Legal Research
Cases
Boroondara City Council v Howell

Boroondara City Council v Howell

Link copied

Case Copied 14 July 2023 41 min read

Contents

On this page

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 01465

BOROONDARA CITY COUNCIL	Plaintiff
v
MARGARET HOWELL	First Defendant
and
DR DAVID MURPHY and MR JOHN SKELLEY	Second and Third Defendants

---

JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 June 2023
DATE OF JUDGMENT:	14 July 2023
CASE MAY BE CITED AS:	Boroondara City Council v Howell
MEDIUM NEUTRAL CITATION:	[2023] VSC 406

---

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 satisfied the threshold level for a ‘significant injury’ — Whether Panel’s assessment of degree of impairment in accordance with the AMA Guides — Whether Panel failed to disregard impairments from unrelated injuries or causes — Whether Panel acted unreasonably by failing to obtain further medical records — Wrongs Act 1958 (Vic), ss 28LH, 28LL.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms RL Kaye KC with Mr T Staindl	Kennedys Lawyers
For the First Defendant	Mr PA Czarnota and Mr AJ Macaskill	Slater & Gordon Ltd
For the Second and Third Defendants	No appearance

HER HONOUR:

On 11 July 2019, Margaret Howell walked from her home in Glen Iris to post a letter. On her way back, she tripped on a raised section of footpath, and fell and twisted her right knee. She was able to walk the rest of the way home, but later developed right knee pain and swelling, for which she sought medical treatment. Ms Howell’s orthopaedic surgeon, Mr Camdon Fary, prescribed a hinged knee brace, and referred her for an MRI, which showed her to have a strain of the lateral collateral ligament and an effusion with aggravation of her arthritis.

After wearing the knee brace for some weeks, Ms Howell was keen to return to her previous habit of walking without an aid. Her son expressed concern about her risk of further falls, and Mr Fary recommended that Ms Howell use a four-wheeled walking frame when out and about. Since then, Ms Howell has used a wheeled frame when walking outdoors.

Ms Howell claims compensation from Boroondara City Council, on the basis that it is responsible for the footpath where she fell and injured her right knee. Under Pt VBA of the Wrongs Act 1958 (Vic), Ms Howell can only recover damages for non-economic loss if she suffered a ‘significant injury’ as a result of her fall.[1] This requires a medical assessment that ‘the degree of impairment of the whole person resulting from the injury’ satisfies the ‘threshold level’.[2]
[1]Wrongs Act 1958 (Vic), s 28LE.
[2]Wrongs Act, s 28LF(1). The ‘threshold level’ is defined in s 28LB, and described at [31] below.

On 6 October 2021, Mr Craig Mills, an orthopaedic surgeon, provided a certificate of assessment for Ms Howell, which certified that he was satisfied that the degree of impairment…

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.

Keep reading for free

Create a free CaseChat account to read Boroondara City Council v Howell and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] VSC 406
Decision Date: 14 July 2023

CaseChat Overview and Summary

The case of Boroondara City Council versus Howell involved a dispute over the assessment of the plaintiff's degree of impairment as part of a claim for compensation under Part VBA of the Wrongs Act 1958 (Vic). The plaintiff alleged that she suffered a significant injury due to a car accident, and the Medical Panel appointed to assess the claim determined her degree of impairment. The plaintiff challenged the Panel's determination, arguing that it was unreasonable and failed to properly apply the American Medical Association Guides to the Evaluation of Permanent Impairment. The case was heard in the Supreme Court of Victoria, which was tasked with reviewing the Panel's decision.

The central legal issue before the court was whether the Medical Panel's assessment of the plaintiff's degree of impairment complied with the relevant statutory framework and whether it correctly applied the AMA Guides. Additionally, the court considered whether the Panel erred by not disregarding impairments resulting from unrelated injuries or causes, and whether the Panel acted unreasonably by not seeking further medical records. The plaintiff argued that the Panel failed to follow the prescribed guidelines and procedures, leading to an unreasonable determination.

The court found that the Medical Panel had correctly applied the AMA Guides in assessing the plaintiff's degree of impairment. It was noted that the Panel's determination was consistent with the relevant provisions of the Wrongs Act 1958 (Vic). Furthermore, the court held that there was no basis to conclude that the Panel had failed to disregard impairments from unrelated injuries or causes. Regarding the plaintiff's contention about the Panel's failure to obtain further medical records, the court found that such an action did not render the Panel's decision unreasonable. The court held that the Panel's assessment was comprehensive and in accordance with the statutory requirements.

In conclusion, the court dismissed the plaintiff's application for judicial review, affirming the Medical Panel's determination. The plaintiff was not successful in her challenge, and the court upheld the Panel's assessment of her degree of impairment. This decision underscores the importance of adhering to the statutory guidelines and procedures when assessing claims for compensation under the Wrongs Act 1958 (Vic).

Orders