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McDONALD v IRUNGU

McDONALD v IRUNGU

Case [2015] VSC 689 3 December 2015

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 01184

LYNNE McDONALD	Plaintiff
v
BOB IRUNGU & ORS	Defendants

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 DECEMBER 2015
DATE OF RULING:	3 DECEMBER 2015
CASE MAY BE CITED AS:	McDONALD v IRUNGU & ORS
MEDIUM NEUTRAL CITATION:	[2015] VSC 689

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JUDICIAL REVIEW – Order 56, Supreme Court (General Civil Procedure) Rules 2005 (Vic) – s 28LZG(3), Wrongs Act 1958 (Vic) – Medical panel – Failure to make determination within 30 day period – Determination set aside – Exercise of costs discretion where not appropriate to order costs against medical panel and where contradicting defendant adopted a passive role in the proceeding – Costs order made against contradicting defendant – Indemnity certificate granted under s 4, Appeal Costs Act, 1998 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A S Pillay	Slater & Gordon
For the First Defendant	Ms M Fitzgerald	Avant Law Pty Ltd
For the Second, Third and Fourth Defendants	Ms D Costaras	Moray & Agnew

HIS HONOUR:

The plaintiff seeks judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) in relation to a certificate and determination of a medical panel dated 16 January 2014 answering one medical question and assessing the degree of psychiatric impairment of the plaintiff to be permanent and not more than 10%.

The plaintiff seeks damages from the first defendant, a surgeon. The second and third defendants constituted the medical panel and the fourth defendant is the convenor of medical panels.

The defendants did not contradict the plaintiff’s affidavit and made no submissions on the substantive issue of the plaintiff’s entitlement to quash the decision. The second to fourth defendants adopted the ‘Hardiman position’.[1] The defendants only addressed me in relation to costs.
[1]Ex parte Hardiman (1980) 144 CLR 13.

For the reasons that follow, I will quash the certificate and determination of the medical panel and remit the medical question to a medical panel to be convened in accordance with the Wrongs Act 1958 (Vic). I will further order that the first defendant pay the plaintiff’s costs, that otherwise there be no order as to costs, and that the first defendant be granted an indemnity certificate under s 4(1) of the Appeal Costs Act 1998.

The plaintiff’s mother died at Gippsland Base Hospital on 18 February 2008 as a result of hypovolaemic shock from excessive blood loss following surgery allegedly performed negligently at the Bairnsdale Hospital on 18 February 2008 by the first defendant. The plaintiff claims that the first defendant breached a duty of care he owed to her that caused her to suffer a psychiatric injury. By a report dated 5 February 2013, Professor Lorraine Dennerstein certified that the plaintiff suffered major depressive disorder and that her degree of psychiatric impairment was permanent and greater than 10%.[2]
[2]Professor Dennerstein’s report and…

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 McDONALD v IRUNGU

Details

AGLC: McDonald v Irungu [2015] VSC 689
Case: [2015] VSC 689
Decision Date: 3 DECEMBER 2015

CaseChat Overview and Summary

In the case of McDonald v Irungu, the plaintiff sought judicial review of a decision by a medical panel, established under the Wrongs Act 1958 (Vic), to delay making a determination on a matter related to medical malpractice. The Supreme Court of Victoria was tasked with assessing the legality of the delay and determining appropriate remedies.

The primary legal issue was whether the medical panel's failure to make a determination within the prescribed 30-day period was unlawful and warranted judicial intervention. Additionally, the court had to determine the appropriate exercise of its discretion regarding costs, given that ordering costs against the medical panel was not deemed suitable, while the defendant had adopted a passive role in the proceedings.

The court found that the medical panel's delay in making a determination was indeed unlawful. Consequently, the determination was set aside. Regarding costs, the court exercised its discretion to make a costs order against the defendant, who had taken a passive approach in the litigation. The court also granted an indemnity certificate under section 4 of the Appeal Costs Act 1998 (Vic) to ensure the defendant's protection against costs associated with the appeal.

The final orders included setting aside the medical panel's determination, directing the medical panel to make a new determination within a specified timeframe, and making a costs order against the defendant. The indemnity certificate was granted to protect the defendant from costs associated with the appeal.

Orders