Alcoa Holdings Ltd v Lowthian

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

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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

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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.

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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 4^th 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’…