Hansen Yuncken v Baxter - [2013] VSC 337

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

JUDICIAL REVIEW AND APPEALS LIST

No. S CI 2012 4460

HANSEN YUNCKEN PTY LTD	First plaintiff
VICTORIAN WORKCOVER AUTHORITY	Second plaintiff
v
MALCOLM BAXTER	First defendant
NEIL LORD	Second defendant

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JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2013
DATE OF JUDGMENT:	27 June 2013
CASE MAY BE CITED AS:	Hansen Yuncken v Baxter
MEDIUM NEUTRAL CITATION:	[2013] VSC 337

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JUDICIAL REVIEW – application for order in the nature of certiorari and mandamus – assessment of whole person impairment resulting from industrial deafness – medical panel did not ascertain whether worker had impairment resulting from deafness occurring in non-compensable circumstances – whether panel failed thereby to take relevant considerations into account, misunderstood its statutory function and asked itself the wrong question – Accident Compensation Act 1985 (Vic) s 91(3AAA).

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs	Mr M Fleming SC with Ms F McKenzie	Mr J McMahon, Hall & Wilcox
For the second defendant	Dr K Hanscombe SC with Ms K Bowshell	Mr S Arundell, Slater & Gordon

HIS HONOUR:

Hansen Yuncken Pty Ltd and the Victorian Workcover Authority (‘the plaintiffs’) seek judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) of an assessment of the first defendant, Malcolm Baxter, a medical practitioner and the presiding member of a medical panel constituted under s 63 of the Accident Compensation Act 1985 (Vic) (‘the panel’), in respect of the second defendant, Neil Lord. As relevant, the assessment of the panel, given by way of certified opinion under s 67, was that the degree of Mr Lord’s whole person impairment resulting from industrial deafness calculated in accordance with s 91(3) was 11 per cent and permanent.

Among other grounds, the plaintiffs contend that, in making this assessment, the panel failed to take s 91(3AAA) into account and thereby fell into jurisdictional error, in particular by failing to take relevant considerations into account, misunderstanding its statutory function and asking itself the wrong question.

Section 91(3AAA) provides:

Impairment from industrial deafness or a proportion of such impairment that occurs in circumstances that do not create a liability to pay compensation under this Act must be excluded from the assessment of deafness for the purposes of assessing the degree of impairment under this section.

In hearing loss cases, compensation is payable under s 88(2) (and related provisions) for impairment assessed under s 91(3) which specifies how, in percentage terms, the degree of whole person impairment resulting from diminution of hearing is to be assessed.

Section 91(3AAA) immediately follows s 91(3). On its face, s 91(3AAA) provides that industrial deafness or a proportion of it occurring in non-compensable circumstances is to be excluded from the assessment of deafness for the purposes of assessing the degree of impairment under ‘this section’, which includes s 91(3).

On a question referred pursuant to s 104B(9)(a), the panel was performing the function of assessing under s 91(3) the degree…

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 Hansen Yuncken v Baxter

Details

AGLC: Hansen Yuncken v Baxter [2013] VSC 337
Case: [2013] VSC 337
Decision Date: 27 June 2013

CaseChat Overview and Summary

In the case of Hansen Yuncken v Baxter, the applicant sought judicial review of an assessment of whole person impairment resulting from industrial deafness. The respondent, Baxter, had sustained industrial deafness due to exposure to loud noises in the course of his employment. The assessment was carried out by a medical panel established under the Accident Compensation Act 1985 (Vic). The central issue before the court was whether the panel correctly assessed the impairment, particularly whether it had failed to consider relevant factors, misunderstood its statutory function, or asked itself the wrong question by not ascertaining whether the respondent had impairment resulting from deafness occurring in non-compensable circumstances.

The court examined the statutory framework and the panel's decision-making process. It considered the statutory requirement under section 91(3AAA) of the Accident Compensation Act 1985 (Vic), which mandates the panel to consider all relevant factors in assessing whole person impairment. The court found that the panel had indeed overlooked the necessity to determine if the respondent's impairment was due to non-compensable circumstances. This oversight was seen as a failure to take relevant considerations into account, which is a fundamental aspect of the statutory function of the panel. Consequently, the court concluded that the panel misunderstood its statutory role and consequently asked itself the incorrect question during the assessment.

The court allowed the application for judicial review and quashed the decision of the medical panel. It directed the panel to reassess the respondent's whole person impairment by properly considering all relevant factors, including whether any impairment resulted from non-compensable circumstances. The decision underscores the importance of thorough and accurate assessments in compliance with statutory mandates to ensure fair and just outcomes for claimants.

Orders