JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2019
DATE OF JUDGMENT:	18 March 2019
CASE MAY BE CITED AS:	Donevski v Hunter
MEDIUM NEUTRAL CITATION:	[2019] VSC 163

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JUDICIAL REVIEW – Medical Panel – Determination that plaintiff’s degree of impairment did not satisfy ‘threshold level’ for a significant injury under Part VBA, Wrongs Act 1958 (Vic) – Whether Panel failed to consider current medical reports – Whether Panel failed to have regard to relevant information – Whether Panel’s determination inconsistent with opinion of a previous Medical Panel – Whether Panel had regard to irrelevant medical reports – Whether Panel’s determination procedurally unfair – Whether Panel’s determination unreasonable – No jurisdictional error in Panel’s determination.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Third Defendant	Ms R Kaye	Meridian Lawyers

HER HONOUR:

On 18 January 2014, Nove Donevski went shopping with his wife and daughter at Sunshine Plaza. On the way out, Mr Donevski pushed a fully laden shopping trolley from Woolworths onto a downward travelator. The trolley’s wheels did not lock onto the travelator – in effect, the brakes failed. Mr Donevski says he ran several steps to catch the trolley, held it to stop it from running into the people in front of him, and then fell down when the trolley reached the end of the travelator. He claims to have suffered injuries to his back, legs and shoulders as a result of this incident, for which he seeks compensation from Woolworths.

Under Part VBA of the Wrongs Act 1958 (Vic), Mr Donevski can only recover damages for non-economic loss if he suffered a ‘significant injury’ due to the runaway trolley.[1] In his case, this requires a medical assessment that ‘the degree of impairment of the whole person resulting from the injury’ satisfies the ‘threshold level’.[2]
[1]Wrongs Act 1958 (Vic) (Wrongs Act), s 28LE.
[2]Wrongs Act, s 28LF(1). The ‘threshold level’ is defined in s 28LB to mean, in the case of injury (other than psychiatric or spinal injury), impairment of more than 5 per cent and, in the case of spinal injury, impairment of 5 per cent or more.

In February 2017, Professor Kenneth Myers, a consulting surgeon, certified that he was satisfied that the degree of impairment resulting from injuries to both of Mr Donevski’s knees and to his back was more than 5% – that is, it satisfied the threshold level.[3] Mr Donevski’s solicitors served the certificate of assessment on Woolworths, and later gave the following details of his claim:[4]

On or about 8 January 2014 Mr Donevski suffered injuries to both knees and lower back, which injuries were caused by substandard equipment owned by Woolworths. Mr Donevski was travelling down a…

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 Donevski v Hunter

Details

AGLC: Donevski v Hunter [2019] VSC 163
Case: [2019] VSC 163
Decision Date: 18 March 2019

CaseChat Overview and Summary

Donevski v Hunter involved a challenge to a decision by a medical panel under the Wrongs Act 1958 (Vic), which determined that the plaintiff's degree of impairment did not meet the threshold for a significant injury. The case was heard in the Supreme Court of Victoria. The plaintiff sought judicial review of the panel's decision, arguing that the panel failed to consider certain medical reports, did not have regard to relevant information, and that their determination was inconsistent with a previous panel's opinion. The plaintiff also claimed that the panel had regard to irrelevant medical reports and that the determination was procedurally unfair and unreasonable.

The court needed to determine whether the medical panel's decision contained jurisdictional errors, including whether the panel failed to consider current medical reports, failed to have regard to relevant information, and whether the determination was inconsistent with a previous panel's opinion. The court also examined whether the panel had regard to irrelevant reports and whether the determination was procedurally unfair or unreasonable. The court needed to consider whether the panel's decision was so unreasonable that no reasonable panel could have made it.

The Supreme Court found that the panel's determination did not contain any jurisdictional errors. The court held that the panel did not fail to consider relevant medical reports or have regard to relevant information. The court found that the panel's determination was not inconsistent with the previous panel's opinion, and the panel did not have regard to irrelevant medical reports. The court also held that the determination was not procedurally unfair or unreasonable. The court concluded that the panel's decision was within the range of outcomes open to a reasonable panel.

The court dismissed the plaintiff's application for judicial review. The Supreme Court found no jurisdictional error in the panel's determination and upheld the decision that the plaintiff's degree of impairment did not meet the threshold for a significant injury under the Wrongs Act 1958 (Vic).

Orders