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.
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  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.
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:
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.
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).
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  VSCA 294, , 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.
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:
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.
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.
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.
In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph , Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph , Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph : "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.
The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane  NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.
The recent decision in New Aim Pty Ltd v Leung  FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.