Wingfoot & Anor v Kocak and the Medical Panel
The High Court heard “Kocak” yesterday in Canberra.
The case has generated interest from 2 very different groups in the law: personal injuries lawyers want to know whether medical panel opinions made in regard to statutory compensation will bind at the serious injury stage whereas administrative lawyers want to know what the standard of reasons provided by the medical panel should be and whether a failure to provided proper reasons leads to a quashing of the decision.
Just so we’re clear Kocak was argued on the following grounds of appeal:
- Did the Court of Appeal read MBC v Brown correctly when it held that it overruled Pope v Walker and stated that a medical panel opinion given in statutory compensation matters binds a court hearing a serious injury application;
- What is the standard or quality of reasons a medical panel must provide with its opinion? Mainly this was a dispute over whether the medical panel has to say why it disagrees with contrary opinions.
- If there are inadequate reasons is this enough to quash the medical panel opinion or is the proper remedy to simply order further reasons.
Having seen the Justices react to argument from both parties it seems to me that its unlikely to be a unanimous decision – though on which questions I’m not sure. Most probably the personal injuries lawyers will be happy though because it does seem likely that the HCA will find Pope v Walker survives. Both parties yesterday argued that way and they didn’t get many questions on the issue.
It may be that the Court doesn’t have to decide the last 2 questions if they decide the reasons given in this case were adequate. This is a strong possibility I think. Though having said that the issues raised by points 1 and 2 above are coming before the Court in a special leave application of Colquhuon sometime this year – so at some point the administrative lawyers will get some answers too.