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O'Brien v Brand

O'Brien v Brand

Case [2017] VSC 596 20 October 2017

Judicial Review

Admissibility of Evidence

Breach of Contract

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 01453

NICHOLAS JOSEF O’BRIEN	Plaintiff
v
DR CAROLINE BRAND, DR JOHN BARTLETT, MR PETER FIELD and MR RUSSELL CORLETT Constituting the Medical Panel Pursuant to the Wrongs Act 1958 (Vic)	First Defendants
SCOTT GEOFFREY ROBBINS	Second Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September 2017
DATE OF JUDGMENT:	20 October 2017
CASE MAY BE CITED AS:	O’Brien v Brand & ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 596

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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Part VBA of the Wrongs Act 1958 (Vic) – Availability of ‘illogical or irrational’ ground of review – Alleged misapplication of the AMA Guides to the Evaluation of Permanent Impairment (‘Guides’) – Admissibility of expert evidence not before the Medical Panel.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Harper	Vardalis & Associates
No appearance for the First Defendant	Moray & Agnew
No appearance for the Second Defendant	DLA Piper Australia

HER HONOUR:

This is an application for review of a determination of the first defendant (‘Medical Panel’) to the effect that the degree of impairment to the plaintiff, Mr O’Brien, failed to satisfy the threshold level of impairment resulting from a physical injury established under the Wrongs Act 1958 (Vic) (‘Act’), being more than five per cent[1] permanent impairment. As noted by Dixon J in Moore v Barton,[2] the statutory provisions and legal administrative law principles governing the functions, procedures and obligations of medical panels have been the subject of numerous decisions of this Court and the Court of Appeal, and do not need to be reproduced here, particularly given that there is a pending hearing in a proceeding in the County Court of Victoria (‘County Court proceeding’). A useful summary of the principles concerning a number of grounds of review is to be found in the recent decision of Keogh J in Stojilkovic v Romas & ors,[3] and the decision of Kyrou J (as he then was) at first instance in Ryan v Grange at Wodonga Pty Ltd & ors.[4]
[1]Section 28LB of the Act. The Medical Panel was constituted by Dr Caroline Brand (rheumatologist), Dr John Bartlett (orthopaedic surgeon), Mr Peter Field (vascular surgeon) and Mr Russell Corlett (plastic surgeon).
[2][2014] VSC 78 [21].
[3][2017] VSC 49. The decision was reversed on appeal (see [2015] VSCA 17), but the correctness of Kyrou J’s statement of the relevant legal principles was not disturbed.
[4][2014] VSC 135.

Mr O’Brien issued the County Court proceeding on 3 September 2015, seeking damages against the second defendant, a physiotherapist, alleging that the second defendant caused physical injury to him as a result of negligent physiotherapy management and advice.

The claim by the plaintiff against the second defendant in the County Court proceeding is summarised in an affidavit sworn in this proceeding by his solicitor, Mr David Elston, on 21…

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 O'Brien v Brand

Details

AGLC: O'Brien v Brand [2017] VSC 596
Case: [2017] VSC 596
Decision Date: 20 October 2017

CaseChat Overview and Summary

In the case of O'Brien v Brand, the applicant, O'Brien, sought judicial review of a decision made by the respondent, Brand, who was a member of a medical panel established under Part VBA of the Wrongs Act 1958 (Vic). The dispute centred on the alleged misapplication of the AMA Guides to the Evaluation of Permanent Impairment by the Medical Panel in determining the applicant’s degree of impairment. The matter was heard in the Supreme Court of Victoria.

The primary legal issue the court needed to address was whether the ground of 'illogical or irrational' decision-making could be applied to the Medical Panel's decision. Specifically, the court had to determine if the Panel's reliance on the AMA Guides constituted an illogical or irrational application of the guidelines. Additionally, the court considered the admissibility of expert evidence that was not presented to the Panel during its assessment.

The court held that the Medical Panel's application of the AMA Guides was not illogical or irrational, as it was consistent with the guidelines and the evidence available at the time. The court found that the Panel's decision-making process was rational and did not warrant judicial intervention on the basis of illogicality or irrationality. Furthermore, the court ruled that the expert evidence presented post-decision was not admissible as it was not before the Panel during its original assessment. The court concluded that the Panel's decision was valid and should stand.

The Supreme Court dismissed the application for judicial review, confirming the Medical Panel’s decision. No further orders were made.

Orders