Larman v Homolka - [2024] VSC 756

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 03282

JAMES LARMAN	Plaintiff
v
DRS SUSANNE HOMOLKA CONSTITUTING THE MEDICAL PANEL PURSUANT TO THE WRONGS ACT 1958 (VIC) (and others according to the attached Schedule)	Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 June 2024
DATE OF JUDGMENT:	5 December 2024
CASE MAY BE CITED AS:	Larman v Homolka
MEDIUM NEUTRAL CITATION:	[2024] VSC 756

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JUDICIAL REVIEW – Medical Panel – Alleged jurisdictional errors – Panel’s duty to disregard impairment from unrelated injuries or causes – Whether Panel erred in identification of impairment from unrelated injury or cause – Whether finding that impairment from unrelated injuries or causes was playing a part in plaintiff’s current impairment – Alleged factual errors – Wrongs Act 1958 s 28LL(3).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms F Spencer SC Ms J Cowen	Slater & Gordon
For the First Defendant	No appearance	DLA Piper
For the Second Defendant	Ms R Kaye KC Ms S Gold	Minter Ellison
For the Third Defendant	As above	Meridian Lawyers
For the Fourth Defendant	As above	Kennedys (Australasia) Partnership

HIS HONOUR:

The plaintiff, Mr James Larman, seeks judicial review of a certificate of determination of a medical question by a Medical Panel dated 23 May 2023. The medical question and the determination were:

Question: Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?

Answer: The Panel determined that the degree of whole person impairment resulting from the physical injury to the claimant alleged in the claim does not satisfy the threshold level.

The Panel consisted of the first defendant, who is an occupational and environmental physician. Dr Peter Burke, a general surgeon, was a consultant to the Panel and participated in its examination of the plaintiff.

I have concluded that that the plaintiff has established that he is entitled to judicial review remedies quashing the Medical Panel’s determination and requiring the redetermination of the medical question. I have concluded that the Medical Panel did not comply with the requirements of s 28LL(3) of the Wrongs Act 1958 because it disregarded an impairment from an unrelated injury or cause without first making a decision based on the evidence whether that impairment was playing a part in the plaintiff’s current impairment at the time of its determination.

The plaintiff’s negligence proceeding

Mr Larman commenced a proceeding in this Court on 9 March 2022 claiming damages for alleged negligence by the second, third and fourth defendants, being Alfred Health and general practitioners, Dr Sven Strecker and Dr Vincent Cornelisse. I will often refer to those defendants collectively as ‘the defendants’. He alleged that each of them failed to undertake steps in the period February 2013 to early 2015 regarding his rectal symptoms.

The plaintiff’s statement of claim pleads that on 5 February 2013 the first defendant sent a discharge summary to the…

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 Larman v Homolka

Details

AGLC: Larman v Homolka [2024] VSC 756
Case: [2024] VSC 756
Decision Date: 5 December 2024

CaseChat Overview and Summary

Larman v Homolka was a case heard in the Victorian Court of Appeal, involving a dispute between the plaintiff, Larman, and the defendant, Homolka. Larman sought judicial review of a decision made by a Medical Panel which had assessed Larman’s degree of permanent impairment following an injury. The plaintiff alleged that the Panel had made jurisdictional errors in its assessment by failing to disregard impairment from unrelated injuries or causes, and that it had made factual errors in finding that impairment from unrelated injuries or causes was playing a part in Larman’s current impairment.
The court was required to determine whether the Panel had erred in failing to disregard impairment from unrelated injuries or causes, and whether it had erred in finding that impairment from unrelated injuries or causes was playing a part in Larman’s current impairment. The court also needed to consider whether the Panel had made any factual errors in its assessment.
The court found that the Panel had not erred in failing to disregard impairment from unrelated injuries or causes, as the relevant legislation did not require the Panel to do so. The court also found that the Panel had not erred in finding that impairment from unrelated injuries or causes was playing a part in Larman’s current impairment, as this was a matter of fact to be determined by the Panel. The court further found that the Panel had not made any factual errors in its assessment.
The final orders of the court were that the appeal be dismissed, and that the decision of the Medical Panel be upheld.

Orders