Alcoa Holdings Ltd v Lowthian

Link copied
Case Copied 39 min read
IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 2010 of 04661

ALCOA HOLDINGS LIMITED & ANOR Plaintiff
v
PETER LOWTHIAN & ORS  First, Second and Third Defendants
and
JOHN DE HAAS Fourth Defendant

---

JUDGE:

J FORREST J

WHERE HELD:

Melbourne

DATE OF HEARING:

9 June 2011

DATE OF JUDGMENT:

24 June 2011

CASE MAY BE CITED AS:

Alcoa Holdings Ltd & v Lowthian & ors and De Haas

MEDIA NEUTRAL CITATION:

[2011] VSC 245

Amended 1 July 2011

---

ADMINISTRATIVE LAW – Judicial review – Determination of Medical Panel – Sections 91, 104B of the Accident Compensation Act – Pre-existing impairment – Apportionment of impairment resulting from pre-existing impairment – Unrelated injuries or causes.

---

APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr M Fleming SC with
Mr J Wallace
Sparke Helmore
For the First, Second and Third Defendants No appearance Monahan & Rowell
For the Fourth Defendant Ms M Schilling Clark Toop & Taylor

HIS HONOUR:

Introduction

  1. On 5 August 2008, Mr John De Haas, the fourth defendant sustained an injury to his lower back in the course of his work with the plaintiff, Alcoa.  He lodged an application for compensation pursuant to the Accident Compensation Act 1985 (Vic).[1]

    [1]“the Act”.

  1. Alcoa accepted liability for his injury,[2] but there was a dispute as to the resultant degree of impairment.  Ultimately Mr De Haas’ claim for a lump sum benefit necessitated an impairment assessment which ended up before a Medical Panel comprised of the second and third defendants, Mr Pianta, an orthopaedic surgeon, and Dr Francis Gallichio, a general practitioner.  The first defendant, Dr Lowthian, was the convenor of the Panel.

    [2]“the compensable injury”.

  1. The Panel determined that Mr De Haas had sustained a 5% whole person impairment.

  1. The issue that arises is whether the Panel lawfully arrived at this conclusion.  The Panel was obliged to apply the provisions of the AMA Guides,[3] as modified by the Act in determining Mr De Haas’ impairment.  The gravamen of the complaint by Alcoa relates to the Panel’s approach to Mr De Haas’ acknowledged pre-existing back disability (i.e. before the work incident) which, it concluded, was aggravated by the compensable injury.  The Panel, whilst accepting the existence of the pre-existing condition, determined that it should not take it into account in formulating its impairment assessment.  Alcoa says that it was required to do so by both the provisions of the Guides and the Act itself.

    [3]“the Guides”.  Australian Medical Association Guides to the Evaluation of Permanent Impairment 4th edition

  1. Alcoa also contends that the Panel disregarded the medical opinion of Mr Michael Troy of 2 May 2005, which it was bound to take into account.

  1. Alcoa says that on each of these bases the Panel fell into jurisdictional error and its decision should be quashed.

The factual background

  1. Mr De Haas commenced work at Alcoa in September 1980 as an ingot mill operator.  On his own account this was “quite a physical job”.[4]

    [4]Mr De Haas’…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Alcoa Holdings Ltd v Lowthian and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2011] VSC 245
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Alcoa Holdings Ltd brought a judicial review application against Lowthian, seeking to overturn a decision made by a Medical Panel under the Accident Compensation Act. The dispute centred on the Panel’s determination regarding the apportionment of impairment caused by a pre-existing condition, as well as the impact of unrelated injuries on the assessment of compensation. The applicant argued that the Panel erred in law by improperly considering the unrelated injuries in its assessment.

The primary legal issues before the court were whether the Medical Panel correctly interpreted the relevant sections of the Accident Compensation Act when making its determination and whether the Panel's decision was legally sound. Specifically, the court had to determine if the Panel was correct in apportioning the impairment resulting from the pre-existing condition and if it was appropriate to consider the unrelated injuries in its assessment.

The court found that the Panel had made an error in its interpretation of the Act, leading to an incorrect application of the law. The Panel had improperly considered the unrelated injuries in its apportionment of impairment, which was not in accordance with the statutory framework. The court quashed the Panel’s opinion and remitted the medical questions to a differently constituted Panel for reconsideration in line with the statutory requirements. Additionally, the court dismissed the summons filed by the fourth defendant.

Orders

Orders of the court

(a that the Panel’s opinion be quashed.

(b) that the medical questions be remitted to a differently constituted Panel to be convened in accordance with the Act.

(c) that the fourth defendants summons dated 2 June 2011 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.