Mikhman v Royal Victorian Aero Club & Ors [2012] VSC 42

Before an injured party can claim for damages for personal injury under the Wrongs Act 1958 (Vic) (“the Act”) the injured party must establish that their level of impairment satisfies the required injury threshold. Where the parties to the dispute cannot agree to the level of impairment, a Medical Panel (“the Panel”) is constituted to independently assess the injured party.

In Mikhman v Royal Victorian Aero Club & Ors [2012] VSC 42, the plaintiff had obtained a report from her psychiatrist that she had suffered psychological injuries above the required injury threshold as a result of witnessing a plane crash to the ground with fatal consequences only metres from her and her family. The Royal Victorian Aero Club disputed the psychiatrist’s assessment. Consequently, the Panel assessed her injuries and found, contrary to the assessments of the treating psychiatrist, she did not satisfy the threshold level of impairment required by statute.

The plaintiff appealed the decision and alleged that the Panel erred in:

  1. failing to make its determination within 30 days, as required by section 28LZG(3)(a) of the Act; and
  2. taking into account irrelevant considerations and/or failing to take into account relevant considerations.

The Court quashed the decision and referred the matter back for determination by a differently constituted panel.

Determination made out of time

Section 28LZG(3)(a) of the Act provides that once the Panel has examined the relevant party, it must issue a certificate of determination within 30  days unless the parties have consented to a late determination. The Court held that this was a mandatory provision and a condition of the Panel in exercising its jurisdiction.

As the Panel took 53 days to issue the determination without consent the Court found that the Panel had exceeded its jurisdiction and the determination was therefore invalid.

Irrelevant and Relevant Considerations

The Court found that the Panel had not taken into account irrelevant considerations and it had not failed to take into account relevant considerations. This did not impact on the final decision that the Panel did not have jurisdiction to make a determination.

What this means

This decision provides claimants with a possible avenue to appeal an unsatisfactory determination made by a Panel where that determination was made out of time. However, whether such an appeal should be pursued will depend on the likelihood that a differently constituted Panel would reach a different conclusion as to the level of the claimant’s impairment.

In any case, it is expected that the Panel will review its procedures to ensure that all future determinations are made within the statutory time frame.

*The Royal Victorian Aero Club has now appealed the decision of the Supreme Court and this may impact the finding of the trial judge. We will keep you advised of developments*

This article provides information that is general in nature and not a substitute for legal advice. Please contact Rudstein Kron Lawyers f you wish to obtain legal advice for your personal situation or to find out more about topics covered in this article.