Jafari v Yong - [2020] VSC 589

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 01360

HASAN ALI JAFARI	Plaintiff
v
Dr DOMINIC YONG AND OTHERS (according to the Schedule attached)	Defendants

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2020
DATE OF JUDGMENT:	16 September 2020
CASE MAY BE CITED AS:	Jafari v Yong
MEDIUM NEUTRAL CITATION:	[2020] VSC 589

---

ADMINISTRATIVE LAW – Application by the plaintiff seeking to quash the determination of a medical panel under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) – Whether the panel failed to take into account relevant considerations – Finding that the panel did not fail to take into account relevant considerations to which it was bound to have regard – Khan v Romas [2017] VSC 731 referred to – Whether the panel made a material factual error such that there was a constructive failure to exercise its statutory function – Chang v Neill [2019] VSC 151 referred to – Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms MA Schilling with Ms C Moore	Zaparas Lawyers
For the Sixth and Seven Defendants	Mr MF Fleming QC with Ms FC Spencer	Russell Kennedy Lawyers

HER HONOUR:

Introduction and Background

The plaintiff, Mr Hasan Ali Jafari, has applied to the Court to quash the opinion of the first to fifth defendants, the members of a medical panel (‘Panel’,) with respect to a spinal injury suffered by him during the course of his employment with the sixth defendant, Design Sheetmetal Pty Ltd (‘employer’). The seventh defendant, the Victorian WorkCover Authority (‘VWA’) had accepted liability to pay Mr Jafari compensation after Mr Jafari injured his back in the course of unloading sheet metal products from a truck on 27 October 2015. After two attempts to return to work in early 2016, he ceased work with the employer in May 2016.

From 2001 to 2015 Mr Jafari (who came to Australia from Afghanistan as a refugee in 2001) had worked variously as a machine operator, a welder, a tow truck driver and a truck driver, and had obtained a range of vocational qualifications. He had also been a talented professional and semi‑professional soccer player in Afghanistan, Pakistan, and Australia from his early teens. He commenced employment with the employer in August 2015 as a truck driver, delivering sheet metal products around Melbourne, which often involved repetitive, heavy and awkward manual handling when he loaded and unloaded his truck.

On 27 October 2015 Mr Jafari, whilst unloading guttering at a building site in Mooroolbark, suffered what he said was an acute onset of sharp lower back soreness. He visited a medical clinic, where he was assessed and sent for a CT scan, and prescribed treatment, including physiotherapy, analgesic medication and hydrotherapy. Attempts to return to work undertaking office duties were unsuccessful, and he ceased work permanently in May 2016. He is currently 35 years of age, has limited education and English language skills,…

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 Jafari v Yong

Details

AGLC: Jafari v Yong [2020] VSC 589
Case: [2020] VSC 589
Decision Date: 16 September 2020

CaseChat Overview and Summary

The plaintiff sought to quash the determination of a medical panel under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the Act). The plaintiff argued that the panel failed to take into account relevant considerations when assessing his claim for ongoing rehabilitation services. The matter was heard in the Supreme Court of Victoria.

The court was required to determine whether the medical panel had failed to take into account relevant considerations when assessing the plaintiff’s claim. The court was also required to determine whether the panel made a material factual error such that there was a constructive failure to exercise its statutory function. The court referred to Khan v Romas [2017] VSC 731 and Chang v Neill [2019] VSC 151 to assist in its determination.

The court found that the medical panel had not failed to take into account relevant considerations. The court found that the panel had considered all relevant evidence and had exercised its discretion in accordance with the Act. The court found that the panel had not made a material factual error such that there was a constructive failure to exercise its statutory function. The court dismissed the application.

The court dismissed the application and made no orders for costs.

Orders