Law firm wins right to challenge medical panel findings

Cases

Law firm wins right to challenge medical panel findings

The High Court (five-member bench) found the decision of a Vic medical panel was open to challenge in relation to the impairment of a former employee of a law firm who launched a negligence action, in which she claimed she had suffered injury, including psychiatric injury, as result of employer’s negligence.

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The High Court (five-member bench) found the decision of a Vic medical panel was open to challenge in relation to the impairment of a former employee of a law firm who launched a negligence action, in which she claimed she had suffered injury, including psychiatric injury, as result of employer’s negligence.
 
 
The plaintiff made the claim against employer pursuant to s98C of the Vic Accident Compensation Act 1985 for compensation for non-economic loss. Pursuant to s104B(9) of the Act, Victorian WorkCover Authority referred questions to the medical panel about the extent of the plaintiff’s impairment. As a result of the medical panel finding, the plaintiff was deemed to have a ‘serious injury’ for purposes of the Act. As entitled under s134AB(2) of the Act, the plaintiff commenced common law proceedings against the employer for damages. Section 68(4) of the Act provided that ‘[f]or the purposes of determining any question or matter’, the opinion of the medical panel was to be applied by ‘any court, body or person’.
 
In pleadings, the employer denied the plaintiff had suffered injury, loss and damage.
 
The question
 
The question before the court was whether the employer was precluded by operation of the Act from making that and other contentions in evidence or argument. The legal question was whether the employer was so precluded as a matter of issue estoppel.
 
The respondent to this appeal (‘the plaintiff-employee’) was a salaried partner employed by the appellant firm in its legal practice in Melbourne. In 2007, the plaintiff commenced proceedings against the employer in the County Court of Victoria claiming damages for personal injuries she alleged she had suffered as a result of the employer’s negligence. She alleged that between January and November 2003 she had been ‘systematically undermined, harassed and humiliated’ by a fellow employee, despite complaints and requests for intervention made to the employer’s managing partner, and that, as a result, she had suffered injury, including psychiatric injury.
 
The central issue in the appeal to this Court is whether, as the Court of Appeal of the Supreme Court of Victoria held (Brumar (Vic) Pty Ltd v Norris; Brown v Maurice Blackburn Cashman [2010] VSCA 206) the employer is precluded by operation of the Vic Accident Compensation Act 1985 from making certain contentions in evidence or argument in the plaintiff’s action in the County Court or is estopped from making those contentions as a matter of issue estoppel.
 
High Court ruling
 
The High Court found that both the issue decided by the Court of Appeal and the issue raised by the notice of contention should be resolved in the employer’s favour. The employer is not precluded in the manner alleged by the plaintiff, whether by the Act or as a matter of issue estoppel. The appeal should be allowed.
 
The High Court concluded:
‘The appeal to this Court should be allowed. The Court of Appeal’s order answering the questions reserved for its opinion should be set aside. In place of that order there should be an order that the questions reserved be answered as follows:
Question 1: Do any, and if so which, of the estoppels pleaded in paragraph 1A(i) of the plaintiff’s amended reply to amended defence arise?
 
Answer: No.
 
Question 2: Is this honourable court obliged to accept as final and conclusive in any trial of this action, any, and if so which, of the matters pleaded by the plaintiff at paragraph 1B(a) and (b) of her amended reply to amended defence?
 
Answer: No.
 
Question 3: Is the defendant precluded from acting in any, and if so which, of the ways claimed by the plaintiff in paragraph 1B(c) of her amended reply to amended defence?
 
Answer: No.
In accordance with the undertaking given at the time of the grant of special leave, the appellant should pay the respondent’s costs of the appeal to this Court …
 
The conclusions reached with respect to the construction and application of s 68(4) entail the further conclusion that no issue estoppel arises out of the opinions expressed by a Medical Panel under s 104B(9) in an action later brought by a worker against the worker’s employer …’
The case was returned to the County Court.
 
 
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