Legal Research
Cases
La Rosa v Patrick

La Rosa v Patrick

Case [2022] VSC 404 18 July 2022

Judicial Review

Natural Justice & Procedural Fairness

Adverse Possession

Administrative Law

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 01003

FRANCESCO LA ROSA	Plaintiff
v
DR MARK PATRICK & ORS (according to the Schedule)	Defendants

---

JUDGE:	WALKER JA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2022
DATE OF JUDGMENT:	18 July 2022
CASE MAY BE CITED AS:	La Rosa v Patrick
MEDIUM NEUTRAL CITATION:	[2022] VSC 404

---

ADMINISTRATIVE LAW – Judicial review – Medical panel – Whether panel failed to properly construe and apply American Medical Association Guides to the Evaluation of Permanent Impairment – Whether panel’s failure to refer to part of Guides in reasons led to inference panel had failed to consider that part – Whether panel erred by failing to obtain and consider current x-rays – Whether panel failed to engage with a fundamental issue raised by the medical materials before it – Wrongs Act 1958, part VBA – HJ Heinz Co Australia Ltd v Kotzman [2009] VSC 311, Gamble v Emerald Hill Electrical Pty Ltd (2012) 38 VR 45, applied – Chang v Neil (2019) 62 VR 174, Sidiqi v Kotsios [2021] VSCA 187, discussed – No error of law or jurisdictional error – Proceeding dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Czarnota with Mr P Santamaria	Henry Carus + Associates
For the First and Second Defendants	No appearance	Russel Kennedy
For the Third Defendant	Ms F Spencer	Wotton + Kearney

TABLE OF CONTENTS

A.. Introduction and summary........................................................................................................ 1

B.. Part VBA of the Wrongs Act...................................................................................................... 2

C.. Factual Background..................................................................................................................... 3

D.. The Guides.................................................................................................................................... 6

E... The panel’s determination....................................................................................................... 10

F... Relevant principles.................................................................................................................... 14

G.. Grounds (a) and (b): failing to properly construe and apply the Guides....................... 19

(1).... The parties’ submissions concerning grounds (a) and (b)........................................... 19
(2).... Consideration of grounds (a) and (b)............................................................................. 21
(i)....... Did the panel fail to consider range of motion for the knee and Table 41?.. 24
(ii)...... Was the panel required to apply section 3.2g and Table 62?.......................... 25
(iii)..... Was the panel required to apply section 3.2g and Table 62 in combination with section 3.2i and Table 64?................................................................................................... 26
(iv)..... The significance of the panel’s reference to the footnote to Table 62............. 28
Mr La Rosa’s submissions on the footnote.............................................................. 28
Spotless’ submissions on the footnote..................................................................... 29
Consideration of the footnote issue......................................................................... 30

(3).... Conclusion on grounds (a) and (b)................................................................................. 32

H.. Ground (c): failure to obtain and consider current x-rays.................................................. 33

I. .. Ground (d): laxity of the cruciate ligaments......................................................................... 35

J.... Conclusion................................................................................................................................... 37

HER HONOUR:

A. Introduction and summary

The plaintiff, Mr La Rosa, alleges that he injured his leg when he slipped and fell on some stairs at a car park at Melbourne Airport. He wishes to recover damages for the injury from the third defendant, Spotless Facility Services Pty Ltd (‘Spotless’), which is the entity responsible for managing the car park where the incident occurred. Part VBA of…

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 La Rosa v Patrick

Details

AGLC: La Rosa v Patrick [2022] VSC 404
Case: [2022] VSC 404
Decision Date: 18 July 2022

CaseChat Overview and Summary

La Rosa v Patrick involved a challenge to the decision of a medical panel under the Wrongs Act 1958. The applicant, La Rosa, sought judicial review of the panel’s assessment of his permanent impairment, arguing that the panel failed to properly construe and apply the American Medical Association Guides to the Evaluation of Permanent Impairment (AMA Guides). The matter was heard in the Supreme Court of Victoria.

The central legal issues were whether the panel had failed to properly apply the AMA Guides, particularly by not referring to a specific part of the Guides in its reasons, and whether this omission led to an inference that the panel had not considered that part. Another issue was whether the panel erred by not obtaining and considering current x-rays. Finally, it was questioned whether the panel had failed to engage with a fundamental issue raised by the medical materials before it.

The court found that there was no error of law or jurisdictional error in the panel’s decision. It held that the panel had correctly applied the AMA Guides and had not failed to consider any relevant part of the Guides. The court also determined that the panel’s failure to obtain current x-rays did not amount to an error, as the existing materials were sufficient for the panel’s assessment. The court concluded that the panel had properly engaged with the medical materials before it, including the fundamental issues raised.

The Supreme Court dismissed the proceeding, finding no basis for the applicant’s claims of error in the panel’s decision.

Orders