Ayana v Qantas Airways Ltd - [2021] VSC 500

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 00663

BELEMA AYANA	Plaintiff
v
QANTAS AIRWAYS LTD (ACN 009 661 901) & Ors (according to the schedule)	Defendants

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2021
DATE OF JUDGMENT:	17 August 2021
CASE MAY BE CITED AS:	Ayana v Qantas Airways Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 500

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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Where Panel found that aspects of worker’s presentation were inconsistent with video surveillance but made no express finding that worker was feigning – Where Panel considered and excluded a diagnosis of an organic pain condition but did not expressly consider a non-organic pain condition – Tension between principles that a Panel is required to set out its reasoning process and that a Panel is not required to explain why it did not reach an opinion it did not form – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 – Application allowed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Schilling (Victorian Bar Pro Bono Scheme)
For the First Defendant	Mr M Fleming QC and Ms S Gold	Sparke Helmore

HIS HONOUR:

Mr Ayana worked for Qantas as a baggage handler. He suffered the onset of symptoms in his left knee and lower back in October 2014, and on 31 October 2014 made a claim for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013. That claim was accepted and no-fault benefits were paid. On 8 May 2017, Qantas terminated Mr Ayana’s entitlement to no-fault benefits on the grounds that, among other things, he no longer suffered from a compensable injury.

In May 2018, Mr Ayana commenced proceedings in the County Court under s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013, in which he sought leave to commence proceedings for the recovery of damages on the basis that he had suffered a serious injury. He contended that he had a permanent serious impairment or loss of a body function,[1] and/or a permanent severe mental or behavioural disturbance or disorder.[2] The County Court referred questions to a medical panel (‘the Panel’) established under the Workplace Injury Rehabilitation and Compensation Act 2013. The answers to the questions posed are binding on the County Court hearing the application for leave to commence proceedings for the recovery of damages.[3]
[1]See Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) s 325(1) (para (a) of the definition of ‘serious injury’).
[2]Ibid (para (c) of the definition ‘serious injury’).
[3]Ibid s 313(4).

The Panel took a history from Mr Ayana and examined him. Mr Ayana presented to the Panel as somebody in significant pain and with considerable disability. However, the Panel, in answer to a question directed at the nature of Mr Ayana’s medical condition, stated:

In the Panel’s opinion, Mr Ayana is suffering from a chronic adjustment disorder with depressed mood,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] VSC 500
Decision Date: 17 August 2021

CaseChat Overview and Summary

The matter involved Ayana, an employee, who sought judicial review of a decision made by a medical panel appointed by Qantas Airways Ltd. The dispute centred on the panel's findings regarding Ayana's presentation of symptoms, which were found to be inconsistent with video surveillance evidence. The panel excluded an organic pain condition but did not explicitly consider or exclude a non-organic pain condition. Ayana argued that the panel failed to adequately set out its reasoning process, while Qantas contended that the panel was not obliged to consider diagnoses it did not form.

The court had to determine whether the panel's decision was flawed due to the absence of specific findings on certain diagnoses and whether the panel was required to set out its reasoning process for diagnoses it did not form. The court considered the tension between the principles that a panel must articulate its reasoning and that a panel is not required to explain why it did not reach a particular opinion. The case hinged on whether the panel's failure to explicitly consider a non-organic pain condition constituted a jurisdictional error.

The court found that while the panel was required to set out its reasoning, it was not obligated to explain why it did not reach an opinion it did not form. The court referred to the decision in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, which established that a panel's failure to consider a particular diagnosis does not necessarily render its decision flawed. The court concluded that the panel's decision was not vitiated by a jurisdictional error, but it allowed the application for judicial review due to the panel's failure to sufficiently articulate its reasoning process.

The court granted the application for judicial review and remitted the matter back to the original decision-maker for reconsideration, with directions to adequately articulate the reasoning process and findings, including any consideration of non-organic pain conditions.

Orders