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Amendments to the Wrongs Act: are previous Medical Panel determinations still binding?

Newsletter Article 03 May 2016

In Victoria, a litigant in medical negligence proceedings cannot claim damages for non-economic loss caused by an injury unless the injury satisfies the ‘threshold level’ specified by the Wrongs Act 1958 (Vic).

The ‘threshold level’ for psychiatric injuries was recently amended by the Wrongs Amendment Act 2015 (Vic) (the amending Act) from ‘more than 10 per cent’ to ‘10 per cent or more’ whole person impairment. This has the effect of lowering the threshold so that a litigant with a psychiatric condition satisfying a ten per cent whole person impairment can now claim damages for non-economic loss. This Act commenced on 19 November 2015.

In Stapleton v Central Club Hotel & Ors [2016] VCC 91, the court was asked to determine whether the amending Act enabled a litigant to obtain a new assessment of her psychiatric condition when she had previously been assisted by the Medical Panel as not having a psychiatric injury that satisfied the threshold level.

Background

On 27 November 2010, Ms Stapleton sustained an injury to her right knee when she fell at the Central Club Hotel in Richmond. She initially consulted a surgeon, who referred her to hospital. A surgical procedure to her right knee was performed. Ms Stapleton alleges that she was still under the effects of the anaesthetic from the procedure when she was inappropriately mobilised, causing her to fall and suffer further injuries.  Among the injuries claimed was a psychiatric injury.

Ms Stapleton issued proceedings against the Central Club Hotel, the surgeon and the hospital.

During the course of the proceedings, the plaintiff served a Certificate of Impairment on the defendants from Dr Michael Epstein, Psychiatrist, dated 29 August 2012. This certificate certified Ms Stapleton’s degree of whole person impairment resulting from her alleged psychiatric injury as more than 10 per cent, thus satisfying the threshold level for damages for non-economic loss. 

The defendants referred Ms Stapleton to the Medical Panel for assessment. On 13 October 2015, the Medical Panel determined that Ms Stapleton’s degree of whole person impairment caused by her psychiatric condition was not more than ten per cent whole person impairment, thus it did not satisfy the threshold level. Pursuant to section 28LZH of the Wrongs Act, the determination of the Medical Panel must be accepted by the court and thus Ms Stapleton was not entitled to claim damages for non-economic loss. 

On 21 January 2016, following the commencement of the amending Act, Ms Stapleton obtained a second certificate from Dr Epstein, which certified her psychiatric injury as ten per cent or more whole person impairment.  The plaintiff served this certificate on the defendants.
 
Issue to be determined

The defendants did not consider the second certificate to be valid in circumstances where the Medical Panel had assessed the plaintiff and issued a finding that was binding on the court. The parties asked the County Court of Victoria to provide an answer to the following question:

‘Does the assessment made in the Further Certificate, that the plaintiff has a degree of impairment resulting from her Psychiatric Injury that satisfies the threshold level, have effect pursuant to s28LF(2)(a) of the Wrongs Act such that the plaintiff is taken to have suffered a significant injury for the purposes of the Act?’

Decision

Judge Saccardo of the County Court found for the defendants and reasoned that the application of the provisions of the amending Act to the Medical Panel determination that was already in existence would involve statutory retrospectivity.

Judge Saccardo stated that pursuant to section 14(2) of the Interpretation of Legislation Act 1984, the amending Act should not be interpreted as having retrospective application unless it demonstrates an express intention to do so. Since the amending Act stipulates that it applies irrespective of the date of the injury and irrespective of when proceedings were commenced, but is silent in relation to previous Medical Panel determinations, His Honour concluded that there is no express intention that the act should have retrospective application.

Judge Saccardo ruled that the Medical Panel determination in this instance, that the psychiatric injury did not meet the threshold, continues to have effect and the plaintiff cannot claim damages for non-economic loss.

Impact

The outcome of this case will provide some comfort to defendants, as it confirms that the amendments to the Wrongs Act will not affect the binding nature of previous determinations of the Medical Panel.


John Petts, Partner
Melbourne

Beth Altson, Associate
Melbourne

Newsletter Article 03 May 2016
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