O'Connell v Munoz Pty Ltd - [2022] VSC 129

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 00088

CINDY O’CONNELL	Plaintiff
v
MUNOZ PTY LTD AND	Defendant
and
MR JOHN BOURKE	Second Defendant
and
PROF GEOFFREY LITTLEJOHN	Third Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2022
DATE OF JUDGMENT:	18 March 2022
CASE MAY BE CITED AS:	O’Connell v Munoz Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 129

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ADMINISTRATIVE LAW – Judicial review – Opinion of Medical Panel that degree of whole person impairment resulting from physical injury to the claimant does not satisfy the threshold level – Whether Panel erred in assessing pre-existing and/or subsequent impairments – Permanent impairment – Whether panel erred in considering bladder dysfunction – Procedural fairness – Wrongs Act 1958 (Vic), s 28LL(3) – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	AG Uren QC with RD Kumar	Arnold Thomas & Becker
For the Defendant	FC Spencer	Wotton + Kearney
For the Second and Third Defendants	No appearance	Russell Kennedy

HIS HONOUR:

A Introduction

The plaintiff alleges that on 25 March 2019 she suffered injury when she tripped over an uneven roller skating surface and ran into a barrier at the Sunshine Roller Skating Centre.

On 3 June 2020, Dr David Kennedy, sports and industrial physician, certified that the degree of impairment resulting from the plaintiff’s injury was more than 5%.[1]
[1]CB66-67.

The first defendant referred to a medical panel the question of whether the degree of impairment resulting from physical injury to the plaintiff satisfied the ‘threshold level’ identified in the Wrongs Act 1958 (Vic) (the Act).

On 21 October 2020, the plaintiff was interviewed and examined by the Panel, comprising Mr John Bourke, orthopaedic surgeon, and Professor Geoffrey Littlejohn, rheumatologist.

On 16 November 2020, the Panel answered the medical question as follows –

The Panel determined that the degree of whole person impairment resulting from the physical injury to the claimant (Ms O’Connell) alleged in the claim does not satisfy the threshold level.[2]

[2]CB4.

In its reasons for determination,[3] the Panel referred to –
[3]CB5-10.

(a) the plaintiff’s claim that she had sustained physical injuries to the lumbar spine, neck, hip joint, left leg and right leg in the incident on 25 March 2019;

(b) the plaintiff’s account of the incident;

(c) the plaintiff’s account of subsequent treatment, radiological investigations, impaired mobility and use of medications;

(d) the plaintiff’s account of an incident ‘four months ago’ where she had been sitting on a toybox and suffered five minutes of paralysis and a left leg that was still numb;

(e) the plaintiff’s account of her ‘past low back history’ going back some 34 years, including treatment by a physiotherapist on 21 March 2019 after sleeping on a ‘bad mattress’;

(f) current history and treatment, including ‘stress and urge incontinence of bladder function’;

(g) a physical examination that, among other things, revealed no wasting of the lower limbs; and

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'Connell v Munoz Pty Ltd

Details

AGLC: O'Connell v Munoz Pty Ltd [2022] VSC 129
Case: [2022] VSC 129
Decision Date: 18 March 2022

CaseChat Overview and Summary

In the matter of O'Connell v Munoz Pty Ltd, the plaintiff sought judicial review of a decision made by a Medical Panel under the Wrongs Act 1958 (Vic) regarding the degree of whole person impairment resulting from a physical injury sustained by the plaintiff. The plaintiff argued that the Panel had erred in assessing the pre-existing and subsequent impairments, particularly in relation to bladder dysfunction, and had failed to comply with procedural fairness requirements. The case was heard in the Supreme Court of Victoria.

The court was tasked with determining whether the Panel had erred in its assessment of the plaintiff's impairments and whether the Panel had complied with the requirements of procedural fairness. The primary focus was on whether the Panel appropriately considered the pre-existing and subsequent impairments, including the bladder dysfunction, and whether the Panel had applied the correct legal principles in making its decision.

The court found that the Panel had not erred in its assessment of the plaintiff's impairments. The Panel had considered the relevant evidence and applied the correct legal principles in determining the degree of whole person impairment. The court also found that the Panel had complied with the requirements of procedural fairness, including providing the plaintiff with an opportunity to be heard and to respond to the evidence and arguments presented. The application for judicial review was dismissed, and the decision of the Panel was upheld.

The court's final orders included dismissing the plaintiff's application for judicial review and upholding the decision of the Medical Panel. The court did not make any further orders in relation to costs or any other matters.

Orders