Gamble v Emerald Hill Electrical Pty Ltd

[2012] VSCA 322

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0176

ANTHONY GAMBLE

Appellant

v

EMERALD HILL ELECTRICAL PTY LTD

First Respondent

and

DR PETER LOWTHIAN (Convenor of Medical Panels)

Second Respondent

and

MEDICAL PANEL (Constituted by Professor Graham Burrows, Dr Timothy Golumbeck, Dr David Barton, Mr Roy Carey and Dr Mark Faragher)

Third Respondent

and

CGU WORKERS COMPENSATION (VIC) LTD

Fourth Respondent

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JUDGES	MAXWELL P and CAVANOUGH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 May 2012
DATE OF JUDGMENT	20 December 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 322
JUDGMENT APPEALED FROM	Gamble v Emerald Hill Electrical Pty Ltd [2010] VSC 611 (Ross J)

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ACCIDENT COMPENSATION – Claim for impairment benefits – Impairment assessment – Assessment disputed by claimant – Referral of medical questions to medical panel – Whether panel members must collectively have sufficient medical expertise to address all issues – Power to retain consultants – Whether panel can adopt consultant’s opinion – Whether panel failed to take into account particular medical opinion – Whether panel assessed impairment ‘in accordance with’ AMA Guides – Appeal dismissed – Accident Compensation Act 1985 (Vic) ss 48, 63, 65–8, 104B(9), (12).

ADMINISTRATIVE LAW – Judicial review – Medical panel – Statement of reasons for medical opinion – Non‑adjudicative body – No review on merits – Nature of scrutiny of reasons – Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 applied – Accident Compensation Act 1985 (Vic) pt III, div 3.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A G Uren QC with Mr A D B Ingram	Holding Redlich
For the First and Fourth Respondents	Mr M Fleming SC with Mr B G Anderson	Hall & Wilcox
For the Second and Third Respondents	Mr D Masel SC	Monahan & Rowell

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MAXWELL P
CAVANOUGH AJA:

1. The function of a medical panel under the Accident Compensation Act 1985 (Vic) (the ‘Act’) is to provide an opinion on any medical question referred to it.[1]  In Sherlock v Lloyd,[2] this Court held that this is an expert medical function, not a judicial function.  A medical panel’s function is the same whether the reference to the panel occurs in the course of, and for the purposes of, court proceedings (as in Sherlock) or in the course of, and for the purposes of, administrative determination of an entitlement to compensation under the Act (as in the present case).

   [1]Section 67(1). The reference may be made by the County Court: s 45; or by the Victorian Workcover Authority or a self‑insurer: s 104B(9).

   [2](2010) 27 VR 434, 439 [20]–[21] (‘Sherlock’).

1. The decisions of medical panels, and the reasons which they give for their opinions, are nevertheless the subject of frequent challenge in proceedings by way of judicial review.[3]  The present case illustrates the need to emphasise the well‑established principles governing the approach of the reviewing court in such  cases.  First, however, we must briefly set out the procedural context.

   [3]See the decisions cited in Sherlock