Tan v Gibbons - [2016] VSC 652

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 05405

DR CAROLINE TAN	Plaintiff
v
ASSOC PROF PETER GIBBONS (and others according to the attached Schedule)	Defendants

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2016
DATE OF JUDGMENT:	2 November 2016
CASE MAY BE CITED AS:	Tan v Gibbons
MEDIUM NEUTRAL CITATION:	[2016] VSC 652

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JUDICIAL REVIEW – Medical negligence claim – Medical Panel’s determination as to degree of impairment – Whether finding of ‘operative fractures’ without evidentiary basis – Whether Panel misdirected itself in applying s 28LL(3) of the Wrongs Act 1958 – Jurisdictional error – Error of law on the face of the record – Statutory amendment of whole-person impairment threshold – Whether new threshold applies – Supreme Court (General Civil Procedure) Rules 2015 O 56; Wrongs Act 1958 ss 28LH, 28LL(3), 28LZG, 28LZS.

STATUTES – Interpretation – Amending legislation – Effect on proceedings when Medical Panel assessment involves jurisdictional error - Interpretation of Legislation Act 1984 s 14(2); Wrongs Amendment Act 2015 s 28 LZS (2).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr S L Keeling	Ball + Partners
For the Third Defendant	Ms M A Hartley QC with Mr D J Wallis	Nowicki Carbone

SCHEDULE OF PARTIES

S CI 2015 05405
BETWEEN:
DR CAROLINE TAN	Plaintiff
- and -
ASSOC PROF PETER GIBBONS	First Defendant
PROF GAVIN FABINYI	Second Defendant
MS ALISON WERE	Third Defendant

HIS HONOUR:

The plaintiff, Dr Caroline Tan, seeks judicial review of the determination of a Medical Panel (‘the Panel’), constituted by the first and second defendants, dated 17 August 2015[1] regarding the whole person impairment of the third defendant, Ms Alison Were, for the purposes of Part VBA of the Wrongs Act 1958 (‘the Act’).
[1]The Certificate of Determination was given pursuant to s 28LZG(2)(a) of the Wrongs Act 1958.

Ms Were had commenced proceedings in the County Court alleging negligence by Dr Tan, who is a neurosurgeon, in the performance of an operation.

The Certificate of Determination recorded the following medical question and the Panel’s answer:

Question: Does the degree of impairment resulting from the injury to [Ms Were] alleged in the claim satisfy the threshold level?
Answer: The Panel determined that the degree of whole person impairment resulting from the injury to [Ms Were] alleged in the claim does satisfy the threshold level.

Grounds of the application

The application for judicial review was brought on two grounds. For convenience, I will refer to the first ground as the ‘misdirection’ ground and the second ground as the ‘no evidence’ ground. Ms Were was not in a position to oppose the no evidence ground, for reasons which appear below. In these circumstances, the parties did not dispute that the Court should refer the question asked of the Panel for rehearing by a different Medical Panel.

However, the parties contested the misdirection ground, which raised issues of interpretation on which they submitted that…

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 Tan v Gibbons

Details

AGLC: Tan v Gibbons [2016] VSC 652
Case: [2016] VSC 652
Decision Date: 2 November 2016

CaseChat Overview and Summary

In the matter of Tan v Gibbons, the plaintiff sought judicial review of a decision made by a Medical Panel, which assessed the degree of impairment resulting from alleged medical negligence. The dispute centred around whether the Panel's determination of 'operative fractures' was supported by evidence and whether it had correctly applied section 28LL(3) of the Wrongs Act 1958. The Supreme Court was tasked with determining if the Panel had committed a jurisdictional error or made an error of law on the face of the record.

The court had to consider several legal issues, including the sufficiency of the evidence for the Panel's finding of 'operative fractures', whether the Panel misdirected itself in applying section 28LL(3) of the Wrongs Act 1958, and whether a statutory amendment concerning the whole-person impairment threshold applied to the proceedings. The court also needed to interpret the effect of amending legislation on the proceedings, particularly in light of the Wrongs Amendment Act 2015 and the Interpretation of Legislation Act 1984.

The court found that the Panel had indeed committed a jurisdictional error in its determination of 'operative fractures', as there was no evidentiary basis for this finding. Additionally, the Panel had misdirected itself in applying section 28LL(3) of the Wrongs Act 1958. The court also held that the new statutory threshold for whole-person impairment did not apply to the proceedings, as it was not retrospective in nature. Consequently, the court quashed the Panel's determination and remitted the matter for reassessment by a new panel.

The court ordered that the matter be remitted to the Medical Panel for reassessment, with specific directions to ensure that any findings of fact are supported by evidence and that the correct statutory provisions are applied. The court further directed that the reassessment take into account the statutory threshold for whole-person impairment as it existed at the time of the original assessment.

Orders