On 4 September 2020, the court of appeal handed down its decision in Ko v Hall and Ors  VSCA 224. The main issue in this case was whether a determination by the medical panel made outside of the time frame prescribed by s 28LZG(3) of the Wrongs Act 1958 (Vic) (“the Act”) would be invalid. Under this section, a medical panel must give its determination as to whether a claimant has suffered significant injuries:
- within 30 days of the claimant or a registered health practitioner complying with a request by a medical panel; or
- within a longer period as agreed by the claimant and the respondent.
While the court decided that the medical panel’s determination was valid in this instance, the minority judge provided useful commentary against part of the majority’s judgement.
The claimant sought damages for personal injuries from the respondent surgeon. As with almost all non-employment and motor vehicle claimants she had to show that she had a significant injury as a result of the respondent’s alleged negligence. As a result of the respondent’s refusal to accept that the claimant had a significant injury, the issue was referred for determination by a medical panel. On 8 March 2019, the claimant was examined by the panel and, by agreement of the parties, the due date for the panel’s determination was extended from 7 April 2019 to 22 April 2019. The panel did not meet this deadline.
On 16 May 2019, almost a month after the determination was due, the panel once again requested for, and the parties agreed to, a further extension of time until 30 May 2019. A determination was issued in favour of the respondent on 20 May 2019, which was within the new extended time frame.
The claimant subsequently applied for judicial review claiming that the panel’s failure to meet the deadline on 22 April 2019 meant that its determination was effectively invalid. Though the parties had consented to an extension on 16 May 2019, this was after the longer time frame had expired. The claimant submitted that since the consent was provided after a deadline had already expired, any decision made by the panel after 22 April 2019 could no longer be valid. In other words, it was argued that once a determination had been rendered invalid due to the effluxion of time, that defect could not be cured by a subsequent consent to an extension of time.
The court had to ascertain whether s 28LZG(3) only allowed the parties to agree to an extension before time had expired or whether they could agree to one, even after time had expired. The court found no reason to limit what it saw as the plain words of paragraph (b) which enabled parties to agree to a longer period for determination.
It noted that if the parties could not be empowered to agree to an extension merely because time had expired, no matter how willing both parties were to have an extension, they would be required to commence the significant injury process afresh. The court believed that this consequence would be inconvenient and counterproductive to the legislative intent that the significant injury process be completed expeditiously. In the circumstances the court held that the medical panel made its determination within the time required in s 28LZG(3) and its determination was valid.
Though this conclusion was sufficient to dispose of the case in the respondent’s favour, for the sake of completeness, the court proceeded to address a further issue of whether a decision by the medical panel given outside the time limit in 28LZG(3) would become invalid.
Unlike the provisions in the Act which imposed time limits on respondents, there are no consequences which apply to a medical panel for issuing a determination after the period in s 28LZG(3) has expired. This, the court held, seemed to be a consistent and apparently deliberate difference made by the legislature. If it had been the legislature’s intention to invalidate decisions by the medical panel for non-compliance with a time limit, the court held that it would have explicitly said so in the Act. Additionally, the fact that the parties can extend time by agreement under paragraph (b) of the section was consistent with the idea that the panel’s jurisdiction was not intended to last only up to the end of the 30 day period.
The court held that the time limit under s 28LZG(3) was not a condition of the panel’s authority and the judicial review proceeding was dismissed.
Though Justice McLeish agreed with the majority’s decision to dismiss proceedings, he disagreed with the judges’ finding that a panel’s decision would still have jurisdiction if it was made outside the time limit.
Justice McLeish noted that paragraph (a) of the s 28LZG(3) clearly identifies a 30 day deadline for the due date. If more time was needed, paragraph (b) then offers an “express cure” for that problem. Thus where paragraph (b) does not apply, that is if the parties do not agree to a time extension, the panel is disempowered from giving its determination if not done within the 30 day period and the same would apply if the panel failed to make its determination within a longer agreed period.
In applying this principle, Justice McLeish was of the view that a medical panel which fails to give its determination within the required period, absent any agreement by the parties to extend that time, would be without jurisdiction to do so after time expired.
Importantly, his honour emphasised that to construe s 28LZG(3) as making compliance a condition of jurisdiction is not to undermine the efficiency of the scheme or to inconvenience claimants. Rather, it is to provide a motivation for a medical panel to do its work within the specified period, and to leave it in the hands of the parties to decide whether the panel can still proceed if it fails to meet the deadline.
The judgement from this case is a reminder that parties are empowered to exercise the flexibilities afforded to them by the law. The court’s decision confirms that the determination of a medical panel will still be valid even if it is given outside of the time limit prescribed by s28LZG(3)(a). Furthermore, under s28LZG(3)(b), parties can agree to extend the deadline even after the due date for the panel’s decision has lapsed.
It is important to note, however, that in this case the claimant’s agreement to the extension was a key factor in upholding that the medical panel had jurisdiction. Justice McLeish has suggested that without such agreement, the time limit will strictly apply to invalidate decisions by the panel issued outside that time limit. The fact that the majority weren’t overly concerned by a Panel’s failure to comply with the statutory time limits coupled with the practical reality that in most cases its hardly worth reviewing a Panel determination means that this issue is unlikely to be revisited, even if Justice McLeish made some important points in his judgment.
If you would like any advice in this area, please contact Hunt & Hunt.
with Michelle Nguyen, Graduate at Law