Adams v Wadesley - [2018] VSC 304

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 01564

ALAN ADAMS	Plaintiff
v
DR JANE WADESLEY AND OTHERS (according to the attached Schedule)	Defendants

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JUDGE:	IERODIACONOU AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2018
DATE OF JUDGMENT:	7 June 2018
CASE MAY BE CITED AS:	Adams v Wadesley
MEDIUM NEUTRAL CITATION:	[2018] VSC 304

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ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Jurisdictional Error – Failure to assess impairment pursuant to Wrongs Act 1958 pt VBA – Failure to assess aggravation of pre-existing injury as a potentially compensable injury – Failure of statutory duty – Decision quashed – Chua v Lowthian [2009] VSC 582 – Wrongs Act 1958 pt VBA, ss 28LL, 28LWE, 28LZG.

ADMINISTRATIVE LAW – Judicial Review – Interpretation of AMA Guides – Applicable Principles – Classes of Hernia-related Impairment – Grammatical Construction – Contextual Approach – Relevant United States authority – Requirement of a palpable defect – Heinz Co Australia Ltd v Kotzman [2009] VSC 311 – Wrongs Act 1958 ss 28LB, 28LH.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Harper	Arnold Thomas & Becker
No appearance for the First, Second and Third Defendants
For the Fourth and Fifth Defendants	Mr J Noonan QC with Mr B Jellis	Lander & Rogers

TABLE OF CONTENTS

Application.......................................................................................................................................... 1

Grounds of judicial review............................................................................................................... 2

Background......................................................................................................................................... 3

1... Did the Medical Panel misconstrue or misapply the Guides by failing to assess the degree of impairment arising from an injury diagnosed as failed hernia repair with post herniorrhaphy pain syndrome?...................................................................................................................................... 5

Mr Adams’ submissions..................................................................................................... 5
Albury Wodonga Health’s submissions.......................................................................... 6
Principles.............................................................................................................................. 7
Analysis................................................................................................................................. 7

2... Did the Panel misconstrue or misapply the Guides by failing to apply criterion 3 in class 2 of table 7 as a stand-alone criterion?......................................................................................................... 10

Mr Adams’ submissions................................................................................................... 11
Albury Wodonga Health’s submissions........................................................................ 12
Principles............................................................................................................................ 12
Analysis............................................................................................................................... 17

3... Did the Panel fail to assess aggravation of a pre-existing injury as a potentially compensable injury?........................................................................................................................................................ 19

Mr Adams’ submissions................................................................................................... 19
Albury Wodonga Health’s submissions........................................................................ 20
Principles............................................................................................................................ 21
Analysis............................................................................................................................... 23

Conclusion......................................................................................................................................... 29

HER HONOUR:

Application

Mr Adams seeks orders quashing the determination made by a Medical Panel constituted by the first to third defendants on 8 March 2017.[1] The Medical Panel determined that the degree of impairment resulting from his claimed injury did not satisfy the threshold level prescribed in the Wrongs Act 1958. The injury claimed by Mr Adams is said to arise from an inguinal hernia repair procedure on 7 February 2014 performed by the fifth defendant, general surgeon Dr Heinrich Schwalb.
[1]Medical Panel, ‘Certificate of Determination’, Re: Mr Alan Adams, No M117/0117, 8 March 2017 (‘Certificate of Determination’): Exhibit WVK–10 to the affidavit of Wendy Victoria Kleyn affirmed on 16 February 2018 (‘the Kleyn affidavit’); see also Medical Panel, ‘Reasons for Determination’, Re: Mr Alan Adams, No M117/0117, 8 March 2017 (‘Reasons for Determination’): exhibit WVK–11 to the Kleyn affidavit.

Mr Adams has commenced…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams v Wadesley

Details

AGLC: Adams v Wadesley [2018] VSC 304
Case: [2018] VSC 304
Decision Date: 7 June 2018

CaseChat Overview and Summary

The case of Adams v Wadesley involved a judicial review application concerning a decision by a medical panel under the Wrongs Act 1958, specifically part VBA. The applicant, Adams, sought to challenge the panel's determination regarding the assessment of impairment and aggravation of a pre-existing injury. The dispute centred on whether the panel had correctly assessed the impairment and whether it had failed to consider the aggravation of the injury as a compensable matter. The matter was heard in the County Court of Victoria.

The primary legal issues before the court were whether the medical panel had committed a jurisdictional error in its assessment of impairment under the Wrongs Act 1958, and whether the panel had failed to properly consider the aggravation of a pre-existing injury as a potentially compensable injury. The applicant argued that the panel's decision was flawed due to misinterpretation of the relevant statutory provisions and the AMA Guides, which govern the assessment of impairment. The applicant contended that the panel should have assessed the impairment based on a palpable defect and correctly identified the class of hernia-related impairment.

The court found that the medical panel had indeed erred in its assessment of impairment. It determined that the panel had failed to follow the required statutory duty by not assessing the aggravation of the pre-existing injury as a potentially compensable injury. The court relied on the principles set forth in Chua v Lowthian and the grammatical construction and contextual approach to interpreting the AMA Guides. The court also considered the requirement of a palpable defect as outlined in Heinz Co Australia Ltd v Kotzman. Consequently, the decision of the medical panel was quashed, and the matter was remitted for reconsideration in light of the court's findings.

The final orders of the court were that the decision of the medical panel be quashed, and the matter be remitted for reconsideration in accordance with the court's reasons. The applicant was granted leave to apply for costs associated with the judicial review proceedings. The court emphasised the importance of adhering to statutory duties and proper interpretation of relevant legislative provisions and guides in such administrative law matters.

Orders