Troeth v Cerberus Catering Pty Ltd - [2022] VSC 767

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03409

MARGARET ANNE TROETH	Plaintiff
v
CERBERUS CATERING PTY LTD (ACN 144 901 575)	First Defendant
and
ASSOCIATE PROFESSOR PETER GIBBONS (Convenor of Medical Panels)	Second Defendant
and
MEDICAL PANEL CONSTITUTED BY DR ALAN ANDREWS, PROFESSOR CASSANDRA SZOEKE and MR BRIAN COSTELLO	Third Defendants

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 November 2022
DATE OF JUDGMENT:	15 December 2022
CASE MAY BE CITED AS:	Troeth v Cerberus Catering Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 767

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ADMINISTRATIVE LAW – Judicial review – Opinion of medical panel that whole person impairment resulting from injury to the claimant alleged in the claim did not satisfy the threshold level – Plaintiff suffered injuries in an incident in which she fell down stairs at a restaurant – Subsequent treatment and rehabilitation – Extent of persisting symptoms, including dizziness and associated episodes of loss of consciousness – Assessment of mental status and integrative functioning – Section 4.1b of the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment – Claimed jurisdictional error and/or error on the face of the record, legal unreasonableness and/or failure to enquire – Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17, Chang v Neill (2019) 62 VR 174, Sidiqi v Kotsios [2021] VSCA 187, Schmael v Leach [2020] VSC 562 , Edwards v State of Victoria [2021] VSC 423 and CD v Central Gippsland Health Service [2022] VSC 462 – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	JP Brett KC with LBR Allan	Arnold Thomas & Becker Lawyers
For the First Defendant	RL Kaye SC	Hall & Wilcox
For the Second and Third Defendants	No appearance	Victorian Government Solicitor’s Office

HIS HONOUR:

A Introduction

The plaintiff was born on 27 July 1950. In September 2017, she was working in modified duties as a bar and gaming room attendant.

On 29 September 2017, she was at the Cerberus Restaurant in Black Rock and fell down a flight of stairs after losing her balance (‘the incident’).

The plaintiff lost consciousness and was conveyed to the Alfred Hospital by ambulance. She was semi-conscious for approximately two weeks and was placed in a high dependency unit before being transferred to the ward. After she regained normal consciousness, she was transferred to Caulfield Rehabilitation Hospital.

As a result of the incident, the plaintiff makes the following claims of injury –

•        traumatic bilateral sub-arachnoid haematomas and haemorrhage;
•        right subdural haemorrhage and right temporal contusion;
•        fracture to the left temporal bones;
•        fractures to the left posterior third, fourth and fifth ribs;
•        left clavicle fracture;
•        right partial fourth cranial nerve palsy;
•        traumatic brain injury;
•        vertigo;
•        persisting neck pain and tension headaches; and
•        consequential psychological injuries.

In the course of her rehabilitation, the plaintiff complained of symptoms…

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 Troeth v Cerberus Catering Pty Ltd

Details

AGLC: Troeth v Cerberus Catering Pty Ltd [2022] VSC 767
Case: [2022] VSC 767
Decision Date: 15 December 2022

CaseChat Overview and Summary

The plaintiff, Troeth, sought judicial review of a decision made by a medical panel which concluded that the whole person impairment resulting from her injury did not meet the threshold level for compensation. The incident occurred when Troeth fell down stairs at a restaurant owned by the defendant, Cerberus Catering Pty Ltd. Troeth's claim was based on the extent of her persisting symptoms, including dizziness and episodes of loss of consciousness, following the fall. The dispute centred on the assessment of her mental status and integrative functioning, with reference to section 4.1b of the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment.

The court was required to determine whether the medical panel's decision contained a jurisdictional error, an error on the face of the record, was legally unreasonable, or if there was a failure to enquire into relevant matters. The plaintiff argued that the panel's assessment was flawed and did not properly consider her ongoing symptoms and their impact on her life. The court considered several precedent cases, including Ryan v The Grange at Wodonga Pty Ltd, Chang v Neill, Sidiqi v Kotsios, Schmael v Leach, Edwards v State of Victoria, and CD v Central Gippsland Health Service, to assess the standard of review and the criteria for judicial intervention.

The court found that the medical panel's decision was not legally unreasonable and did not contain any jurisdictional error or failure to enquire into relevant matters. The panel had considered the plaintiff's evidence and symptoms, and had applied the appropriate legal and medical standards in making its determination. The court held that the panel's decision was within the range of reasonable outcomes and that there was no basis for judicial review. Accordingly, the proceeding was dismissed.

The court made no orders for costs.

Orders