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 | |
| 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 | 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
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- Case
- [2013] VSCA 58
- Decision Date
CaseChat Overview and Summary
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.
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