McIntyre v Fish - [2015] VSC 82

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 02520

GLENYS YVONNE McINTYRE	Plaintiff
v
DR DAVID FISH AND OTHERS	Defendants

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2015
DATE OF JUDGMENT:	11 March 2015
CASE MAY BE CITED AS:	McIntyre v Fish and ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 82

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ADMINISTRATIVE LAW – Judicial review – Order 56 Supreme Court (General Civil Procedure) Rule 2005 – Medical panel – Whether the medical panel’s reasons for decision were adequate – Accident Compensation Act 1985 ss 65, 68 – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Schilling	Nevin Lenne Gross
For the Sixth and Seventh Defendants	Mr M F Fleming QC with Ms F C Spencer	Wisewould Mahony

HER HONOUR:

Introduction and summary

This is an application for review under order 56 of the Supreme Court (General Civil Procedure) Rules 2005 of an opinion of the first to fifth defendants (‘the Panel’) concerning an injury to the plaintiff’s cervical spine during the course of her employment as a kitchen hand/childcare worker with the sixth defendant, Rural City of Wangaratta (‘City of Wangaratta’) (‘the injury’).

The opinion is dated 26 March 2014 (‘Opinion’) and was accompanied by a statement of reasons for the Opinion (‘Reasons’). The Opinion answered three medical questions (‘medical questions’) as follows:

Question 1: What is the nature of the Plaintiff’s medical condition relevant to the claimed injuries, namely:
·production, aggravation, acceleration and exacerbation of cervical disc disease;
·spondylosis at C5/6 and C6/7;
·at C3/4 marked narrowing of the disks with grade 1 spondylolisthesis requiring C3/4 anterior cervical discectomy and fusion;
·radiculapathy;
·progressive neurological disturbances of the upper limbs including paraesthesia and numbness of hands and fingers bilaterally?

Answer: The Panel is of the opinion that the Plaintiff is suffering from constitutional cervical spondylitic myelopathy with hyperreflexia, but this medical condition is not relevant to any claimed injury.
Question 2: Does the plaintiff have:

(a) a capacity to undertake the duties outlined in the signed position description dated 8 September 2011;

(b) current work capacity;

(c) no current capacity?

Answer:        The Panel is of the opinion the Plaintiff has no present inability to return to her pre‑injury employment arising from an injury.
Question 3:    If the Plaintiff has an incapacity for work does the incapacity for work result from or is it materially contributed to by any and which of the claimed injuries?
Answer:        Not applicable.

The plaintiff seeks an order quashing the Opinion on the ground that the Panel provided inadequate reasons for the Opinion and an order in the nature of mandamus remitting the medical questions, in respect of which the Opinion was given to a medical panel to be determined in accordance with the law.

The sole ground of review in the plaintiff’s further amended originating motion filed 19 February 2015 is as follows:

In determining its opinion the Medical Panel committed an error of law on the face…

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 McIntyre v Fish

Details

AGLC: McIntyre v Fish [2015] VSC 82
Case: [2015] VSC 82
Decision Date: 11 March 2015

CaseChat Overview and Summary

McIntyre, the plaintiff, sought judicial review of a decision by a medical panel to refuse to list his medical practitioner as an approved medical practitioner under the Accident Compensation Act 1985. The dispute was heard in the Supreme Court. The primary issue before the court was whether the reasons provided by the medical panel for refusing to list the plaintiff's medical practitioner were adequate and whether the panel had considered all relevant material.

The court examined the requirements of Order 56 of the Supreme Court (General Civil Procedure) Rules 2005, which outline the procedures for judicial review. The court also considered relevant provisions of the Accident Compensation Act 1985, specifically sections 65 and 68, which pertain to the process for listing medical practitioners as approved. The court concluded that the panel's reasons were adequate and that the panel had properly considered all relevant material. As such, the plaintiff's application for judicial review was dismissed.

The court held that the medical panel's reasons for refusing to list the plaintiff's medical practitioner were sufficient. The panel had considered all relevant material and provided adequate reasons for their decision. The court also noted that the plaintiff had not demonstrated that the panel had acted irrationally or failed to consider relevant material. As such, the plaintiff's application for judicial review was refused. The court did not make any orders as the plaintiff's application was dismissed.

Orders