By: Jonathan Maher and Ben Kelly

At a glance

• The Claimant issued a judicial review application to challenge the Medical Panel’s decision that his knee impairment stemmed from pre-existing conditions, not a fall.
• The Victorian Supreme Court upheld the Panel’s decision, rejecting the Claimant’s argument that section 28LL(3) of the Wrongs Act 1958 (Vic) contains two ‘tests’.
• The case reinforces the importance of expertise in the often-complex law around Medical Panel determinations.

Wotton Kearney acted for the operator of a Victorian shopping centre in successfully defending an application for judicial review of a Medical Panel determination.

Background

The Claimant alleged he sustained a left knee injury after tripping at a shopping centre in Melbourne in 2021.

He served the operator of the centre with a Certificate of Assessment pursuant to the Wrongs Act 1958 (Vic) (the Act) that stated that his injuries met the threshold to entitle him to claim general damages in his action.

However, Wotton Kearney recommended that the operator refer the Claimant to the Medical Panel, and in August 2023 the Panel handed down a determination finding that the Claimant’s injuries did not meet the threshold. Critically, the Claimant had a significant history of issues with that knee, including having undergone a knee replacement, and in fact had been in hospital only a few months prior to his trip as a result of an infection in his prosthesis.

The Panel determined that, although the Claimant was suffering from persistent left knee dysfunction, this was a consequence of his pre-existing issues, not the incident. Pursuant to section 28LL(3) of the Act, the Panel was obliged to disregard any impairment it believed was caused by the Claimant’s previous issues. The Claimant otherwise had no impairment from the incident alone that met the relevant threshold.

Application for judicial review

The Claimant issued an application for judicial review of the Panel’s decision in the Victorian Supreme Court.

In summary, his primary argument was that:

• section 28LL(3) does confirm that when the Panel is assessing the degree of impairment arising from an incident “… impairments from unrelated injuries or causes are to be disregarded’. However, it also requires the Panel to assess not just injuries that were caused by the incident, but also injuries related to the incident, a broader test,
• in this case, the Claimant suffered direct soft tissue injuries to his left knee when he tripped, but also various ‘consequential injuries’ that were ‘related’ to the incident, such as swelling, infection, bone growth and so forth,
• in essence, section 28LL(3) contains two tests and “each must be looked at”, however in this case the Panel “only applied half the test” and therefore fell into jurisdictional error.

On behalf of the shopping centre operator and Medical Panel itself, we argued that the Claimant’s case was misconceived and that the Panel had correctly applied both the legislation and the case law.

Supreme Court decision

On 26 September 2024 His Honour O’Meara J dismissed the Claimant’s application.

He found that there was no compelling evidence (or authority) to suggest that section 28LL(3) should be taken to state two “tests”, noting that “to say that an impairment is ‘resulting from’ a claimed injury is to do no more than state a straightforward relationship of cause (claimed injury) and effect (degree of whole person impairment)”.

His Honour found that the Panel had directed itself to the appropriate analysis and applied reasoning (and reached a conclusion) that did not misconstrue or fail to comply with any relevant provision in the Act.

Implications

Although the facts and issues in this case were unique, the decision provides useful confirmation of the approach to be taken by the Medical Panel when assessing a claimant’s degree of whole person impairment.

It also provides a reminder for defendants and insurers to continue to carefully analyse the often-complex rules and procedures to be applied by the Panel in order to identify potential errors or, alternatively, to be able to defend challenges to the Panel’s decisions, as in this case.