Johnston v Damjanoski - [2019] VSC 272

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW & APPEALS LIST

S ECI 2018 00422

STEPHEN JOHNSTON (trading as A. ACE FISHING CHARTERS)	Plaintiff
v
BOBAN DAMJANOSKI & ORS (according to the attached Schedule)	Defendants

---

JUDGE:	Cavanough J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 2019
DATE OF JUDGMENT:	9 April 2019 (Revised from transcript and published 10 April 2019) (Revision of MNC number only on 30 April 2019)
CASE MAY BE CITED AS:	Johnston v Damjanoski
MEDIUM NEUTRAL CITATION:	[2019] VSC 272

---

ADMINISTRATIVE LAW – Medical Panel – Determination of degree of impairment resulting from alleged psychiatric injury – Post-Traumatic Stress Disorder – Whether Panel wrongly disregarded evidence about claimant’s physical injuries – Alleged error not established – Any such error would not have vitiated determination in any event – Application for judicial review dismissed – Wrongs Act 1958 s 28LJ.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	M F Fleming QC with F Spencer	Colin Biggers & Paisley, Lawyers
For the Defendant	J Forbes QC with J Goldberg	John Dellios & Associates, Lawyers

HIS HONOUR:

Very early in the morning on 26 March 2016, according to the unchallenged evidence in this case,[1] a large fishing charter boat captained by the plaintiff, Mr Johnston, struck a small dinghy at anchor in Port Phillip Bay. The first defendant, Mr Damjanoski, was in the dinghy, together with a friend of his. The friend was taken to hospital, quite badly injured. Mr Damjanoski was also taken to hospital, but was discharged the same day. Mr Damjanoski may have suffered injuries to his neck and back in the incident. Indeed, this matter can be dealt with on the assumption that he did. More importantly, it is not in dispute[2] that Mr Damjanoski had seen the charter boat coming and endured a very frightening experience. All the medical evidence indicates that the incident caused Mr Damjanoski to suffer Post-Traumatic Stress Disorder, a recognised psychiatric condition.
[1]As indicated below, this proceeding is an application for judicial review in respect of processes undertaken pursuant to Part VBA of the Wrongs Act 1958. Hence there was no occasion for the plaintiff to make any challenge to the claims made by the first defendant about the underlying alleged events referred to in this paragraph, and there is no occasion for any findings of fact to be made by this Court as to those underlying alleged events.
[2]But see previous footnote.

Mr Damjanoski wishes to sue Mr Johnston in negligence for non-economic loss in respect of his alleged injuries. To do so, he must comply with the requirements of Part VBA of the Wrongs Act 1958 (‘the Act’).[3] He has made a formal claim under those provisions.
[3]See, generally, Mitchell v Malios [2013] VSC 480 (Beach J); Colquhoun & Ors v Capitol Radiology Pty Ltd & Ors [2013] VSCA 58; Hatswell v Victoria [2013] VSC 262 (Kyrou J).

On 23 May 2018 a Medical Panel determined, under Division…

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 Johnston v Damjanoski

Details

AGLC: Johnston v Damjanoski [2019] VSC 272
Case: [2019] VSC 272
Decision Date: 9 April 2019 (Revised from transcript and published 10 April 2019) (Revision of MNC number only on 30 April 2019)

CaseChat Overview and Summary

The matter of Johnston v Damjanoski involved a dispute concerning a decision made by a Medical Panel regarding the degree of impairment resulting from an alleged psychiatric injury, specifically Post-Traumatic Stress Disorder. The applicant sought judicial review of the Panel's decision under the Wrongs Act 1958. The case was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the Panel had erred in disregarding certain evidence pertaining to the applicant's physical injuries and, if so, whether such an error would have vitiated the Panel's determination of the degree of psychiatric impairment. The applicant argued that the Panel's disregard of evidence about physical injuries was an error that impacted the Panel's assessment of the degree of psychiatric impairment.

The court found that the Panel had not erred in disregarding the evidence about the physical injuries, as it did not directly contribute to the degree of psychiatric impairment. Even if such an error had occurred, the court held that it would not have vitiated the Panel's determination. The Panel had properly considered the evidence regarding the psychiatric injury, and the applicant's physical injuries did not affect the degree of psychiatric impairment. Consequently, the court dismissed the application for judicial review.

The final orders of the court were that the application for judicial review was dismissed, and the applicant was to bear the costs of the proceeding.

Orders