Williams v Coles Supermarkets Aust Pty Ltd - [2017] VSC 318

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 05743

MELINDA WILLIAMS	Plaintiff
v
COLES SUPERMARKETS AUST PTY LTD	First Defendant
ASSOCIATE PROFESSOR PETER GIBBONS (Deputy Convenor of Medical Panels)	Second Defendant
MEDICAL PANEL (constituted by MR JOHN BOURKE & MR ROY CAREY)	Third Defendant
BEVENDALE PTY LTD	Fourth Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF JUDGMENT:	6 June 2017 (on the papers)
CASE MAY BE CITED AS:	Williams v Coles Supermarkets Aust Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VSC 318

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JUDICIAL REVIEW — Medical Panel — Threshold for non-economic claim — Amendment to threshold — Retrospective effect — Panel applied wrong threshold — Opinion quashed — Remitted for redetermination — Wrongs Act 1958 Part VBA; Wrongs Amendment Act 2015 s 11.

COSTS — Defendant adopting a Hardiman approach during proceeding— Cost consequences

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Arnold Thomas & Becker
For the First Defendant	Colin Biggers & Paisley
For the Second and Third Defendants	Moray & Agnew
For the Fourth Defendant	HWL Ebsworth Lawyers

HIS HONOUR:

The plaintiff, on 18 December 2013, commenced an action in the County Court of Victoria against the first and fourth defendants (‘the primary proceeding’). That proceeding included a claim for non-economic loss which is subject to the provisions of Part VBA of the Wrongs Act 1958 (‘the Wrongs Act’).[1] The plaintiff, the first and fourth defendants, whom I shall describe as ‘the parties’,[2] filed a ‘joint memorandum on resolution of judicial review application’.
[1]The facts set out in this judgment are taken from the joint memorandum on resolution of judicial review application, the written submissions of the first and fourth defendants and the affidavit of the fourth defendant’s solicitor.
[2]The second and third defendants adopted a Hardiman stance: R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

The fourth defendant on 23 December 2014 referred the plaintiff to the Medical Panel for determination of a medical question as to whether she met the threshold for claiming damages for non-economic loss under Part VBA of the Wrongs Act. The first defendant subsequently referred the plaintiff to the Medical Panel for the same purpose and the two referrals were consolidated on 29 January 2015.

The Medical Panel on 5 May 2015 determined that the plaintiff did not meet the threshold for claiming non-economic loss damages under Part VBA of the Wrongs Act. The plaintiff then commenced this proceeding to seek judicial review of the Medical Panel’s determination.

On 21 December 2016, the Court of Appeal in Mitchell v Latrobe Regional Hospital[3] found that the new thresholds for claiming general damages inserted into s 28LB of the Wrongs Act by s 11 of the Wrongs Amendment Act 2015 had retrospective effect. The decision applied even in circumstances where a medical panel had made a determination based on the old thresholds. The Medical Panel’s determination had referred to an old…

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.

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Details

Case: [2017] VSC 318
Decision Date: 6 June 2017 (on the papers)

CaseChat Overview and Summary

The case of Williams v Coles Supermarkets Aust Pty Ltd involved a dispute regarding a claim for non-economic loss following an injury. The plaintiff sought review of a decision made by a Medical Panel. The matter was heard in the County Court of Victoria. The plaintiff, Williams, argued that the Panel had applied the wrong threshold for non-economic claims, having retrospectively applied a new statutory threshold that was not in effect at the time of the incident. The new threshold was introduced by the Wrongs Amendment Act 2015, which had been passed after the incident in question.

The primary legal issue before the court was whether the Panel had correctly applied the relevant threshold for non-economic loss claims. Specifically, the court had to determine whether the Panel should have applied the threshold as it existed at the time of the incident or the amended threshold introduced by the 2015 Act. The court also considered the appropriate approach to costs in light of the defendant’s conduct throughout the proceedings.

In determining the matter, the court found that the Panel had indeed applied the wrong threshold in assessing the plaintiff's claim for non-economic loss. The court noted that the retrospective application of the amended threshold was not justified and quashed the Panel’s opinion. The court remitted the matter back to the Panel for redetermination under the correct threshold. The court also addressed the costs, finding that the defendant's adoption of a Hardiman approach during the proceedings warranted the imposition of costs in favour of the plaintiff.

The final orders of the court included quashing the Panel’s opinion, remitting the matter for redetermination under the correct threshold, and ordering the defendant to pay the plaintiff's costs in accordance with the Hardiman principles.

Orders