Masterton v Coles Supermarkets - [2013] VSC 498

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW & APPEALS LIST

No. S CI 2013 01543

DEBRA MASTERTON	Plaintiff
v
COLES SUPERMARKETS AUSTRALIA PTY LTD DR JOHN MALIOS (Convenor of Medical Panels) MEDICAL PANEL (Constituted by Dr Diane Neill, Associate Professor Evange Romas and Mr John Bourke)	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2013
DATE OF JUDGMENT:	18 September 2013
CASE MAY BE CITED AS:	Masterton v Coles Supermarkets & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 498

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ADMINISTRATIVE LAW – Judicial review – Review of medical panel – Error of law on the face of the record – Whether error of law – Reasons – Whether reasons disclose failure to take relevant matter into account – Wrongs Act 1958, Part VBA.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A.G. Uren QC	Melbourne Injury Lawyers Pty Ltd
For the First Defendant	Mr M.F. Fleming SC with Mr R. Kumar	Richard Mole & Associates
For the Second and Third Defendants	No appearance	Moray & Agnew

HIS HONOUR:

Introduction

The plaintiff alleges she suffered injury on 29 October 2009 when she slipped on something that had been spilled onto the floor of a Coles Supermarket in Port Melbourne. In order to recover damages for non-economic loss from the first defendant, the plaintiff must satisfy the “significant injury” requirements of Part VBA of the Wrongs Act 1958 (“the Act”).

On 14 September 2012, Mr M.A. Khan, an orthopaedic surgeon, completed a “Certificate of assessment of degree of impairment arising from stabilised injury” in respect of the plaintiff pursuant to s 28LN of the Act. In the certificate of assessment, Mr Khan certified that the degree of permanent impairment resulting from the plaintiff’s injury was more than 5%. Physical injury giving rise to a permanent impairment assessed, in accordance with the provisions of Part VBA of the Act, as being more than 5%, satisfies the significant injury requirements of the Act.

On 9 November 2012, pursuant to s 28LT of the Act, the plaintiff’s solicitors served on the first defendant the certificate of assessment and the information prescribed by regulation 6 of the Wrongs (Part VBA Claims) Regulations 2005. The first defendant disputed, and disputes, the plaintiff’s assessment.

On 15 November 2012, the first defendant, pursuant to s 28LWE of the Act, referred the following medical question to a medical panel:

Does the degree of impairment resulting from the injury to the claimant alleged in the claim satisfy the threshold level?[1]

[1]The expression “threshold level” is relevantly defined in s 28LB, for physical injury, to mean “impairment (itself defined to mean “permanent impairment”) of more than 5 per cent”.

A medical panel (the third defendant) was convened by the Convenor of Medical Panels (the second defendant). After conducting examinations on 17 and 22 January 2013, the medical panel answered the medical question as follows:

The panel determined that the degree of whole person impairment resulting from the physical injury…

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 Masterton v Coles Supermarkets

Details

AGLC: Masterton v Coles Supermarkets [2013] VSC 498
Case: [2013] VSC 498
Decision Date: 18 September 2013

CaseChat Overview and Summary

The case of Masterton v Coles Supermarkets involved the applicant seeking judicial review of a decision made by a medical panel under the Wrongs Act 1958. The applicant, Masterton, contested the panel's determination, claiming it was an error of law. The Supreme Court of Victoria was tasked with examining the nature of the review and the grounds for the applicant's claim.

The central legal issue revolved around whether the error of law claimed by Masterton was apparent on the face of the record. The applicant argued that the medical panel had failed to consider a relevant matter, which constituted an error of law. This required the court to determine if the reasons provided by the panel disclosed a failure to take into account a relevant consideration. The court had to assess whether the panel's decision-making process was flawed and if the omission was significant enough to warrant judicial intervention.

The court examined the reasons provided by the medical panel and found that they were comprehensive and adequately addressed the issues before the panel. The court concluded that there was no failure to take a relevant matter into account and that the decision did not manifest an error of law. The reasoning given by the panel was deemed sufficient, and the court found no basis for the applicant's claim of error on the face of the record. Consequently, the court dismissed the application for judicial review.

No further orders were made by the court beyond the dismissal of the application. The decision reinforced the principle that judicial review is a narrow process, and the court will only intervene where there is a clear error of law apparent on the face of the record. In this instance, the court found that the medical panel's decision-making process was not flawed and therefore upheld the panel's determination.

Orders