Melton v Metro Trains Pty Ltd - [2021] VSC 450

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 01537

LEWIS MELTON	Plaintiff
v
METRO TRAINS PTY LTD	First Defendant
ASSOCIATE PROFESSOR PETER GIBBONS (CONVENOR OF MEDICAL PANELS)	Second Defendant
MEDICAL PANEL CONSTITUTED BY ASSOCIATE PROFESSOR MIRON GOLDWASSER AND DR ALAN ANDREWS	Third Defendant

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 April 2021
DATE OF JUDGMENT:	2 August 2021
CASE MAY BE CITED AS:	Melton v Metro Trains Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 450

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JUDICIAL REVIEW – Review of a decision of a Medical Panel – Part VBA of the Wrongs Act 1958 (Vic) – AMA Guides to the Evaluation of Permanent Impairment – Whether medical panel disclosed a path of reasoning – Duty of a medical panel to make inquiries – Held the medical panel erred – Remittal to a differently constituted medical panel – Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 252 CLR 480 applied – Chang v Neill [2019] VSCA 151 applied – Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 considered – Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Simone Bailey	Arnold Thomas & Becker
For the Defendant	Ms Roslyn Kaye	HWL Ebsworth Lawyers

HER HONOUR:

Background

The plaintiff, Mr Lewis Melton, injured his right leg and knee after falling on uneven ground at Rosanna Railway Station on 13 May 2017. X-rays taken at Austin Hospital confirmed that Mr Melton had suffered a comminuted spiral fracture of the proximal right fibula and an oblique fracture of the lower right tibial shaft. Surgery was undertaken to treat the tibial fracture.

Mr Melton commenced a County Court proceeding against Metro Trains Pty Ltd for damages and both economic and non-economic loss pursuant to the Wrongs Act 1958 (Vic) (Act) and common law.

To receive compensation for non-economic loss under the Act, a person must be assessed to have suffered “significant injury”.[1] An injury is deemed “significant” if the degree of whole person impairment resulting from the injury meets the threshold level.[2] The Act defines the relevant threshold level as impairment of more than 5 per cent.[3] The Act also defines impairment as permanent impairment.[4]
[1]Wrongs Act 1958 (Vic) s 28LE (‘Wrongs Act’).
[2]Ibid s 28LF(a).
[3]Ibid s 28LB (definition of ‘threshold level’ para (a)).
[4]Ibid (definition of ‘impairment’).

Mr Douglas Gardiner, an orthopaedic surgeon, assessed Mr Melton in line with the AMA Guides to the Evaluation of Permanent Impairment (4^th edition) (Guides). Mr Gardiner provided a Certificate of Impairment and considered that Mr Melton’s impairment level was 10 per cent. Mr Gardiner noted:

Painful scarring on the front of the right knee preventing kneeling and restricting squatting due to sensitivity with limitation in the performance of employment and daily living with constant avoidance and padding to this area…

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.

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Details

Case: [2021] VSC 450
Decision Date: 2 August 2021

CaseChat Overview and Summary

In the case of Melton v Metro Trains Pty Ltd, the applicant sought judicial review of a decision made by a medical panel assessing his permanent impairment under Part VBA of the Wrongs Act 1958 (Vic). The applicant argued that the panel did not properly consider the AMA Guides to the Evaluation of Permanent Impairment, resulting in an incorrect assessment of his impairment. The medical panel, which was constituted under the relevant legislation, had determined that the applicant's impairment was less severe than he claimed, affecting the compensation he was entitled to receive.

The primary legal issue before the court was whether the medical panel had disclosed a path of reasoning that led to its decision, and whether it had fulfilled its duty to make necessary inquiries. The applicant contended that the panel's decision was flawed because it did not adequately address the relevant guidelines and failed to make proper inquiries into the applicant's condition. The court had to determine whether these errors were sufficient to warrant the quashing of the panel's decision and whether the case should be remitted to a differently constituted panel.

The court found that the medical panel had indeed erred in its reasoning and decision-making process. It was held that the panel had not disclosed a path of reasoning that was consistent with the AMA Guides, and had failed to make proper inquiries into the applicant's condition. The court found that the errors were significant enough to warrant the quashing of the panel's decision and the case being remitted to a differently constituted panel. The decision in Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 252 CLR 480 was applied, as was the decision in Chang v Neill [2019] VSCA 151. The court also considered the principles in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 and Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22.

The final orders of the court were that the decision of the medical panel be quashed, and the case be remitted to a differently constituted medical panel for reconsideration in accordance with the law. The applicant's application for judicial review was therefore successful, and the case was to be re-assessed by a new panel to ensure that the AMA Guides and proper inquiry duties were properly considered.

Orders