Monash Health v Carina - [2024] VSC 486

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 03877

MONASH HEALTH	Plaintiff
v
SOPHIA CARINA & ORS	Defendants
(according to the attached Schedule)

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JUDGE:	Watson J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 July 2024
DATE OF JUDGMENT:	21 August 2024
CASE MAY BE CITED AS:	Monash Health v Carina & Ors
MEDIUM NEUTRAL CITATION:	[2024] VSC 486

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ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Decision of Medical Panel under Wrongs Act 1958 (Vic) Part VBA – Whether Medical Panel impermissibly assessed the claimant’s injury beyond the scope of the claim – Whether the Medical Panel impermissibly took into account secondary conditions – Whether there was evidence of a primary psychiatric injury before the Medical Panel – Whether the Medical the Panel’s decision was unreasonable or illogical – No errors found – Application dismissed – Wrongs Act 1958 (Vic) ss 28LB, 28LJ.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Hooper Ms H Daniel	Meridian Lawyers
For the First Defendant	Mr P Czarnota Mr P Santamaria	Arnold Thomas & Becker Lawyers

HIS HONOUR:

On 28 June 2023 a medical panel (‘the Panel’) determined that Ms Sophia Carina had a degree of psychiatric impairment resulting from the injury which she alleged in her claim which satisfied the threshold level specified in s 28LB of the Wrongs Act 1958 (Vic) (‘the Act’).

Monash Health seeks orders in the nature of certiorari quashing the determination made by the Panel and an order remitting the matter to a differently constituted medical panel.

For the reasons which follow, Monash Health’s application for judicial review should be dismissed.

Ms Carina’s claim

Ms Carina claims that she has suffered injury as a result of Monash Health’s negligence or its breach of an implied contractual term to provide reasonable surgical management and general medical treatment.

On 12 April 2018 Ms Carina underwent a left inguinal hernia operation at Monash Medical Centre, a hospital operated and managed by Monash Health. She says that the operation was unnecessary because there was no direct or indirect hernia and that a CT scan of the abdomen and pelvis on 27 March 2018 did not find such a hernia.

Ms Carina alleges that Monash Health was negligent in its surgical assessment, surgical management and medical treatment provided to her because it performed a left inguinal hernia operation when it should not have and because its post-operative care (including its assessment that Ms Carina was suitable for discharge from an outpatient clinic on 2 May 2018) was not adequate. The allegations which found Ms Carina’s claim in negligence are also said to constitute a breach of the implied term that Monash Health would provide reasonable surgical management and general medical treatment to Ms Carina.

Ms Carina claims that the negligence of Monash Health or its breach of the implied term have caused her injury, loss and damage.

On 1 March 2022 Ms Carina served Monash Health…

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: [2024] VSC 486
Decision Date: 21 August 2024

CaseChat Overview and Summary

The case of Monash Health versus Carina concerned a dispute over the assessment of a claimant's injury under the Wrongs Act 1958 (Vic) Part VBA by a Medical Panel. Carina, the claimant, challenged the Panel's decision, asserting that it had assessed her injury beyond the scope of the claim, taken into account secondary conditions, and failed to recognise evidence of a primary psychiatric injury. Monash Health, the respondent, defended the Panel's decision, maintaining that it was reasonable and within the scope of its authority. The matter was brought before the court for judicial review.

The court was required to determine several legal issues. Firstly, it had to ascertain whether the Medical Panel assessed Carina's injury beyond the scope of her claim. Secondly, the court needed to decide if the Panel took into account secondary conditions, which it was not permitted to do. Thirdly, it had to establish whether there was evidence of a primary psychiatric injury presented before the Panel, and finally, the court needed to consider whether the Panel's decision was unreasonable or illogical. These issues were central to the judicial review of the Panel's decision.

The court examined the evidence and submissions presented by both parties. It found that the Medical Panel's decision was within its authority and did not assess the injury beyond the scope of the claim. The court also determined that the Panel did not improperly consider secondary conditions and that there was evidence of a primary psychiatric injury before it. The court concluded that the Panel's decision was neither unreasonable nor illogical. Consequently, the court dismissed Carina's application for judicial review. The decision was based on the provisions of the Wrongs Act 1958 (Vic) sections 28LB and 28LJ.

Orders