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Arik v Vicinity Centres PM Pty Ltd

Arik v Vicinity Centres PM Pty Ltd

Case [2023] VSC 94 3 March 2023

Judicial Review

Admissibility of Evidence

Expert Evidence

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03145

MELEK ARIK	Plaintiff
v
VICINITY CENTRES PM PTY LTD	First Defendant
and
ASSOCIATE PROFESSOR PETER GIBBONS, as the Convenor of Medical Panels	Second Defendant
and
ASSOCIATE PROFESSOR DAVID ERNEST and MR KEITH McCULLOUGH	Third and Fourth Defendants

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2022 Further written submissions filed 25 November 2022 and 9 December 2022
DATE OF JUDGMENT:	3 March 2023
CASE MAY BE CITED AS:	Arik v Vicinity Centres PM Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 94

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ADMINISTRATIVE LAW – Judicial review – Determination by a Medical Panel of a medical question referred under Part VBA of the Wrongs Act 1958 (Vic) – Panel’s determination that plaintiff’s degree of impairment did not satisfy the threshold level for a ‘significant injury’ – Whether Panel’s assessment of degree of impairment in accordance with the AMA Guides – Admissibility of expert evidence as to application of AMA Guides – Wrongs Act 1958 (Vic), s 28LH.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr LBR Allan and Ms G Angelowitsch	Zaparas Lawyers
For the First Defendant	Ms FC Spencer	HWL Ebsworth Lawyers
For the Second to Fourth Defendants	No appearance

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
The Panel’s determination and reasons..................................................................................... 3
Applicable provisions and principles........................................................................................ 6
The Guides..................................................................................................................................... 9
Preliminary matter – Subpoena for production..................................................................... 12
Consideration..................................................................................................................... 14

Preliminary matter – Admissibility of evidence not before the Panel................................ 16
Associate Professor Buzzard’s report............................................................................. 17
Mr Dooley’s report............................................................................................................ 19

Preliminary matter – Application to amend originating motion......................................... 22
Preliminary matter – Extrinsic materials as an aid to interpreting the Guides................. 23
Consideration..................................................................................................................... 25

Was the Panel’s assessment in accordance with the Guides?.............................................. 27
Ms Arik’s submissions...................................................................................................... 27
Vicinity’s submissions...................................................................................................... 31
Consideration..................................................................................................................... 34

Disposition................................................................................................................................... 41

HER HONOUR:

Introduction

On 1 December 2019, while visiting Broadmeadows Central Shopping Centre, Melek Arik slipped on a wet floor. She lost her footing and fell forward onto her right knee. Ms Arik was attended by Centre staff, who gave her an ice pack for her knee and helped her to the bus stop. Soon after the fall, Ms Arik became aware of swelling in her right knee and burning in her right groin.

The following day, Ms Arik consulted her general practitioner about pain in her right knee, right hip, and lower back. The general practitioner arranged medical imaging investigations, which found pre-existing degenerative change in the lumbo-sacral spine, but no pathology in her right knee or hip. Ms Arik’s symptoms persisted, and an MRI scan of her right hip in April 2020 reported features of low-grade trochanteric bursitis and a chronic superior labral tear. She claims to have suffered injuries to her lower back and right hip, for which she seeks compensation from the owner and manager of the Centre, Vicinity Centres PM Pty Ltd.

Under Pt VBA of the Wrongs Act 1958 (Vic), Ms Arik can…

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 Arik v Vicinity Centres PM Pty Ltd

Details

AGLC: Arik v Vicinity Centres PM Pty Ltd [2023] VSC 94
Case: [2023] VSC 94
Decision Date: 3 March 2023

CaseChat Overview and Summary

The case of Arik v Vicinity Centres PM Pty Ltd involved a judicial review of a determination by a Medical Panel under Part VBA of the Wrongs Act 1958 (Vic). The plaintiff, Arik, sought to challenge the Panel's conclusion that his degree of impairment did not meet the threshold for a 'significant injury', as defined by the AMA Guides. This determination was pivotal as it influenced the eligibility for compensation under the Act. The crux of the dispute centred on whether the Panel's assessment of the plaintiff's impairment was conducted in accordance with the AMA Guides and if the plaintiff's expert evidence regarding the application of these guides was admissible.

The primary legal issues that the court had to address were whether the Panel's interpretation and application of the AMA Guides were correct, and if the plaintiff's expert evidence was appropriately admitted. The court had to consider if the Panel's process adhered to the statutory requirements and if any procedural errors were made. Furthermore, the admissibility of the plaintiff's expert evidence was scrutinized to determine if it was relevant and reliable in assisting the court in understanding the application of the AMA Guides.

The court found that the Panel's assessment of the plaintiff's degree of impairment was in accordance with the AMA Guides, and no procedural errors were evident. The court upheld the Panel's determination, noting that it was consistent with the guidelines and that the plaintiff's expert evidence, while informative, did not alter the Panel's assessment. The court ruled that the Panel's decision was rational and based on a correct interpretation of the relevant legislative provisions. Consequently, the plaintiff's application for judicial review was dismissed.

The final orders of the court confirmed the Panel's determination and dismissed the plaintiff's application for judicial review. The court's decision underscored the importance of adhering to the AMA Guides in assessing impairment for the purposes of the Wrongs Act 1958 (Vic) and highlighted the limitations of expert evidence in challenging such assessments.

Orders