Jasky v Dr Cooney & Ors - [2009] VSC 51

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7960 of 2008

BETWEEN

HELEN JASKY

Plaintiff

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

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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

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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.

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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…

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 Jasky v Dr Cooney & Ors

Details

AGLC: Jasky v Cooney [2009] VSC 51
Case: [2009] VSC 51
Decision Date: 24 February 2009

CaseChat Overview and Summary

The case of Jasky v Dr Cooney & Ors involved the applicant, Ms Jasky, seeking judicial review of a decision made by a Medical Panel under the Accident Compensation Act 1985 (Vic). The dispute centred around the Panel's assessment of Ms Jasky's claim for compensation following a workplace injury. Ms Jasky argued that the Panel's decision was contrary to the evidence, failed to take into account relevant considerations, and was otherwise flawed. The case was heard and determined in the Supreme Court of Victoria.

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