Kachoui Didani v Downes-Brydon - [2021] VSC 27

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 03946

ALI KACHOUI DIDANI	Plaintiff
v
DR JENNY DOWNES-BRYDON	First Defendant
DR MAJID RAHGOZAR	Second Defendant
MR KEVIN SIU	Third Defendant
ASSOCIATE PROFESSOR ABDUL KHALID	Fourth Defendant
TASMANIAN SEAFOODS PTY LTD	Fifth Defendant

---

JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 September 2020
DATE OF JUDGMENT:	2 February 2021
CASE MAY BE CITED AS:	Kachoui Didani v Downes-Brydon & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 27

---

ADMINISTRATIVE LAW – Judicial review – Medical panel – Workplace injury – Assessment of worker’s medical condition and work capacity – Termination of weekly compensation payments – Jurisdictional error – Adequacy of reasons – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic).

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	G Uren QC with C Hangay	Zaparas Lawyers
For the First to Fourth Defendants	No appearance
For the Fifth Defendant	M Fleming QC with S Gold	Hall & Wilcox

HIS HONOUR:

The plaintiff, Mr Ali Kachoui Didani, was employed by the fifth defendant, Tasmanian Seafoods Pty Ltd (‘fifth defendant’), as a labourer. In August 2016, the plaintiff experienced lower back pain which radiated to his left leg when he tried to turn over a cooker pot at work to empty it of water.

A claim for compensation made by the plaintiff under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (‘WIRC Act’) was accepted, and weekly compensation payments were made.

In 2019 the authorised insurer decided to terminate the plaintiff’s entitlement to weekly compensation payments on the grounds that he had work capacity. The plaintiff disputed the insurer’s decision. Medical questions relevant to the dispute were referred for opinion to a medical panel constituted by the first to fourth defendants (‘the Panel’). Consistent with the claim form, the referral document to the Panel described the injury as lower back pain which radiated to the left leg.

The plaintiff told the Panel that he continued to suffer back and left leg pain. However, the Panel found he was no longer suffering any physical medical condition relevant to the claimed injury, was suffering mild anxiety and depression secondary to his now resolved physical injury, and that he had no present inability arising from the injury such that he was not capable of performing his pre-injury work or any other suitable employment. The effect of the Panel’s opinion was that the plaintiff did not have an entitlement to continuing payments of weekly compensation.

The plaintiff seeks to review the Panel’s opinion on grounds of jurisdictional error and inadequacy of reasons. The first medical question required the Panel to consider the nature of the plaintiff’s medical condition relevant to the claimed injury. Central to the first two grounds of review is the plaintiff’s submission that the question of injury was resolved by the referral document and if question 1 were properly interpreted, the only answer that could be given by 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.

Keep reading for free

Create a free CaseChat account to read Kachoui Didani v Downes-Brydon and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] VSC 27
Decision Date: 2 February 2021

CaseChat Overview and Summary

In the case of Kachoui Didani v Downes-Brydon, the applicant, Mr Didani, sought judicial review of a decision made by a medical panel under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The panel had assessed Mr Didani's medical condition and work capacity in relation to a workplace injury, leading to the termination of his weekly compensation payments. The Supreme Court of Victoria was tasked with reviewing the panel's decision.

The central legal issue was whether the medical panel had made a jurisdictional error in its assessment of Mr Didani's work capacity. Specifically, the court needed to determine whether the panel had provided adequate reasons for its decision, as required by the Act. The applicant argued that the panel's reasons were insufficient and did not adequately address his condition or the impact of his injuries on his ability to work.

The court found that the medical panel had indeed erred in its assessment of Mr Didani's work capacity. The panel had failed to provide adequate reasons for its decision, which was a jurisdictional error. The court noted that the reasons provided were insufficient to demonstrate that the panel had properly considered the relevant medical evidence and Mr Didani's subjective experience of his condition. The court held that the panel's decision was therefore invalid due to the inadequacy of the reasons provided.

As a result of the court's findings, the decision of the medical panel was quashed. The matter was remitted to the panel for reconsideration, with directions to provide adequate reasons for its decision. The court emphasised the importance of ensuring that medical panels provide sufficient and well-reasoned decisions when assessing a worker's medical condition and work capacity in cases of workplace injury.

Orders