JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2011 (Final written submissions 10 August 2011)
DATE OF JUDGMENT:	20 September 2011
CASE MAY BE CITED AS:	Chua v Lowthian & Ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 468

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MEDICAL NEGLIGENCE – Medical Panel’s decision as to threshold level of impairment – Common law principles relevant to the claimant’s claim – Nature of claimant’s alleged injury – Statutory provisions governing the Panel’s assessment – History of assessment of the claimant’s injury – Whether Panel undertook an assessment of impairment ‘at large’ – Whether Panel failed to disregard pre-existing impairment of the left ankle – Whether Panel misdirected itself in applying s 28LL(3) of the Wrongs Act 1958 – Panel equating the ascertainment of pre-existing impairment with assessment in accordance with the AMA Guides – Panel misdirecting itself as to the necessity to disregard pre-existing impairment – Whether Panel required to take into account the possibility claimant’s impairment might be due to the ordinary course of pre-existing condition – Jurisdictional error – Error of law on the face of the record – Wrongs Act 1958, ss 28LB, 28LC, 28LD, 28LE, 28LF, 28LH, 28LL, 28LN, 28LNA, 28LT, 28LW, 28LWE, 28LZ, 28LZG, 28LZH, 28LZI, pt VBA.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Fleming SC with Mr G Wicks	Thomsons Lawyers
For the First and Second Defendants	Mr D Masel	Monahan + Rowell
For the Third Defendant	Mr P G Nash QC with Mr G Burns	MW Law

TABLE OF CONTENTS

Introduction......................................................................................................................................... 2

The common law context.................................................................................................................. 5

The claimant’s injury......................................................................................................................... 9

The Wrongs Act 1958....................................................................................................................... 13

The history of assessment............................................................................................................... 23

Did the Panel misdirect itself by undertaking an assessment of the impairment of the claimant’s left ankle ‘at large’?................................................................................................................................. 32

Did the Panel fail to disregard pre-existing impairment of the left ankle in accordance with s 28LL(3) of the Act?............................................................................................................................................... 35

Did the Panel misdirect itself in the manner in which it applied s 28LL(3)?........................ 37

Did the Panel equate the ascertainment of pre-existing impairment with assessment of such injury in accordance with the AMA Guides?............................................................................................... 42

Was the Panel required to assess the claimant’s impairment against the possibility that such impairment might only be due to the ordinary course of the pre-existing condition, and/or the ordinary course of its reasonable treatment?............................................................................................... 44

Jurisdictional error or error of law on the face of the record.................................................... 46

Conclusion......................................................................................................................................... 50

HIS HONOUR:

Introduction

The plaintiff, Dr Chua, is a general practitioner who treated the third defendant, Helen Campbell (‘the claimant’) for difficulties with respect to her left ankle and foot over a period of approximately two years before referring her on for specialist treatment.

The claimant has issued proceedings in the County Court, claiming that if Dr…

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 Chua v Lowthian

Details

AGLC: Chua v Lowthian [2011] VSC 468
Case: [2011] VSC 468
Decision Date: 20 September 2011

CaseChat Overview and Summary

The matter before the court involved a claim for damages for medical negligence brought by Chua against Lowthian. Chua alleged that Lowthian, a medical practitioner, negligently assessed her injury, resulting in an inadequate evaluation of her impairment. The case was heard in the Supreme Court of Victoria. The dispute centred on the assessment of the threshold level of impairment by the Medical Panel, and the application of relevant statutory provisions and common law principles. The court had to determine whether the Panel correctly assessed the impairment, disregarded pre-existing conditions, and applied the statutory provisions appropriately.

The central legal issues revolved around the Panel's assessment of the claimant's impairment, its application of the statutory provisions, and whether it had made jurisdictional or legal errors. Specifically, the court needed to determine if the Panel had undertaken an assessment of impairment 'at large', disregarded pre-existing impairment of the left ankle, and correctly applied section 28LL(3) of the Wrongs Act 1958. Furthermore, the court considered whether the Panel misdirected itself in equating the ascertainment of pre-existing impairment with an assessment in accordance with the AMA Guides, and whether it failed to take into account the possibility that the claimant's impairment might be due to the ordinary course of a pre-existing condition.

The court held that the Panel had indeed made jurisdictional and legal errors in its assessment of the claimant's impairment. It found that the Panel failed to disregard the pre-existing impairment of the left ankle and misdirected itself in applying section 28LL(3) of the Wrongs Act 1958. The court concluded that the Panel had not undertaken an assessment of impairment 'at large' and had incorrectly equated the ascertainment of pre-existing impairment with an assessment in accordance with the AMA Guides. The Panel had also failed to consider the possibility that the claimant's impairment might be due to the ordinary course of a pre-existing condition.

The court quashed the Panel's decision and remitted the matter back to the Panel for reassessment in accordance with the court's directions. The court emphasised the importance of correctly applying statutory provisions and common law principles in the assessment of impairment, and highlighted the need for the Panel to disregard pre-existing conditions and take into account the possibility that the claimant's impairment might be due to the ordinary course of a pre-existing condition.

Orders