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Vicinity Centres PM Pty Ltd v Arik

Vicinity Centres PM Pty Ltd v Arik

Case [2023] VSCA 295 5 December 2023

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SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCI 2023 0040
VICINITY CENTRES PM PTY LTD	Applicant
v
MELEK ARIK & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	NIALL, KENNEDY and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2023
DATE OF JUDGMENT:	5 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 295
JUDGMENT APPEALED FROM:	[2023] VSC 94 (Richards J)

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ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Jurisdictional error – Determination by a Medical Panel of a medical question referred under Part VBA of the Wrongs Act 1958 – Medical Panel’s determination that plaintiff’s degree of impairment did not satisfy the threshold level for a ‘significant injury’ – Whether Panel’s determination ‘in accordance with’ the American Medical Association’s Guides to the Evaluation of Permanent Impairment – Whether section 3.2 of the Guides to the Evaluation of Permanent Impairment requires each measurement within a column of table 40 to be combined – Leave to appeal granted – Appeal allowed.

Wrongs Act 1958, s 28LH.

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Counsel
Applicant:	Mr J Ruskin KC with Ms FC Spencer SC
First Respondent:	Mr MJ Hooper with Ms G Angelowitsch
Second, Third and Fourth Respondents:	No appearance
Solicitors
Applicant:	HWL Ebsworth Lawyers
First Respondent:	Zaparas Lawyers
Second, Third and Fourth Respondents:	No appearance

NIALL JA
MACAULAY JA:

We would allow this appeal.
The reasons for judgment of Kennedy JA, which we have been fortunate to read in draft, set out in a comprehensive way the facts, statutory context and arguments of the parties. They enable us to come directly to the critical issue of construction.
The reasons of Kennedy JA explain how it comes to be that this Court has the role of determining the meaning to be attributed to the ‘Guides to the Evaluation of Permanent Impairment’ of the American Medical Association (‘the Guides’). It may appear incongruous that it is a court that has the job of construing a document prepared by members of the medical profession and directed to a professional medical audience. The reason lies in the fact that an entitlement to recover damages for non-economic loss depends on a plaintiff being able to establish that he or she has a ‘significant injury’. In turn, ss 28LF and 28LH of the Wrongs Act 1958 (‘the Act’) have the effect that in order to qualify as a significant injury, a medical practitioner or Medical Panel (‘Panel’) must assess the degree of impairment of the plaintiff ‘in accordance with’ the Guides. However, as we will endeavour to explain, the process of construction does not proceed as if the Guides were legislation or a legal text.
It is to be emphasised at this point that the making of an assessment of impairment by a Panel will arise in the determination by the Panel of a ‘medical question’ referred to it. In arriving at its answer to a medical question, a Panel is required to make a decision that the Act empowers it to make. That is 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 Vicinity Centres PM Pty Ltd v Arik

Details

AGLC: Vicinity Centres PM Pty Ltd v Arik [2023] VSCA 295
Case: [2023] VSCA 295
Decision Date: 5 December 2023

CaseChat Overview and Summary

Vicinity Centres PM Pty Ltd sought judicial review of a decision made by a Medical Panel under the Wrongs Act 1958. The plaintiff, Arik, alleged he sustained a significant injury due to an accident. The Medical Panel determined that Arik's degree of impairment did not meet the threshold for a ‘significant injury’. The dispute centred on the interpretation of the American Medical Association’s Guides to the Evaluation of Permanent Impairment, specifically section 3.2, in determining whether each measurement within a column of table 40 must be combined. Vicinity Centres argued that the Panel's decision was flawed, claiming it was not made 'in accordance with' the Guides. The court was tasked with determining whether the Panel's interpretation of the Guides was correct and whether the decision constituted a jurisdictional error.

The primary legal issue was whether the Medical Panel correctly applied section 3.2 of the Guides in its assessment of Arik's degree of impairment. The court had to interpret the statutory requirement that the Panel's determination be 'in accordance with' the Guides. Additionally, the court needed to decide if the Panel's decision that Arik's degree of impairment did not meet the threshold for a ‘significant injury’ was legally sound. The matter also involved the standard of review applicable to decisions made by Medical Panels under the Wrongs Act.

The court found that the Medical Panel had not correctly applied section 3.2 of the Guides. The Panel's interpretation that each measurement within a column of table 40 must be combined was inconsistent with the Guides. This misinterpretation led to a flawed assessment of Arik's degree of impairment. Consequently, the Panel's decision was not made 'in accordance with' the Guides, constituting a jurisdictional error. The court granted leave to appeal and allowed the appeal, setting aside the Panel's determination. The matter was remitted to the Medical Panel for reconsideration in light of the correct interpretation of the Guides.

The court ordered that the determination of the Medical Panel be set aside and that the matter be remitted for reconsideration in accordance with the correct interpretation of section 3.2 of the American Medical Association’s Guides to the Evaluation of Permanent Impairment.

Orders