Pickett v Parks Victoria - [2018] VSC 473

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 03862

NATALIE PICKETT	Plaintiff
v
PARKS VICTORIA	First Defendant
APTESO PTY LTD	Second Defendant
ASSOCIATE PROFESSOR PETER GIBBONS (CONVENER OF MEDICAL PANELS)	Third Defendant
MEDICAL PANEL CONSTITUTED BY DR DAVID KOTZMAN and MR KEITH ELSNER	Fourth Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2018
DATE OF JUDGMENT:	24 August 2018
CASE MAY BE CITED AS:	Pickett v Parks Victoria & Ors
MEDIUM NEUTRAL CITATION:	[2018] VSC 473

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ADMINISTRATIVE LAW – Judicial Review of a Medical Panel decision – Jurisdictional error – Alleged misapplication of the AMA Guides to the Evaluation of Permanent Impairment (4th edition) – Whether the panel failed to take into account a relevant consideration – Wrongs Act 1958 (Vic) Pt VBA – Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 – HJ Heinz Company Australia Limited & Anor v Kotzman & Ors [2009] VSC 311 (31 July 2009) – Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors (2013) 252 CLR 480.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Ingram with Ms C Moore	Arnold Thomas & Becker
For the First and Second Defendants	Mr D Masel SC with Ms R Kaye	Moray & Agnew
For the Third and Fourth Defendants	No appearance

HIS HONOUR:

The plaintiff alleges that she injured her right ankle when she slipped and fell while descending a wet boardwalk in a national park. She wishes to recover damages for the injury from the first defendant, Parks Victoria, and the second defendant, Apteso Pty Ltd (‘Apteso’). Part VBA of the Wrongs Act 1958 (Vic) (‘Wrongs Act’) provides that the plaintiff is not entitled to recover damages for non-economic loss unless she has suffered a significant injury.

The question of significant injury, which involved assessment of the degree of impairment resulting from injury to the plaintiff, was referred to the fourth defendant (‘the panel’). The panel, which was required to make the assessment in accordance with the AMA Guides to the Evaluation of Permanent Impairment (4^th edition) (‘the Guides’), determined that the degree of whole person impairment resulting from the plaintiff’s injury did not satisfy the threshold level for significant injury. The plaintiff has applied to review the panel’s determination on the following grounds:

(a) the panel failed to exercise its statutory function in determining that it could complete its assessment of the plaintiff’s level of impairment in accordance with the Guides without the need for additional medical imaging and thereby failed to assess an arthritis impairment based on roentgenographically[1] determined cartilage intervals pursuant to table 62 p 3/83 of the Guides; and

(b) the medical panel failed to take into account a relevant consideration, namely an arthritis impairment based on roentgenographically determined cartilage interval in accordance with table 62 p 3/83 of the Guides.

[1]A roentgenogram is an x-ray image.

The third and fourth defendants did…

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 Pickett v Parks Victoria

Details

AGLC: Pickett v Parks Victoria [2018] VSC 473
Case: [2018] VSC 473
Decision Date: 24 August 2018

CaseChat Overview and Summary

The plaintiff, Pickett, sought judicial review of a decision by a medical panel appointed by Parks Victoria, contesting the panel's assessment of his permanent impairment under the AMA Guides to the Evaluation of Permanent Impairment (4th edition). The case was heard in the Supreme Court of Victoria. The primary contention was whether the panel had erred in its application of the AMA Guides, specifically if it failed to consider relevant factors impacting Pickett's impairment assessment.

The court was tasked with determining whether the panel's decision was tainted by a jurisdictional error, particularly if it had misapplied the AMA Guides or omitted to consider relevant factors. This involved a detailed examination of the panel's methodology and the extent to which it adhered to the guidelines. The court also considered whether the panel's failure to take into account certain considerations amounted to a jurisdictional error under the Wrongs Act 1958 (Vic) Pt VBA, drawing on precedents such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd and Heinz Company Australia Limited & Anor v Kotzman & Ors. Additionally, the case Wingfoot Australia Partners Pty Ltd & Anor v Kocak & Ors was pertinent in understanding the scope of judicial review in such contexts.

The court concluded that the panel had indeed erred in its application of the AMA Guides, as it had failed to consider relevant factors that could have affected the impairment assessment. This constituted a jurisdictional error, warranting the quashing of the panel's decision. The court's reasoning was grounded in the statutory framework and judicial precedents, which underscored the necessity for a correct application of the AMA Guides and the inclusion of all relevant considerations. Consequently, the court allowed Pickett's application for judicial review and quashed the decision of the medical panel.

In light of the findings, the court ordered that the decision of the medical panel be quashed and remitted for reconsideration, ensuring that all relevant factors and the correct application of the AMA Guides were taken into account. This ruling underscored the importance of meticulous adherence to guidelines and consideration of all relevant factors in impairment assessments conducted by medical panels.

Orders