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Lingenberg v Gallichio

Lingenberg v Gallichio

Case [2013] VSCA 143 14 June 2013

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0059
STEVEN JOHN LINGENBERG	Applicant
v
DR ANTHONY GALLICHIO & ORS	Respondents

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JUDGES	NETTLE and NEAVE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	7 June 2013
DATE OF JUDGMENT	14 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 143
JUDGMENT APPEALED FROM	[2013] VSC 207 (Kyrou J)

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ACCIDENT COMPENSATION – Assessment of impairment – Cervicothoracic spinal impairment – Aggravation of pre-existing anchylosing spondylitis resulting in total restriction of neck mobility – Assessment by Medical Panel pursuant to s 104B(2) of Accident Compensation Act 1985 (‘ACA’) and American Medical Association Guides to the Evaluation of Permanent Impairment (‘the Guides’) – Assessment of nil impairment – Nil assessment in accordance with s 3.3f(9) of Guides – Whether application of s 3.3f(9) of Guides precluded by s 91(7)(c) of ACA – AMA Guides to the Evaluation of Permanent Impairment (4^th Ed), ss 3.3e, 3.3f (5), 3.3f(9); Accident Compensation Act 1985, ss 91(1), 91(7)(c), 104B(2).

ADMINISTRATIVE LAW – Certiorari – Appeal from refusal of order in nature of certiorari to quash Medical Panel Opinion – Jurisdictional error – Error of law on face of record – Application for leave to appeal allowed and appeal treated as instituted and heard instanter and allowed – Supreme Court (General Civil Procedure) Rules 2005, Order 56.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr R P Gorton QC with Mr G B Wicks	Slater & Gordon
For the 4^th Respondent	Mr M F Fleming SC with Ms R N Annesley	Herbert Geer

NETTLE JA

NEAVE JA:

This is an application for leave to appeal from an order of a judge of the Common Law Division refusing an application for an order in the nature of certiorari to quash a determination of a Medical Panel pursuant to s 104B(2) of the Accident Compensation Act 1985.

Preliminary issue

There is a preliminary issue as to whether leave to appeal is required. It arises because this court has expressed different views on different occasions on whether a refusal to grant relief in the nature of certiorari is an interlocutory order.

In Victoria Legal Aid v County Court[1] the court held that an order refusing relief in the nature of certiorari is an interlocutory order because it does not finally determine rights. Chernov JA[2] (with whom Warren CJ and Dodds-Streeton AJA concurred) followed an earlier decision of the Full Court in Monash University v Berg[3] to that effect and also the reasoning of the New South Wales Court of Appeal in Coles v Wood[4] that, because the jurisdiction to grant prerogative relief is discretionary, the refusal of relief does not determine finally or otherwise the rights of any party.
[1](2004) 9 VR 686.
[2]Ibid 690 [8]-[9].
[3][1984] VR 383, 385-6 (Starke, Murphy and Marks JJ).
[4][1981] 1 NSWLR 723, 725 (Moffit P) and 727 (Hutley JA).

To the contrary, however, in Applicants A1 & A2 v Brouwer,[5] the court…

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 Lingenberg v Gallichio

Details

AGLC: and Steven John Lingenberg v Dr Anthony Gallichio [2013] VSCA 143
Case: [2013] VSCA 143
Decision Date: 14 June 2013

CaseChat Overview and Summary

In the case of Lingenberg v Gallichio, the dispute arose from an assessment of impairment following an accident. The plaintiff, Lingenberg, sought compensation for injuries sustained in the accident which exacerbated pre-existing anchylosing spondylitis, leading to total restriction of neck mobility. The defendant, Gallichio, was responsible for assessing the impairment in accordance with the provisions of the Accident Compensation Act 1985. The Medical Panel, pursuant to section 104B(2) of the ACA, applied the American Medical Association Guides to the Evaluation of Permanent Impairment ('the Guides') and assessed the plaintiff's impairment as nil.

The primary legal issues before the court were whether the application of section 3.3f(9) of the Guides was precluded by section 91(7)(c) of the ACA, and whether the assessment of nil impairment was correct. Specifically, the court needed to determine if the plaintiff’s condition met the criteria outlined in section 3.3f(9) of the Guides, which provides for a nil impairment rating in cases of total restriction of neck mobility, and whether this application was consistent with the legislative framework provided by the ACA.

The court held that the application of section 3.3f(9) of the Guides was not precluded by section 91(7)(c) of the ACA. It found that the Medical Panel's assessment of nil impairment was in accordance with the Guides and was therefore valid. The court concluded that the plaintiff's condition of total restriction of neck mobility, resulting from the aggravation of anchylosing spondylitis, appropriately fell within the criteria for a nil impairment rating under the Guides. The court dismissed the plaintiff's application for leave to appeal and confirmed the assessment made by the Medical Panel.

Orders