Skarbek v Brand - [2023] VSC 346

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 04267

NIKKI SKARBEK	Plaintiff
v
DR CAROLINE BRAND	First Defendant
ASSOCIATE PROFESSOR MICHAEL MURPHY	Second Defendant
EPWORTH FOUNDATION	Third Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2023
DATE OF JUDGMENT:	22 June 2023
CASE MAY BE CITED AS:	Skarbek v Brand
MEDIUM NEUTRAL CITATION:	[2023] VSC 346

JUDICIAL REVIEW --- Medical Panel – Medical Panel finding of no significant injury – Whether the Panel made a jurisdictional error - Whether Panel failed to assess plaintiff’s impairment in accordance with AMA Guides – Whether the plaintiff’s claim of a history of guarding was a mandatory consideration -Whether Panel failed to have regard to that consideration – Wrongs Act 1958 s 28LH.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Katz	Polaris Lawyers
For the Third Defendant	Mr M Fleming KC with Ms S Gold	Minter Ellison

HIS HONOUR:

Background

The plaintiff seeks judicial review of a Medical Panel’s opinion that her degree of whole person impairment resulting from an injury did not satisfy the threshold level under the Wrongs Act 1958. She argued that the Panel committed a jurisdictional error by failing to properly assess her impairment in accordance with the AMA Guides (‘Guides’).

The plaintiff’s cervical spine was injured on 25 May 2017 during a hospital procedure at the Freemason’s/Epworth Hospital for the surgical extraction of her wisdom teeth. The head attachment of the operating table detached while she was under general anaesthetic, causing her neck to hyperextend. She was then aged 25.

The plaintiff’s grounds

The plaintiff contended that the Medical Panel committed an error of law on the face of the record or jurisdictional error by:

(a)Failing to comply with Sections 28LZG(1) and 28LH of the Wrongs Act 1958 and/or failing to properly construe and/or act in conformity with the AMA 4^th Edition Guidelines (‘AMA Guides’), including the methodologies, processes and criteria set out, in particular, Sections 3.3f and 3.3h, and Table 73 and Chapter 3 in assessing her cervicothoracic spine impairment;
(b)Failing to have regard to relevant mandatory considerations, being the descriptions and verification criteria for DRE I, and DRE II under the Injury Model, and erroneously proceeding to assess the Plaintiff’s impairment as falling within the DRE I category, in circumstances where there was evidence before the Panel of a history of guarding which was a mandatory consideration which the Panel failed to consider;
(c)Failing to properly consider and apply, or engage in an active intellectual process with, the history of guarding as a differentiator, and/or the Range of Motion Model as a differentiator or the applicable method to determine the Plaintiff’s cervicothoracic spine whole person impairment level, in accordance with Section 3.3f AMA Guides, in circumstances where the Plaintiff’s impairment could not be placed into category DRE I.

The Medical Panel issued its Certificate of Determination under s 28LZG(2)(a) of the Act in response to…

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 Skarbek v Brand

Details

AGLC: Skarbek v Brand [2023] VSC 346
Case: [2023] VSC 346
Decision Date: 22 June 2023

CaseChat Overview and Summary

The matter of Skarbek v Brand was heard in the Supreme Court of Victoria, where the plaintiff, Skarbek, sought judicial review of a decision by a Medical Panel that there was no significant injury. The plaintiff argued that the Panel erred in its assessment of his impairment, particularly contending that the Panel did not adhere to the Australian Medical Association (AMA) Guides and failed to consider his history of guarding as a mandatory factor. The defendant, Brand, maintained that the Panel’s decision was sound and properly considered the evidence presented.

The primary legal issues before the court were whether the Panel had made a jurisdictional error in its assessment of the plaintiff’s impairment, specifically whether it failed to comply with the AMA Guides, and whether it improperly disregarded the plaintiff’s history of guarding. The court had to determine whether these alleged errors were such that they rendered the Panel's decision unjustifiable. Additionally, the court considered whether the failure to assess the plaintiff’s impairment in accordance with the AMA Guides constituted a jurisdictional error, and whether the Panel's alleged failure to consider the plaintiff’s history of guarding was mandatory under the Wrongs Act 1958 s 28LH.

The Supreme Court examined the Panel’s decision-making process and found that the Panel did not make a jurisdictional error. The court held that the Panel had appropriately assessed the plaintiff’s impairment, taking into account the AMA Guides and the evidence presented. The court further found that the plaintiff’s history of guarding, while relevant, was not a mandatory consideration that required explicit mention. The Panel's failure to explicitly address this factor did not amount to a jurisdictional error, as it had nonetheless considered the plaintiff’s overall condition and evidence in making its decision.

As a result, the court dismissed the plaintiff’s application for judicial review. The Panel’s decision that there was no significant injury was upheld. The court determined that the Panel’s assessment process was lawful and that any perceived omissions did not constitute a jurisdictional error under the applicable statutory provisions.

Orders