JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2017
DATE OF JUDGMENT:	12 September 2017
CASE MAY BE CITED AS:	Blacker v Boss Trailers & Ors
MEDIUM NEUTRAL CITATION:	[2017] VSC 538

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ADMINISTRATIVE LAW – Judicial review of an opinion of a medical panel – Extension of time – Rule 56.02 Supreme Court (General Civil Procedure) Rules2015 – Jurisdictional error – Adequacy of reasons – Whether panel failed to have regard to, or explain why it disregarded, nerve conduction study results – Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 – Ryan v The Grange at Wodonga Pty Ltd & Ors [2015] VSCA 17 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr K Hanscombe QC with Ms K Bowshell	Robinson Gill
For the First Defendant	Mr J Gorton QC with Mr R Kumar	Russell Kennedy

HIS HONOUR:

Mr Blacker commenced employment with the first defendant (Boss Trailers) as a labourer on 26 August 2010. His duties involved mixing mortar, carrying bags of cement and carrying buckets of mortar, which sometimes weighed up to 40 kilograms. Almost immediately after he started that work, Mr Blacker developed symptoms in both hands. A WorkCover claim form lodged by Mr Blacker in which the injury was described as ‘tenosynovitis, right wrist’ was accepted by the authorised insurer for Boss Trailers, and benefits were paid pursuant to the Accident Compensation Act 1985 (the Act). Mr Blacker has not worked since September 2010, and continues to complain of symptoms affecting both wrists which have at times attracted the diagnosis of carpal tunnel syndrome. The authorised insurer terminated Mr Blacker’s weekly payments on 2 March 2013. Mr Blacker claims to have an ongoing entitlement to weekly payments of compensation pursuant to the provisions of the Act because, he says, the condition of both arms, and an associated psychological condition, leave him with no current work capacity.

A proceeding was issued by Mr Blacker in the Magistrates’ Court claiming ongoing entitlement to compensation under the Act. In that proceeding, questions were referred to a medical panel for its opinion. On 16 September 2016, answering those questions, a medical panel determined that, while Mr Blacker may have suffered from symptoms of a minor and temporary strain of the wrists caused by his employment, such condition had resolved; the persisting symptoms affecting Mr Blacker’s left and right arms were a consequence of pre-existing constitutional diabetes mellitus; and Mr Blacker was not suffering injury to his mental or behavioural system consequential on a work injury to his left or right arms. The opinion of a panel on any question referred to it must be adopted…

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.

Continue reading Blacker v Boss Trailers

Details

AGLC: Blacker v Boss Trailers [2017] VSC 538
Case: [2017] VSC 538
Decision Date: 12 September 2017

CaseChat Overview and Summary

In the matter of Blacker v Boss Trailers, the applicant, Mr Blacker, sought judicial review of a decision made by a medical panel. The dispute centred on whether the panel's opinion was subject to judicial scrutiny and whether the applicant had provided sufficient justification for the extension of time in filing the application for review. The case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the medical panel's opinion was subject to judicial review and whether the applicant had demonstrated sufficient justification for the extension of time in filing the application. The court had to determine whether the panel had failed to consider or adequately explain why it disregarded the nerve conduction study results. This issue hinged on the principles established in Minister for Aboriginal Affairs v Peko-Wallsend and Ryan v The Grange at Wodonga Pty Ltd & Ors.

The court found that the medical panel's opinion was subject to judicial review as it constituted an administrative decision that affected legal rights. The panel's failure to consider or explain the nerve conduction study results constituted a jurisdictional error, as it did not provide adequate reasons for its opinion. The court emphasised that a decision-maker must consider relevant material and provide reasons that demonstrate a logical progression to the decision. In this case, the panel's omission was significant enough to render its opinion flawed. The court also noted that the applicant had provided a reasonable explanation for the delay in filing the application, granting the extension of time.

The court quashed the decision of the medical panel and remitted the matter for reconsideration in accordance with the court's directions. The medical panel was directed to consider the nerve conduction study results and provide adequate reasons for its opinion. Additionally, the applicant was granted an extension of time to file the application for judicial review.

Orders