Kowal v O'Day

[2014] VSC 347

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 04094

LIONEL KOWAL	Plaintiff
v
JUSTIN O’DAY and ORS (according to the attached Schedule)	Defendants

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JUDGE:	Garde J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 June 2014
DATE OF JUDGMENT:	5 August 2014
CASE MAY BE CITED AS:	Kowal v O’Day
MEDIUM NEUTRAL CITATION:	[2014] VSC 347

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ADMINISTRATIVE LAW – Certiorari – Medical panel – Jurisdictional error - Failure to give sufficient reasons – Significant injury – Threshold level – AMA Guides – Section 8.3 – Assessment of pre-existing impairment – Alcoa Holdings Ltd v Lowthian [2011] VSC 245; Chua v Lowthian [2011] VSC 468; and Hatswell v Victoria [2013] VSC 262 followed – Colquhoun v Capital Radiology Pty Ltd [2013] VSCA 58 and Sherlock v Lloyd (2010) 27 VR 434 applied - Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64 considered – Wrongs Act1958 (Vic) ss 28LB, 28LE, 28LF, 28LG, 28LH, 28LN, 28 LNA, 28 LL, 28LWE, 28LZ, 28LZA and 28LZG – Administrative Law Act1978 (Vic) s 8(4) – Originating motion dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A S Pillay of Counsel	Moray & Agnew Lawyers
No appearance for the First and Second Defendants
For the Third Defendant	Mr P G Nash QC with Ms D E Foy of Counsel	Taylor & Preston Lawyers

HIS HONOUR:

Introduction

1. The plaintiff (‘Dr Kowal’) seeks an order in the nature of certiorari quashing the decision made on 13 June 2013 of a medical panel constituted by the first and second defendants (‘the panel’) on a reference made under the Wrongs Act1958 (Vic) (‘the Act’).

1. Dr Kowal is a specialist ophthalmologist. He was consulted by the third defendant, Master James Grant (‘the claimant’) on 7 January 2010. The claimant was then aged 13 years.

1. The claimant consulted Dr Kowal for advice as to how to treat his strabismus and diplopia. Dr Kowal recommended surgery. The surgery was performed on 22 January 2010 (‘the surgery’).

1. The claimant issued proceedings in the County Court on 12 December 2012 alleging that the surgery was performed negligently and that he suffered injury as a result. He claimed damages including non-economic loss damages.

1. Dr Kowal was served with a certificate of assessment (‘the certificate’) signed by Dr J Robert Nave (‘Dr Nave’), ophthalmologist, dated 9 November 2012, and a second certificate of assessment (‘the second certificate’) also signed by Dr Nave dated 30 November 2012.

1. On 9 January 2013, Dr Kowal referred a medical question in relation to the assessment of the claimant to a panel under s 28LWE of the Act. Both parties made submissions to the panel. The panel convened. The claimant was examined on 20 May 2013 by Dr Justin O’Day, ophthalmologist, and on 23 May 2013 by Dr Jack Owczarek, general practitioner.

1. The panel provided a certificate of determination (‘the determination’) and reasons for determination (‘reasons’) both dated 13 June…