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Colquhoun v Capitol Radiology Pty Ltd

Colquhoun v Capitol Radiology Pty Ltd

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Case Copied 20 March 2013 27 min read

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2011 0072
S APCI 2011 0073
S APCI 2011 0074
S APCI 2011 0075

JANE COLQUHOUN
and
ELLEN ELIZABETH COLQUHOUN
and
DAVID COLQUHOUN
and
MARION GEORGIOU	Appellants
v CAPITOL RADIOLOGY PTY LTD
v CAPITOL RADIOLOGY PTY LTD	First Respondent
and
DR JOHN MALIOS (As Deputy Convenor of Medical Panels)	Second Respondent
and
MEDICAL PANEL (Constituted by DR DIANE NEILL and DR PETER FARNBACH)	Third Respondent

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JUDGES	MAXWELL P, WEINBERG JA and FERGUSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	9 November 2012
DATE OF JUDGMENT	20 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 58
JUDGMENT APPEALED FROM	Georgiou & Ors v Capitol Radiology Pty Ltd & Ors [2011] VSC 158 (Osborn J)

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DAMAGES – Non-economic loss – Right of action subject to statutory threshold – ‘Significant injury’ – Referral to medical panel – Adverse determination by panel – Conclusive of medical question – No merits review – Whether panel’s reasons adequate – Whether panel obliged to give reasons – No error – Appeal dismissed – Wrongs Act 1958 (Vic) pt VBA.

ADMINISTRATIVE LAW – Judicial review – Medical question – Whether appellants suffered ‘significant injury’ – Referral of ‘significant injury’ question to medical panel – Panel’s assessment disputed by appellants – Whether panel’s reasons inadequate – Whether error of law – Whether panel made assessment in accordance with Guide to the Evaluation of Psychiatric Impairments for Clinicians – Whether panel obliged to give reasons – Whether panel’s function judicial or administrative – Panel performing medical function – Whether Convenor’s direction to provide reasons beyond power – Direction invalid – No obligation to provide reasons – Appeal dismissed – Wrongs Act 1958 (Vic) pt VBA; Accident Compensation Act 1985 (Vic) s 45(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr A G Uren QC with Mr A D B Ingram	Clark Toop & Taylor
For the First Respondent	Ms K P Hanscombe SC with Ms F L McKenzie	Lander & Rogers
For the Second and Third Respondents	Mr A Pillay	Moray & Agnew

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MAXWELL P
WEINBERG JA
FERGUSON AJA:

Summary

The function of a statutory medical panel is to provide an opinion on a medical question referred to it.[1] The opinion which a panel gives is conclusive. It cannot be challenged on the merits, though it is amenable to judicial review — for example, for failure to comply with the requirements of procedural fairness.[2]
[1]Accident Compensation Act 1985 (Vic) s 67(1).
[2]See Masters v McCubbery [1996] 1 VR 635 (‘Masters’).

These appeals concern the giving of reasons for such an opinion. That issue has been much litigated under the Accident Compensation Act 1985 (Vic) (the ‘ACA’), which permits a medical question to be referred to a panel either in the course of, and for the purposes of, court proceedings;[3] or in the course of, and for the purposes of, the administrative determination of an entitlement to compensation under the ACA.[4]
[3]ACA s 45(1). See Sherlock v Lloyd (2010) 27 VR 434

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.

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Details

Case: [2013] VSCA 58
Decision Date: 20 March 2013

CaseChat Overview and Summary

In the matter of Colquhoun v Capitol Radiology Pty Ltd, the Court was called upon to consider the question of non-economic loss damages in the context of a statutory threshold for the right of action. The plaintiffs, Colquhoun, sought damages for non-economic loss following a medical procedure that allegedly resulted in significant injury. The defendants, Capitol Radiology Pty Ltd, contested the claim, leading to a referral of the question of whether the plaintiffs had suffered a 'significant injury' to a medical panel under the statutory scheme. The panel determined that the plaintiffs had not suffered a significant injury, a decision with which the plaintiffs were dissatisfied.

The legal issues before the court included whether the medical panel was obliged to provide reasons for its determination, whether the panel's reasons were adequate, and whether the panel's function was judicial or administrative. Additionally, the court had to consider whether the Convenor's direction to the panel to provide reasons was beyond their statutory power. The plaintiffs argued that the panel's reasons were inadequate and that there was an error of law in the panel's assessment. They further contended that the panel should have assessed the case in accordance with the Guide to the Evaluation of Psychiatric Impairments for Clinicians.

The court held that the medical panel was not obliged to provide reasons for its determination, as its function was medical rather than judicial. The court found no error in the panel's assessment, noting that the panel had not exceeded its statutory powers. It was also determined that the Convenor's direction to provide reasons was invalid, as there was no obligation for the panel to do so. The appeal was dismissed, and the plaintiffs' claim for non-economic loss damages was rejected. The court's decision was based on the interpretation of the statutory provisions and the nature of the panel's function.

Orders