time until 22 April 2019, which was agreed to by Ko and White. However, the medical panel missed this new agreed deadline.

On 16 May 2019, after the previous deadline had expired, the medical panel requested a further extension until 30 May 2019 (which was again agreed), and ultimately issued its Certificate of Determination on 20 May 2019. The medical panel determined that Ko’s WPI did not satisfy the threshold level. That determination essentially nullified Ko’s right to claim NEL damages for her physical injuries (Determination).

Ko sought judicial review of the Determination on the basis the medical panel committed an error of law and/or jurisdictional error by making its Determination outside the period specified in subsection 28LZG(3). Ko’s primary argument was that the leading authority on this issue was the decision of Kaye J in Mikhman v Royal Victorian Aero Club [2012] VSC 42 (Mikhman), in which His Honour held that the time limit imposed by subsection 28LZG(3) was a condition of a medical panel’s jurisdiction, and a determination made out of time was invalid.

The application for judicial review was originally listed before an Associate Justice who, upon being informed that White intended to challenge Mikhman reserved this issue for consideration by the Victorian Court of Appeal.

Decision

The Victorian Court of Appeal¹ was tasked with answering two questions in relation to the dispute over the validity of the medical panel’s Determination:

Is the giving of a medical panel’s determination or certificate within the time limit prescribed by subsection 28LZG(3) a condition of the jurisdiction of the panel to the giving of the determination or certificate?
Can a consent given by a claimant and respondent, after time has otherwise expired, permit a medical panel to subsequently give its certificate or determination within jurisdiction?

Ko’s application was dismissed unanimously on the basis that the Court accepted (for reasons discussed in more detail below) that consent to an extension could be given after the time limit set by paragraph 28LZG(3)(a) had expired, answering “yes” to the second question.

However, on the first question, while Maxwell P and Beach JA held that a medical panel determination made out of time was not invalid, McLeish JA disagreed. In making their respective findings the members of the Court of Appeal commented that the two questions were effectively interrelated having regard to the following.

Can parties agree to an extension of the time limit even after the time has expired?

Maxwell P and Beach JA (with whom McLeish JA agreed) considered the answer to this question turned on an application of the principles of statutory interpretation, and reading the text of subsection 28LZG(3) in its context, paying proper regard to the overall purposes of the Wrongs Act.

Rejecting Ko’s submission, they saw no reason to limit the plain words in paragraph 28LZG(3)(b), that the medical panel must give its decision “within such longer period as is agreed by the claimant and the respondent”, and discerned no legislative purpose to limit the parties’ ability to agree to an extension of time.

While the majority considered that some aspects of certainty and an expeditious process in determination of the “significant injury” issue could be discerned as a legislative purpose for Part VBA, they did not place the same emphasis on this purpose as Mikhman, referring to elements of a lack of certainty contained within section 28LZG, such as provisions permitting a medical panel to fix a later time within 12 months following an assessment for a further assessment if a claimant’s injuries are not stable.

The majority similarly noted that a legislative intention that the significant injury process be undertaken expeditiously would be undermined by the parties’ inability to agree to an extension after time had expired, as it would result in the significant injury process starting afresh (i.e. a new medical panel being convened).

Does non-compliance with the time limit result in invalidity?

To answer this question the members of the Court performed the analysis referred to in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) to determine whether it was the legislative purpose to invalidate a decision given outside time. The Court also considered its earlier decision of Ian Street Developer Pty Ltd v Arrow International Pty Ltd [2018] VSCA 294, [44], which concluded the interests of the parties and objects of a statutory scheme would be adversely affected if the time limit went to jurisdiction.

The majority² held there are strong textual indications that the legislature did not intend that the expiry of the 30 day period to make its determination should take away the medical panel’s jurisdiction; the opposite to the conclusion reached in Mikhman.

The majority considered other sections in Part VBA that impose time limits from which flowed automatic consequences, which in turn, expressed a clear legislative purpose, such as ensuring that a respondent could not delay various procedural steps required after service of a Certificate of Assessment to prejudice a claimant’s rights.

Looking at the word “must” within Part VBA, the majority identified only six instances where it was used where specific consequence flow from a failure to comply with an obligation imposed, all relating to non-compliance by a respondent. In contrast, subsection 28LZG(3) and other sections relating to a medical panel’s process do not specify a consequence.

The majority observed 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 s 28LZG(3), it could and would have said so.”

The majority also rejected Ko’s submission that if the 30 day time limit did not go to jurisdiction, a medical panel may treat it as if it did not matter, by proceeding on the assumption (in the task of statutory interpretation) that the persons on whom the statutory functions are conferred will comply with the provisions governing the discharge of those functions.

