Deitrich v Pulse Pharmacy Northcote Pty Ltd - [2014] VSC 307

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2012 02406

CRAIG DEITRICH

Plaintiff

PULSE PHARMACY NORTHCOTE PTY LTD
-and-
DR PETER LOWTHIAN
(Convenor of Medical Panels)
-and-
MEDICAL PANEL
(Constituted by Dr Jennifer Harmer and Mr John Bourke)

Firstnamed Defendant

Secondnamed Defendant

Thirdnamed Defendant

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2014
DATE OF JUDGMENT:	7 August 2014
CASE MAY BE CITED AS:	Deitrich v Pulse Pharmacy Northcote Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 307

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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Whether injury stabilised – Whether stability a jurisdictional fact – Wrongs Act 1958 (Vic) ss 28LH, 28LN, 28LNA, 28LZG, 28LZH, 28LZI.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A G Uren QC and Mr A D Ingram	Shine Lawyers
For the First Defendant	Mr R P Gorton QC and Mr S Mukerjea	Moray & Agnew
For the Second and Third Defendants	No appearance

HIS HONOUR:

The plaintiff, Mr Deitrich, seeks judicial review of a determination of a Medical Panel constituted under the Wrongs Act 1958 (Vic) (“the Act”) made on 28 February 2012, which determined that the degree of impairment resulting from the injury that he claimed to have suffered did not satisfy the threshold level prescribed by the Act. He seeks an order quashing the Certificate of Determination of the Medical Panel.

Mr Deitrich’s case is that he sustained injury on 27 February 2010, while present at the Pulse Pharmacy at Northcote Plaza, where he fell heavily when his foot came into contact with a promotional poster which was situated on the floor surface. His case was that he suffered injury to his left hip.

Mr Deitrich commenced proceedings in the County Court against the first defendant (Pulse Pharmacy Northcote) seeking damages for the injuries that he claimed to have suffered. He relied on the report by an orthopaedic surgeon, Mr T Kossmann, of 28 July 2012 and a certificate pursuant to s 28LN of the Act, that he met the statutory threshold.

The first defendant referred Mr Deitrich’s claim to the second defendant as a convenor of Medical Panels. The referral was received on 20 November 2010 and the second defendant appointed the Medical Panel to assess Mr Deitrich’s impairment.

The question referred to the Medical Panel, and the answer or its determination given under s 28LWE of the Act, were as follows:

Q.Does the degree of impairment resulting from the injury to the claimant alleged in the claim satisfy the threshold level?
A.The Panel determined that the degree of whole person impairment resulting from the injury to the claimant alleged in the claim does not satisfy the threshold level.

That question and the Medical Panel’s answer were contained in the Panel’s Certificate of Determination given pursuant to s 28LZG(2)(a) of the Act.

The Medical Panel stated that it formed its opinion by reference to the documents and the information referred to, in…

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: [2014] VSC 307
Decision Date: 7 August 2014

CaseChat Overview and Summary

In Deitrich v Pulse Pharmacy Northcote Pty Ltd, the plaintiff sought judicial review of a decision made by a Medical Panel regarding his compensation claim under the Wrongs Act 1958 (Vic). The plaintiff, who had suffered injuries as a result of a medical incident, argued that the panel had erred in determining that his injuries had stabilised. The dispute centred on whether the determination of injury stability constituted a jurisdictional fact, which would necessitate a fresh consideration by the court. The Court of Appeal was tasked with examining the statutory provisions and the role of the Medical Panel in making such determinations.

The legal issues before the court included whether the stability of injuries was a jurisdictional fact that required independent judicial determination, and whether the Medical Panel had correctly exercised its discretion in finding that the plaintiff's injuries had stabilised. The court had to interpret sections 28LH, 28LN, 28LNA, 28LZG, 28LZH, and 28LZI of the Wrongs Act 1958 (Vic) to ascertain the scope of the panel's authority and the nature of its findings. The plaintiff argued that the panel's decision on injury stability was not only a question of fact but also involved a jurisdictional element that warranted judicial scrutiny.

In its reasoning, the court determined that the stabilisation of injuries was not a jurisdictional fact that required independent judicial determination. The court held that the Medical Panel's role was to make factual findings within the scope of its statutory mandate, and its determination on injury stability did not fall outside its jurisdiction. The panel's assessment was found to be a matter of fact and discretion, which the court was not empowered to revisit unless there was an error in the exercise of that discretion. Consequently, the court dismissed the plaintiff's application for judicial review.

The court's final orders were that the plaintiff's application for judicial review be dismissed, and the decision of the Medical Panel regarding the stabilisation of the plaintiff's injuries be upheld. The court clarified that the panel's findings on injury stability were not jurisdictional facts and were within the panel's statutory authority. The plaintiff's argument that the panel had erred in its determination was rejected, and the panel's decision was affirmed.

Orders