Capel Sound v Sim - [2025] VSC 485

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 05863

BETWEEN:

CAPEL SOUND FORESHORES COMMITTEE OF MANAGEMENT	Plaintiff
v
EMERITUS PROFESSOR MALCOLM SIM & ORS (according to the attached schedule)	Defendants

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JUDGE:	Barrett AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2025
DATE OF JUDGMENT:	13 August 2025
CASE MAY BE CITED AS:	Capel Sound v Sim & Ors
MEDIUM NEUTRAL CITATION:	[2025] VSC 485

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Determination of ‘significant injury’ by panel under Part VBA of the Wrongs Act 1958 (Vic) – Whether panel erred in combining assessments under different methods in the AMA Guides – Whether panel was precluded under the AMA Guides from combining peripheral nerve assessment of one impairment under s 3.2k, with manual muscle testing assessment of another impairment under s 3.2d – Whether medical panel’s decision in accordance with the AMA Guides – Whether jurisdictional error of a medical panel – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Paul Czarnota	Hall & Wilcox
For the First and Second Defendant	No appearance	No appearance
For the Third Defendant	Mr Peter Haddad	Slater & Gordon

TABLE OF CONTENTS

Introduction

Principles

What Does the AMA Guides Require?

The Panel’s Decision and Reasons

Submissions

Consideration

HIS HONOUR:

Introduction

The third defendant alleges he slipped and fell on a slimy boat ramp in Tootgarook in 2019, suffering injuries to his knee including a quadriceps tendon tear, stiffness, pain and sensory loss and scarring. He seeks to recover damages, including for non-economic loss, from Capel Sound Foreshores Committee of Management (‘the plaintiff’) for those injuries. In order to recover damages for pain and suffering, the third defendant must establish that he has suffered a ‘significant injury’ as that term is defined in Part VBA of the Wrongs Act 1958 (Vic) (‘Wrongs Act’).[1] The Wrongs Act provides a procedure for the determination of whether an individual has suffered such an injury, including referral to a medical panel.
[1]The relevant threshold is a whole body impairment of more than a 5%.
Initially, an Orthopaedic Surgeon (Dr Mills) certified that the third defendant’s degree of impairment satisfied the ‘significant injury’ threshold. This certificate was served by the third defendant’s solicitors on the plaintiff in accordance with s 28LT(2) of the Wrongs Act. The plaintiff subsequently referred the medical question (whether the third defendant had suffered a significant injury) to a medical panel, pursuant to s 28LZG(2)(a) of the Wrongs Act. The Medical Panel (‘the Panel’), comprising the first and second defendants, examined the third defendant and determined that he had suffered a ‘significant injury.’
The plaintiff seeks orders quashing the decision of the Panel and referring the question to a differently constituted panel. The plaintiff essentially submits that the Panel committed a jurisdictional error by impermissibly combining impairment for muscle weakness (Manual Muscle Testing) with Peripheral Nerve Injuries, contrary to the…

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 Capel Sound v Sim

Details

AGLC: Capel Sound v Sim [2025] VSC 485
Case: [2025] VSC 485
Decision Date: 13 August 2025

CaseChat Overview and Summary

The case of Capel Sound v Sim involved a dispute concerning the determination of a 'significant injury' under Part VBA of the Wrongs Act 1958 (Vic). The issue arose from the assessment made by a medical panel, which was challenged by the appellant, Capel Sound. The respondent, Sim, sought to uphold the panel's decision. The matter was brought before the court for judicial review, with the primary focus on whether the panel had correctly interpreted and applied the American Medical Association (AMA) Guides in its assessment of the respondent's injuries.

The court was tasked with determining whether the panel had erred in combining assessments under different methods as prescribed by the AMA Guides. Specifically, the question was whether the panel was precluded from combining a peripheral nerve assessment of one impairment under section 3.2k with a manual muscle testing assessment of another impairment under section 3.2d. Additionally, the court needed to assess whether the panel's decision was in accordance with the AMA Guides and whether it constituted a jurisdictional error.

In its decision, the court examined the application of the AMA Guides by the panel and concluded that the panel had not erred in its interpretation or application of the guides. The court found that the panel's decision was consistent with the provisions of the AMA Guides, and thus, the panel's assessment method was appropriate. The court held that the panel did not commit a jurisdictional error, and therefore, the appeal was dismissed. The respondent's position was upheld, and the medical panel's determination was affirmed.

Orders