| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
judicial review and appeals list
No. 8566 of 2009
| ANTHONY GAMBLE | Plaintiff |
| v | |
| EMERALD HILL ELECTRICAL PTY LTD | Firstnamed Defendant |
| DR PETER LOWTHIAN (Convenor of Medical Panels) | Secondnamed Defendant |
| MEDICAL PANEL (Constituted by Professor Graham Burrows, Dr Timothy Golumbeck, Dr David Barton, Mr Roy Carey and Dr Mark Faragher. | Thirdnamed Defendant |
| CGU WORKERS COMPENSATION (VIC) LIMITED | Fourthnamed Defendant |
JUDGE: | ROSS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 March 2010; further written submissions filed 7 April, 22 April, 10 May, 20 May, 4 June, 8 November and 15 November 2010. | |
DATE OF JUDGMENT | 22 December 2010 | |
CASE MAY BE CITED AS: | Gamble v Emerald Hill Electrical Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 611 | |
---
ADMINISTRATIVE LAW – Review of Medical Panel – jurisdictional error – failure to take into account relevant considerations – adequacy of reasons – constitution of panel – no jurisdictional error – application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A.D.B. Ingram | Holding Redlich |
| For the First and Fourth Defendants | Mr M. Fleming | Hall and Wilcox |
| For the Second and Third Defendants | No appearance | Monahan and Rowell |
HIS HONOUR:
Background
The Plaintiff was injured in the course of his employment with the First Defendant on 17 April 2002 when he fell a distance of 1.5 metres to a concrete floor and sustained a number of fractures to his thoracic spine. The Plaintiff’s injuries required hospital admission and surgical intervention.
The Plaintiff sought compensation from the First Defendant in respect of the injuries sustained and also sought an assessment of his degree of whole person impairment for the purpose of claiming compensation pursuant to s 98C of the Accident Compensation Act 1985 (the Act). The Plaintiff subsequently disputed the assessment of his impairment and that issue was referred to a Medical Panel (the ‘Panel’) by the insurer (the Fourth Defendant), pursuant to s 104B(9) of the Act. The Panel was asked to determine the following questions:
(i) the Plaintiff’s degree of whole person impairment resulting from the accepted injuries (relevantly identified as blurred vision, loss of hearing, memory loss, spine, scarring, psychiatric and autonomic disc function resulting in syncope due to positional change) and whether that impairment was permanent; and
(ii) whether the accepted injuries resulted in a total loss of injury mentioned in the table in s 98E(1) of the Act.
The Panel published its certificate of opinion[1] (the Opinion) and the reasons for its opinion[2] on 22 June 2009. The Panel answered question (i) as follows:
[1]Plaintiff’s courtbook (12 February 2010) 190-191.
[2]Ibid 192-8.
“In the Panel’s opinion the worker has a 35% whole person impairment resulting from the accepted head injury including blurred vision, loss of hearing and memory loss, spine, scarring, autonomic dysfunction resulting in syncope due to postural change injuries when assessed in accordance with Section 91 of the Act. The degree of impairment is permanent.
The Panel is also of the opinion that there is a 0% psychiatric…
Continue reading Gamble v Emerald Hill Electrical Pty Ltd
Sign in free to access the full text
- AGLC
- Gamble v Emerald Hill Electrical Pty Ltd [2010] VSC 611
- Case
- [2010] VSC 611
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court involved whether the Panel had erred in its jurisdictional capacity by failing to consider all relevant factors and providing inadequate reasons for its decision. Additionally, the court examined whether the constitution of the Panel met the necessary requirements and if any such constitutional issues could be considered a jurisdictional error. The court also needed to assess whether the reasons provided by the Panel were sufficient to justify its decision.
The court found that the Panel had not committed a jurisdictional error in its decision-making process. It held that the Panel had adequately considered all relevant factors and provided sufficient reasons for its decision. The constitution of the Panel was also deemed to be in accordance with the necessary requirements, and no constitutional issues were identified that could be considered a jurisdictional error. Consequently, the court dismissed Mr. Gamble's application for judicial review, finding that the Panel's decision was valid and properly reasoned.
As a result of the court's decision, Mr. Gamble's application for judicial review was dismissed, and the original decision of the Medical Panel was upheld. The court's ruling confirmed that the Panel had not committed any jurisdictional error in its handling of Mr. Gamble's occupational injury claim.
Orders
Orders of the court
Full text does not contain this section.
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.