Latchford v Gibbons - [2021] VSC 229

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 00994

CHRISTINE LATCHFORD	Plaintiff
v
PETER GIBBONS (in his capacity as Deputy Convenor of Medical Panels) & Ors. (according to the attached schedule)	Defendants

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2020
DATE OF JUDGMENT:	3 May 2021
CASE MAY BE CITED AS:	Latchford v Gibbons & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 229

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ADMINISTRATIVE LAW – Judicial Review – Medical Panel - Referral of question to medical panel – Wrongs Act 1958, Part VBA - Jurisdictional error –Error arising from irregularities and deficiencies in the process of referral to panel – Failure to consider all relevant injuries identified by the plaintiff - Whether panel properly applied American Medical Association Guides to the Evaluation of Permanent Impairment – Opinion of panel not attended by error - Proceeding dismissed - Chua v Newman-Morris [2009] VSC 582 - Melbourne Health v Lloyd [2009] VSC 370 – Saddington v Kotzman [2013] VSC 196 – HJ Heinz Co Australia Ltd v Kotzman [2009] VSC 311.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. D Williams QC Mr. P Czarnota	Slater and Gordon Ltd
For the Fifth Defendant	Mr. M Fleming QC Ms. S Gold	Minter Ellison
For the Sixth Defendant	Mr. M Fleming QC Ms. S Gold	IDP Lawyers

HER HONOUR:

A Medical Panel (the Panel) was convened pursuant to s 28LWE of the Wrongs Act1958 (Vic) (the Act) to assess impairment. The plaintiff seeks orders quashing the Panel’s opinion dated 26 June 2018 and remitting the medical question to a differently constituted Medical Panel for determination.

Ms Latchford alleges that by reason of the negligent medical treatment of West Gippsland Health Care Group (the fifth defendant) and her treating surgeon, Dr Andries De Villiers (the sixth defendant) she has suffered injury and damage.

Ms Latchford underwent an arthroscopic partial lateral meniscectomy of the right knee on 28 October 2015. After discharge she developed symptoms in her right leg that were investigated by ultrasound. The investigations identified a large false aneurysm of the popliteal artery, a haematoma of the calf and an occlusive thrombus of the posterior tibial vein. Treatment of the false aneurysm required a further surgical procedure, a fasciotomy, on 1 November 2015 to avoid the development of compartment syndrome. The plaintiff has been left with ongoing symptoms and restrictions.

The referral to the Panel for an assessment of impairment was for the purpose of recovering damages for non-economic loss as required by s 28LE of the Act.

Grounds of Review

Three of the grounds of review in this proceeding, detailed below, concern errors arising out of irregularities and deficiencies in the process of referral to the Panel. The plaintiff had inadvertently failed to complete the details identifying the relevant injury to be assessed by the Panel and the defendants used forms that required them to identify relevant…

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 Latchford v Gibbons

Details

AGLC: Latchford v Gibbons [2021] VSC 229
Case: [2021] VSC 229
Decision Date: 3 May 2021

CaseChat Overview and Summary

The plaintiff sought judicial review of a decision made by a medical panel, which was constituted under the Wrongs Act 1958, Part VBA. The plaintiff argued that the panel had made a jurisdictional error in its evaluation of his claim for damages due to the failure to consider all relevant injuries identified by the plaintiff. The case was heard in the Supreme Court of Victoria.

The central legal issue was whether the medical panel had properly applied the American Medical Association Guides to the Evaluation of Permanent Impairment, and whether there were any errors in the process of referral to the panel, particularly the failure to consider all relevant injuries. The court had to determine whether the panel's opinion was attended by error, and if so, whether that error was sufficient to warrant a quashing of the panel’s decision.

The court found that the panel had not made a jurisdictional error. It held that the panel had properly applied the AMA Guides and that the process of referral to the panel was not marred by any irregularity or deficiency that would invalidate the panel’s opinion. The court emphasised that the panel had considered the relevant injuries, and any perceived omissions were not of a kind that would render the panel's opinion flawed. The proceeding was dismissed with the court finding no grounds for the quashing of the panel’s decision.

No further orders were made by the court.

Orders