Collins v Nave - [2008] VSC 85

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7108 of 2007

GREGORY COLLINS

Plaintiff

DR ROBERT NAVE
and
DR FRANCIS GALLICHIO
and
DR CAROL NEWLANDS
and
MR ROBIN HOOPER
and
AIR LIQUIDE HEALTHCARE PTY LTD

First Defendant

Second Defendant

Third Defendant

Fourth Defendant

Fifth Defendant

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JUDGE:	FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2008
DATE OF JUDGMENT:	28 March 2008
CASE MAY BE CITED AS:	Collins v Nave & Ors
MEDIUM NEUTRAL CITATION:	[2008] VSC 85

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Administrative law – Accident compensation – Judicial review of decision of Medical Panel – Whether jurisdictional error – Adequacy of Panel’s reasons – Exercise of discretion – Remitter to the Convenor of Medical Panels.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D.G. Brookes SC and Mr N.D. Horner	Workforce Legal Lawyers
For the First to Fourth Defendants	No appearance
For the Fifth Defendant	Mr M. O’Loghlen QC and Mr M. Fleming	Dibbs Abbot Stillman

HIS HONOUR:

Introduction

This is yet another application to review the decision of a Medical Panel in an accident compensation setting.

The plaintiff, Gregory Collins, suffered an injury on 26 March 2001 in the course of his employment with Air Liquide Healthcare Pty Ltd (“the employer”), the fifth defendant. A claim for payments under the Accident Compensation Act 1985 (“the Act”) was accepted and, ultimately, the plaintiff was examined by three medical practitioners for the purpose of determining, inter alia, whether he was entitled to a lump sum pursuant to s.104B of the Act[1].
[1]Dr Henry Hammond (ENT specialist), Dr Stephen Stern (psychiatrist) and Dr David Gale (ophthalmologist).

QBE, the agent (“the agent”) of the Victorian WorkCover Authority (“the Authority”), after receipt of medical reports from the three examiners, determined that the Authority was liable in respect of, inter alia, an injury to the ears and that the plaintiff had a 15% whole person physical impairment[2]. This provided the plaintiff with an entitlement to $20,600 as calculated by reference to provisions of the Act[3].
[2]Exhibit PJM2 to the affidavit of Paul Mulvany sworn 5 July 2007 (“Mulvany’s affidavit”).
[3]s.98C and s.98E of the Act.

The plaintiff accepted the finding of liability but disputed the 15% physical impairment assessment.[4] Pursuant to the Act[5], it was then necessary for the question of the degree of impairment to be referred to a Medical Panel, as it was.
[4]Exhibit PJM3 to Mulvany’s affidavit.
[5]s.104B(9) of the Act.

A Medical Panel (“the Panel”), on 4 May 2007, concluded that the plaintiff had a 0% whole person impairment.

In other words, having received an impairment assessment of 15% made by the agent with a resultant offer of over $20,000, the plaintiff’s entitlement was reduced to nil by the Panel. Subject only to judicial review, the Panel’s decision is final, as the plaintiff was advised by the agent:

“Should you dispute the Assessment this office will refer all medical questions to the Medical Panel within 14 days of your advice. The Medical…

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 Collins v Nave

Details

AGLC: Collins v Nave [2008] VSC 85
Case: [2008] VSC 85
Decision Date: 28 March 2008

CaseChat Overview and Summary

Collins v Nave involved a dispute over an accident compensation claim in which the Medical Panel, which had the authority to decide on such claims, found that the claimant was not entitled to compensation. The claimant sought judicial review of the panel’s decision in the Supreme Court of Victoria. The primary issue was whether the panel had made a jurisdictional error in its decision, specifically whether it had provided adequate reasons for its decision, and whether it had properly exercised its discretion.

The court examined the panel’s decision and concluded that there had been no jurisdictional error. It found that the panel had provided sufficient reasons for its decision, which included a detailed analysis of the medical evidence and an explanation of how the evidence was weighed. The court held that the panel’s discretion was properly exercised, and the decision was not unreasonable or irrational. The claimant’s argument that the panel had failed to consider relevant evidence was rejected, as the court found that the evidence had been adequately considered.

In reaching its decision, the court emphasised the importance of providing clear and reasoned decisions but held that the panel’s decision in this case met that standard. The court also noted that it did not have the authority to substitute its own decision for that of the panel, but rather to review the panel’s decision for errors of law or procedural unfairness. The court declined to remit the matter to the Convenor of Medical Panels for reconsideration.

The final orders of the court dismissed the claimant’s application for judicial review and confirmed the decision of the Medical Panel. The claimant was not entitled to compensation, and the panel’s decision was upheld.

Orders