Mitchell v Latrobe Regional Hospital - [2016] VSCA 342

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0137

GARY MITCHELL	Applicant
v
LATROBE REGIONAL HOSPITAL	Respondent

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JUDGES:	OSBORN and BEACH JJA, J FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 November 2016
DATE OF JUDGMENT:	21 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 342

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TORTS – Statutory construction – Significant injury threshold – Threshold level – Psychiatric injury – Amendment to definition of ‘threshold level’ – Psychiatric injury impairment of 10 per cent or more – Applicability of new definition of ‘threshold level’ to proceedings on foot at time of amendment – Wrongs Act 1958 pt VBA.

STATUTES – Statutory construction – Amendment – Amendment of statute – Transitional provision – Whether amendment had retrospective operation – Whether any right acquired or accrued under an earlier version of the statute – Whether amendment had any affect upon previous operation of the statute or anything duly done under earlier statutory provision – Whether contrary intention expressly appeared – Wrongs Act 1958 ss 28LB, 28LF, 28LZH and 28LZS – Interpretation of Legislation Act 1984 s 14(2).

WORDS AND PHRASES – Meaning of ‘unless the contrary intention expressly appears’ – Meaning of ‘expressly’ – Interpretation of Legislation Act 1984 s 14(2).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M F Wheelahan QC with Mr J A G McComish	Nowicke Carbone
For the Respondent	Mr S A O’Meara QC with Mr S E Gladman	DLA Piper Australia

OSBORN JA
BEACH JA
J FORREST AJA:

Introduction

This referral from a County Court judge raises an important point about the application of the significant injury provisions contained in pt VBA of the Wrongs Act 1958 (‘the Act’).

Enacted in 2003, pt VBA established a ‘significant injury’ threshold (based on the Australian Medical Association (‘AMA’) Guides) for claims for non-economic loss. In October 2015, Parliament, acting upon the recommendations contained in a report of the Victorian Competition & Efficiency Commission (‘VCEC’), amended the Act and relaxed the threshold. In particular, and relevant to this application, it altered the threshold for psychiatric injury from ‘more than 10 per cent’ to ’10 per cent or more’.[1]
[1]Wrongs Amendment Act 2015 s 4 (‘the Amending Act’).

The point raised by the referral is whether a certificate of determination issued prior to the amendment by a medical panel which stated that a claimant did not meet the threshold, is effective in barring a claim for non-economic loss in a proceeding that will be heard and determined subsequent to the amendment.

For the reasons set out below, we think it is not.

Facts

The following was either agreed or not in issue:

(a)Mr Gary Mitchell was a patient at Latrobe Regional Hospital (‘Latrobe’) in April 2013.
(b)In Mr Mitchell’s County Court proceeding issued in June 2015, he alleges that he suffered injury as a result of his negligent treatment at Latrobe and claims damages for non-economic loss as well as medical and like expenses.
(c)Latrobe denies liability to Mr Mitchell.
(d)In June 2015, Mr…

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: [2016] VSCA 342
Decision Date: 21 December 2016

CaseChat Overview and Summary

In Mitchell v Latrobe Regional Hospital, the appellant sought to establish that his psychiatric injury met the threshold for a significant injury under the Wrongs Act 1958. The respondent hospital contested this, arguing that a legislative amendment to the definition of 'threshold level' should not apply to the appellant's case, which was already in progress at the time of the amendment. The matter was before the Supreme Court of Victoria to determine the applicability of the amended definition to the appellant’s claim.

The legal issues at hand revolved around the interpretation and application of the amended statutory provisions. Specifically, the court had to determine whether the legislative amendment to the definition of 'threshold level' had any retrospective effect on cases already proceeding under the old provisions. The appellant contended that the new definition should apply, while the hospital argued that the amendment did not have retrospective effect and should not alter the conditions of the appellant’s claim.

The court examined the statutory language and the principles of statutory interpretation, particularly the requirement that a statute be construed so as to give effect to the presumed intention of parliament unless the contrary intention expressly appeared. The court found that the statutory language did not expressly indicate that the amendment should have retrospective effect. It was held that the amendment did not apply to cases that were already in progress at the time of its enactment, and thus the old definition of 'threshold level' continued to apply to the appellant’s case.

Consequently, the court ruled that the appellant's claim was not subject to the new statutory definition of 'threshold level', and the case proceeded under the former definition. The court's decision was grounded in the principle that, in the absence of an express contrary intention, legislative amendments should not be applied retrospectively. The court's interpretation of the statutory language and its application of the principles of statutory construction led to the conclusion that the hospital's argument was upheld, and the appellant's claim was assessed under the old statutory provisions.

Orders