The majority was also guided by the Court of Appeal’s earlier decision in Davis (a pseudonym) v The Queen (2016) 55 VR 1 (Davis) which identified five factors that may fall for consideration in the application of Project Blue Sky to the question of whether non-compliance with a statutory provision resulted in invalidity. Those factors fell in favour of the conclusion that the medical panel’s non-compliance with subsection 28LZG(3) did not result in an invalid determination.

The majority found that rather than being an ‘essential preliminary’ to the exercise of a medical panel’s function, subsection 28LZG(3) merely regulates its function to determine the degree of WPI of a claimant. They also found the variability of the time limit to make a determination being influenced by requests for further information or extensions before a determination is reached, weighed against the time limit having a “rule-like quality” that could be easily identified and applied.

Another factor, similarly considered in Davis, was the obvious public inconvenience of negating all other steps performed by medical panels with a failure to comply with the time limit regardless of how small that failure might be. Further, the majority recognised that an application can be made to the Supreme Court for declaratory relief to compel a medical panel to give its determination if the medical panel fails to comply with the time limit in paragraph 28LZG(3)(a).

Importantly, if the medical panel breached subsection 28LZG(3) (contrary to the Court’s finding the time limit was validly extended) it was not egregious, and the parties were content to receive the determination within the timeframe it was provided before the determination was delivered.

Finally, the majority considered that the requirement for the parties to engage in the medical panels process and incur those costs, only for those costs to be wasted because of a failure of a medical panel to comply with the statutory time limit would be an inherently unjust result, which the legislature could not reasonably have intended.

McLeish JA’s dissent

In his dissenting judgment McLeish JA held that the failure by a medical panel to give its determination within the period required under subsection 28LZG(3) deprives the medical panel of jurisdiction. Although His Honour agreed with the ultimate outcome in Mikhman, he disagreed with Kaye J’s (as he then was) construction, which only considered paragraph 28LZG(3)(a) and not the entire subsection.

While His Honour undertook a Project Blue Sky analysis, in his view the use of the word “must” rendered the 30 day time limit in paragraph 28LZG(3)(a) mandatory, but that paragraph 28LZG(3)(b) provided a “cure” for a medical panel’s failure to comply with the time limit.

To that end His Honour’s commented that the context and purpose did not suggest a different conclusion:

the absence of a consequence for failing to comply does not suggest that subsection 28LZG(3) attaches no consequence to a failure to comply with the time limit, because the mechanism to extend time with the agreement of the parties allows for flexible outcomes by placing the issue in the hands of the parties;
the presence of a provision validating decisions notwithstanding a defect in a panel member’s appointment suggest non-compliance with the time limit is not a mere irregularity;
while Part VBA requires an expeditious and efficient process, the constructions contended for by the majority allows the medical panel to be dilatory, whereas His Honour’s construction requires a medical panel to be timely and allow the parties to agree to a lengthier process; and
the parties have the ability to agree that the panel has jurisdiction (by consenting to an extension of time under paragraph 28LZG(3)(b).

Accordingly, His Honour took the view that a failure by a medical panel to hand down its determination within the 30 day time limit imposed by paragraph 28LZG(3)(a) was a breach of the medical panel’s jurisdiction.

Why this case is important

Medical panels play a key part in determining whether plaintiffs are entitled to claim NEL damages in public liability litigation in Victoria. Accordingly, the process by which they operate is also of critical importance, including the desire that each medical panel will provide a timely determination as to whether a claimant’s WPI meets the relevant threshold. This case recognises the important jurisdiction of a medical panel in determining that key issue.

This case:

makes it clear that the parties to a referral can consent to an extension of time for the medical panel to make its determination, even if the medical panel’s request is made after the expiry of the 30 day time limit set by paragraph 28LZG(3)(a);
rejects the construction of subsection 28LZG(3) set out in Mikhman; and
holds (by a majority) that a medical panel determination made outside the 30 day lime limit is not invalid merely because the time limit was not complied with.

The decision takes away an avenue potentially open to an aggrieved party to quash a medical panel’s determination handed down outside the time limit, even with the consent of the parties.

It will be interesting to see whether there is a future challenge to the majority’s interpretation of subsection 28LZG(3) should a medical panel make a determination outside the 30 time limit without seeking the parties’ consent to an extension of time.

Finally, the case is also a timely reminder of the strict and onerous time limits imposed on respondents, which, in contrast to those time limits imposed on a medical panel, come with significant explicit consequences if not complied with.

¹ Maxwell P, Beach and McLeish JJA
² Maxwell P and Beach JA, McLeish JA dissenting.

published by

Richard Johnson

Principal

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