Melbourne Health v Lloyd - [2009] VSC 370

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS

No. 6246 of 2009

MELBOURNE HEALTH, DR PETER GREENBERG and DR BRENDAN HOLWILL	Plaintiffs
and
DR JOHN LLOYD, DR CAROLYN ARNOLD and DR JUDITH FRAYNE constituting the Medical Panel pursuant to the Wrongs Act 1958	First Defendant
and
SUSAN JANE CURRIE	Second Defendant

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JUDGE:	PAGONE J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2009
DATE OF JUDGMENT	31 August 2009
CASE MAY BE CITED AS:	Melbourne Health v Dr John Lloyd & Ors
MEDIUM NEUTRAL CITATION:	[2009] VSC 370

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Part VBA Wrongs Act 1958 (Vic) – Whether panel identified injury caused by another person – Whether medical question to the panel clearly identified the injury.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Dr K. Hanscombe SC with R. Harper	Middletons
For the First Defendant	D. Masel	Monahan & Rowell
For the Second Defendant	M. O’Loghlen QC with M. Fleming	Arnold Thomas and Becker

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HIS HONOUR:

The plaintiffs in this proceeding seek to quash a determination made on 27 February 2009 by the first defendants (“the medical panel”). The determination was made pursuant to Part VBA of the Wrongs Act 1958 (Vic) (“the Act”) in response to a referral of a question for determination pursuant to s 28LZG of the Act. The plaintiffs contended that the medical panel misconstrued and misapplied the operative terms of the Act and also that they failed to provide adequate reasons for their determination.

The plaintiffs’ challenge to the determination by the medical panel was fundamentally that the determination had failed to identify a potentially compensable injury. The second defendant, Ms Susan Currie, has issued other proceedings in this Court in which she alleges that the plaintiffs to the present proceeding were negligent in the treatment they provided to her by failing to diagnose, and to provide to her proper treatment for, porphyria. Ms Currie claims general and special damages in those proceedings resulting from the negligence she alleges. Section 28LE, however, restricts her ability to recover damages for non‑economic loss in any proceeding in respect of an injury caused by the fault of another person unless she can establish that she has suffered “significant injury”. Section 28LF(1)(b) provides that an injury is a “significant injury” for the purposes of Part VBA, including the purposes of s 28LE, if a medical panel has determined under Division 5 that “the degree of impairment of the whole person resulting from the injury satisfies the threshold level”.

The question referred to the medical panel was whether the degree of impairment resulting from the injury to the claimant alleged in the claim satisfied the threshold level. The claim was not in the terms of the claim alleged in the other proceedings but as set out in a letter of claim which had been written on her behalf to the plaintiffs. It was that claim which the solicitors for the first plaintiff (“Melbourne…

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 Melbourne Health v Lloyd

Details

AGLC: Melbourne Health v Lloyd [2009] VSC 370
Case: [2009] VSC 370
Decision Date: 31 August 2009

CaseChat Overview and Summary

In Melbourne Health v Lloyd, the respondent, Lloyd, sought judicial review of a decision made by the appellant, Melbourne Health, regarding his eligibility for compensation under the Wrongs Act 1958 (Vic). The dispute centred on whether Lloyd's injury was caused by a negligent act, and if the medical panel correctly identified that the injury was caused by a separate person. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the medical panel's decision was legally sound in identifying that Lloyd's injury was caused by an independent person, rather than by Melbourne Health. The court was tasked with determining if the medical question posed to the panel was sufficiently clear to enable the panel to properly assess the cause of Lloyd's injury. Additionally, the court had to consider whether the medical panel's decision was reasonable and whether the panel correctly applied the statutory criteria.

The court found that the medical question provided to the panel was not sufficiently clear, and as a result, the panel could not accurately determine the cause of Lloyd's injury. The court held that the medical panel had not properly considered whether Lloyd's injury was caused by Melbourne Health or another party. Consequently, the court determined that the medical panel's decision was unreasonable and quashed it. The matter was remitted back to Melbourne Health for reassessment in light of the court's findings.

The court's final orders were that the decision of the medical panel be quashed, and the matter remitted to Melbourne Health for reassessment in accordance with the court's findings. The court did not make any orders regarding costs.

Orders