Eastern Health v Neill - [2022] VSC 203

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03344

EASTERN HEALTH	First Plaintiff
- and-
MANISH AGASKAR	Second Plaintiff
v
DR DIANE NEILL AND DR STEVEN ADLARD CONSTITUTING THE MEDICAL PANEL PURSUANT TO THE WRONGS ACT 1958 (VIC) & ANOR (according to the schedule)	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2022
DATE OF JUDGMENT:	29 April 2022
CASE MAY BE CITED AS:	Eastern Health v Neill
MEDIUM NEUTRAL CITATION:	[2022] VSC 203

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ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Whether Medical Panel erred in finding significant injury by failing to disregard impairments from unrelated injuries or causes – Wrongs Act 1958 (Vic) ss 28LB, 28LL(3) – Where multiple necessary causes - Whether obligation to disentangle.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Mr B Jellis	Minter Ellison
For the Second Plaintiff	Mr B Jellis	Avant Law Pty Limited
For the First Defendant	No appearance	Russell Kennedy
For the Second Defendant	Mr R Kumar Ms R Ayres	Arnold Thomas & Becker Pty Ltd

HIS HONOUR:

A. Background

Stephanie Mortimer, the second defendant, has a long history of psychiatric illness, the effects of which have varied over the years. According to her current treating psychiatrist, she has a type of ‘episodic schizophrenia from which she makes a complete recovery without any residual impairment of mental function’. Ms Mortimer was also the legal guardian of her younger sister, Robena Lloyd. Ms Lloyd died on 7 August 2009 while in the care of Eastern Health, the first plaintiff, having earlier been assessed by Dr Manish Agaskar, the second plaintiff. Ms Mortimer has commenced proceedings in the County Court of Victoria in which she claims damages from Eastern Health and Dr Agaskar on the basis that they were negligent in their treatment of Ms Lloyd, and that Ms Mortimer has suffered psychiatric injury consequent upon her death.

Ms Mortimer is not entitled to recover damages for non-economic loss unless she has suffered a ‘significant injury’ as that term is defined in the Wrongs Act 1958 (‘the Act’).[1] For practical purposes, this requires either a certificate from a psychiatrist or a determination by a medical panel that her degree of impairment when assessed in accordance with the American Medical Association’s Guides to the Evaluation of Permanent Impairment (Fourth Edition) (‘A.M.A. Guides’), but as if for Chapter 14 of those guides there were substituted ‘The Guide to the Evaluation of Psychiatric Impairment for Clinicians’ (‘GEPIC’), was at least 10%, being the threshold level.[2]
[1]Wrongs Act 1958 (Vic) s 28LE.
[2]Wrongs Act 1958 (Vic) ss 28LI(1), 28LF(2)(a)–(b), 28LH(a)(ii), 28LI(1), 28LB (definitions of ‘A.M.A Guides’ and ‘threshold level’).

On 14 July 2021, a medical panel, consisting of two psychiatrists, (‘the Panel’) certified that the degree of Ms Mortimer’s psychiatric impairment did satisfy the threshold level. Eastern Health and Dr Agaskar have now applied for an order quashing the Panel’s determination. The Panel is,…

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: [2022] VSC 203
Decision Date: 29 April 2022

CaseChat Overview and Summary

Eastern Health brought a judicial review application against a decision of a Medical Panel which had found that the applicant had suffered a significant injury. The Panel had not disregarded the impact of other impairments which the applicant had suffered from causes unrelated to the incident which had led to the claim. The Court had to decide whether the Panel had erred in failing to disregard those impairments and whether, in the circumstances, the Panel was required to disentangle the contributions of different causes of impairment.

The Court found that the Panel had not erred in concluding that the impairments from unrelated causes should not be disregarded. The Court found that the statutory provisions did not require the Panel to disregard the impact of those impairments. Further, the Court held that there was no obligation on the Panel to disentangle the contributions of different causes of impairment where there were multiple necessary causes of the impairments. The applicant's claim for judicial review was dismissed.

The Court did not make any orders for costs.

Orders