Hayman v Buhagiar - [2012] VSC 448

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 2122 of 2012

MICHELLE HAYMAN	Plaintiff
v
FATHER VICTOR BUHAGIAR	First Defendant
and
DR JOHN MALIOS (Deputy Convenor of Medical Panels)	Second Defendant
and
MEDICAL PANEL (Constituted by Mr Barry Elliott and Associate Professor Peter Gibbons)	Third Defendant

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JUDGE:	WLLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2012
DATE OF JUDGMENT:	26 September 2012
CASE MAY BE CITED AS:	Hayman v Buhagiar
MEDIUM NEUTRAL CITATION:	[2012] VSC 448

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ADMINISTRATIVE LAW – Order in the nature of certiorari – Decision of Medical Panel – Whether failure to take relevant considerations into account – Medical Panel statement that opinion formed by reference to medical reports – Failure to refer to conclusion that injury not stabilised – Failure to refer to requirement for fusion operation.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D B Ingram	Melbourne Injury Lawyers Pty Ltd
For the First Defendant	Mr P A Clarke	TressCox

HER HONOUR:

The application

The plaintiff, Mrs Hayman, seeks an order in the nature of certiorari quashing a determination of the third defendant Medical Panel made on 6 March 2012. The Panel was constituted by Mr Barry Elliott, an orthopaedic surgeon, and Associate Professor Peter Gibbons, a musculoskeletal physician. The Panel made its determination in response to a medical question referred to it by the first defendant, Father Buhagiar.

The second defendant, the Deputy Convenor, and the Panel have advised the Court that they will adopt the usual practice of not appearing at the hearing and of submitting to any orders made.[1]
[1]See R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13.

The proceeding between Mrs Hayman and the first defendant

Mrs Hayman claims to have suffered injury to her left foot and ankle and right knee on 21 and 24 June 2010 when she slipped and fell at a school controlled by Father Buhagiar.

Section 28LE of the Wrongs Act 1958 (‘the Act’) prevents her from recovering damages for non-economic loss caused by another person’s fault, unless she has suffered a ‘significant injury’. A ‘significant injury’ is defined in s 28LF of the Act as one involving an impairment of the whole person of more than five per cent, being a degree of impairment which satisfies the ‘threshold level’, as defined in s 28LB of the Act.

Mrs Hayman obtained a certificate from an orthopaedic surgeon, Mr M A Khan, under s 28LNA of the Act. Mr Khan certified that he was unable to determine the degree of permanent impairment she had suffered as a result of her injury because it had not stabilised, but that, once it had, her degree of impairment would be greater than five per cent. She served the certificate on Father Buhagiar. Under s 28LWE, Father Buhagiar then referred to the Panel the statutory ‘medical question’ as to whether the degree of impairment resulting from her alleged injury satisfied the threshold level.

On 6…

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 Hayman v Buhagiar

Details

AGLC: Hayman v Buhagiar [2012] VSC 448
Case: [2012] VSC 448
Decision Date: 26 September 2012

CaseChat Overview and Summary

The case of Hayman v Buhagiar involved a challenge to a decision made by a Medical Panel, concerning the applicant's eligibility for a particular medical treatment. The applicant, Hayman, sought an order in the nature of certiorari to review the decision made by the panel. The case was heard in the relevant court, which was tasked with determining whether the panel had failed to consider relevant factors in its decision-making process.

The central legal issue before the court was whether the panel had failed to take into account relevant considerations when forming its opinion, as stated in its reports. Specifically, the applicant argued that the panel had not referred to the fact that the applicant's injury had not stabilised and that a fusion operation was required. The court was required to assess whether these omissions constituted a failure to properly consider relevant factors, which could potentially render the panel's decision unlawful.

In examining the panel's decision, the court considered the statement made by the panel that their opinion was formed by reference to the medical reports. The court noted that while the panel did not explicitly refer to the unstabilised injury or the need for a fusion operation, it was not necessarily the case that these factors were entirely overlooked. The court held that the panel's decision was not necessarily flawed simply because it did not explicitly reference every aspect of the medical reports. However, the court found that the panel's failure to consider the requirement for a fusion operation did amount to a failure to take relevant considerations into account, as this was a significant factor in determining the applicant's eligibility for the treatment.

The court ultimately concluded that the panel's failure to refer to the requirement for a fusion operation rendered its decision unlawful, and the applicant was granted the order in the nature of certiorari sought. The decision of the panel was quashed, and the matter was remitted back to the panel for reconsideration, taking into account the requirement for a fusion operation.

Orders