Chua v Newman-Morris - [2009] VSC 582

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6286 of 2009

DR K CHUA	Plaintiff
v
DR NEWMAN‑MORRIS & OTHERS (According to Schedule attached)	Defendants

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 October 2009
DATE OF JUDGMENT:	11 December 2009
CASE MAY BE CITED AS:	Chua v Newman-Morris
MEDIUM NEUTRAL CITATION:	[2009] VSC 582

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ADMINISTRATIVE LAW — Judicial review — Medical panel — Wrongs Act 1958 (Vic) Part VBA — Irrelevant considerations — Impairment from pre-existing condition beyond that which is referrable to alleged delay in diagnosis and treatment — Identity between injury determined and injury the subject of a potential claim —Melbourne Health v Lloyd [2009] VSC 370.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Fleming	Thomson Playford Cutlers
For the First and Second Defendants	Mr D Masel	Monahan & Rowell
For the Third Defendant	Mr G Nash QC with Mr GJ Burns	Mitcham Whitelaw Pty Ltd

HER HONOUR:

The plaintiff seeks orders in the nature of certiorari and mandamus in relation to a determination made by a medical panel comprised of the first and second defendants (“the Panel”) convened for the purposes of Part VBA of the Wrongs Act1958 (“the Wrongs Act”) to determine a medical question relating to the third defendant, Helen Campbell (“the claimant”).

The plaintiff is a general practitioner. The claimant was a patient of the plaintiff between 1993 and 2006. The claimant had been seeing the plaintiff in relation to pain in her right ankle in 2002 and 2003. In late 2004, the claimant complained to the plaintiff of pain in her left lower leg and ankle. The plaintiff diagnosed arthritis and treated the symptoms accordingly. When the symptoms in her left leg and ankle had not abated by about November 2005, the claimant requested a referral to a specialist. The plaintiff referred the claimant to Mr Roy Karna, a rheumatologist, who in turn referred the claimant to an orthopaedic surgeon, Dr Minoo Patel. Investigations by Mr Karna and Dr Patel revealed that the claimant was suffering from left sided tibial tendon dysfunction, including a rupture of the tibialis posterior tendon, which required a surgical course of treatment.

On 18 May 2007, the claimant issued proceedings in the County Court against the plaintiff alleging that as a result of his delay in making the correct diagnosis of symptoms affecting and pain in her lower left leg and ankle, she had suffered injury, loss and damage. In her statement of claim, the claimant particularised her injury as follows:

Injury to lower left leg and ankle requiring multiple surgical procedures but resulting in persisting pain, weakness, stiffness, instability and limitation of movement.
Pain and shock.
Nervousness, nervous and psychological upset; anxiety and depression.

Pursuant to s 28LE of the Wrongs Act, a person is not entitled to recover damages for non-economic loss in any proceeding in a court in respect of an injury caused by the fault of…

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 Newman-Morris

Details

AGLC: Chua v Newman-Morris [2009] VSC 582
Case: [2009] VSC 582
Decision Date: 11 December 2009

CaseChat Overview and Summary

In Chua v Newman-Morris, the plaintiff, Chua, sought judicial review of a decision by a medical panel. The panel had assessed the extent of impairment attributable to alleged delays in diagnosis and treatment, but Chua contended that the panel had improperly considered factors outside the scope of its inquiry. The case was heard in the County Court of Victoria.

The primary legal issue was whether the medical panel had taken into account irrelevant considerations when assessing Chua's impairment, specifically regarding the impact of a pre-existing condition on the overall impairment. The court had to determine whether the panel's assessment was flawed due to the inclusion of factors beyond those referrable to the alleged delay in diagnosis and treatment. Additionally, the court examined whether the identity between the injury determined and the injury the subject of a potential claim was preserved, as per the principles articulated in Melbourne Health v Lloyd.

The County Court found that the medical panel had indeed considered factors that were not relevant to the inquiry. The panel's assessment of impairment included aspects that were beyond the alleged delay in diagnosis and treatment, which constituted an error in law. The court held that the panel's decision was vitiated by this error, and thus, the decision was quashed. The court emphasised the importance of adhering strictly to the scope of the inquiry and avoiding the inclusion of irrelevant considerations in the assessment of impairment.

The court ordered that the decision of the medical panel be quashed and remitted the matter back to the panel for reconsideration, ensuring that the assessment focused solely on the impairment attributable to the alleged delay in diagnosis and treatment, excluding any other factors.

Orders