| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 7960 of 2008
BETWEEN
| HELEN JASKY | Plaintiff |
| v | |
| DR LAURA COONEY, DR DAVID FISH, DR BARRY ELLIOT AND DR ELIZABETH LEWIS (In their capacity as members of a Medical Panel constituted under the Accident Compensation Act 1985) and PACIFIC BRANDS HOLDINGS PTY LTD and QBE WORKERS COMPENSATION (VIC) LTD | Firstnamed Defendants Secondnamed Defendants |
---
JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2009 | |
DATE OF JUDGMENT: | 24 February 2009 | |
CASE MAY BE CITED AS: | Jasky v Dr Cooney & Ors | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 51 | |
---
ADMINISTRATIVE LAW – Judicial review of decision of Medical Panel under Accident Compensation Act 1985 (Vic) – Whether finding contrary to evidence – Failure to take into account relevant consideration – Decision set aside – Remitted to differently constituted panel.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Walsh | Clark Toop & Taylor |
| For the Firstnamed Defendants | No appearance | Monahan & Rowell |
| For the Secondnamed Defendants | Ms K Footner | Dibbs Abbott Stillman |
HIS HONOUR:
The plaintiff, by Originating Motion, seeks relief in the nature of certiorari, and a declaration, in respect of a determination by a Medical Panel in respect of a claim by her for compensation against her employer pursuant to the Accident Compensation Act 1985.
The plaintiff was born in June 1974. She commenced employment with the employer, Pacific Brands Holdings Pty Ltd (“Pacific”) in November 2000 on a casual agency hire labour contract. In August 2004, the plaintiff commenced employment with Pacific as a store-worker on a contract basis. On 13 February 2006, the plaintiff completed a claim for compensation under the Act, alleging an injury to her left shoulder. She attributed the injury to her work with Pacific, which involved picking and packing shoes, lifting cartons, and moving pallets. As a result of her injuries, she was off work for a period of some three weeks. Thereafter, she returned to work on reduced hours of four hours per week, with a number of work restrictions. Her continued work was interrupted by further time off.
The plaintiff’s claim for compensation was initially accepted. However, her entitlement to compensation was subsequently terminated on 22 March 2006, on the grounds that she was no longer incapacitated for work, and that her employment was not, or was no longer, a contributing factor to her claimed injury.
The plaintiff commenced proceedings in the Magistrates’ Court against Pacific, and against its insurer, QBE Workers Compensation (Vic) Ltd, claiming resumption of her weekly payments for compensation and medical expenses. On the application of the defendants to those proceedings, the Magistrate, pursuant to s.45(1)(b) of the Act, referred a number of medical questions to the Medical Panel for its opinion. On 22 July 2008, the Panel issued its Certificate of Opinion.
In its Certificate, in answer to question one as to the nature of the plaintiff’s medical condition as pleaded in her Statement of Claim, the Panel stated:
“The…
Continue reading Jasky v Dr Cooney & Ors
Sign in free to access the full text
- AGLC
- Jasky v Cooney [2009] VSC 51
- Case
- [2009] VSC 51
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court included whether the Panel's findings were contrary to the evidence, whether the Panel had failed to consider relevant factors, and if the decision was otherwise legally flawed. The court also needed to determine whether the decision could be set aside and, if so, what the appropriate remedy would be. The applicant argued that the Panel had not properly applied the statutory criteria and had failed to consider all relevant evidence.
In delivering the judgment, the court found that the Panel's decision was indeed contrary to the evidence and failed to take into account relevant considerations. The court held that the Panel had made errors in the application of the statutory criteria and had not adequately considered the medical evidence provided. Consequently, the court set aside the Panel's decision and remitted the matter to a differently constituted panel for reconsideration. This decision was grounded in the principle that administrative decisions must be made according to the law and based on the evidence before the decision-maker.
The final orders of the court were that the decision of the Panel be set aside, and the matter be remitted to a differently constituted panel for reconsideration in accordance with the law. The court emphasised that the new panel must properly apply the statutory criteria and consider all relevant evidence before making a new decision.
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.