Kaur v Victorian WorkCover Authority - [2022] VSC 113

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 04785

PERVINDER KAUR	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY & ORS (according to the schedule)	Defendants

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JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 March 2022
DATE OF JUDGMENT:	25 March 2022
CASE MAY BE CITED AS:	Kaur v Victorian WorkCover Authority & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 113

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ADMINISTRATIVE LAW – Judicial review – Opinion of Medical Panel – Whether Medical Panel committed a jurisdictional error – Whether Medical Panel failed to have regard to a relevant factual matter – Adequacy of Panel’s reasons – Decision set aside - Chang v Neill [2019] VSCA 151.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Czarnota with Ms A Tate	Zaparas Lawyers
For the First Defendant	Ms F Ryan SC with Ms S Gold	Hall & Wilcox
For the Second to Sixth Defendants	No appearance	DLA Piper Australia

HER HONOUR:

Preliminary

Ms Kaur is a 43 year old woman who suffered injury to the left side of her neck and left arm during the course of her employment with Rollspack Pty Ltd (‘Rollspack’). The injury occurred on 30 September 2014, when Ms Kaur was cleaning a jammed machine at the Rollspack factory. Ms Kaur claims that in addition to these physical injuries, she also suffers a consequential mental or behavioural disturbance. Ms Kaur now seeks to claim common law damages for these injuries.

In order to do so, Ms Kaur must first satisfy the ‘serious injury’ definition contained in s 325(2)(e) of the Workplace Injury Rehabilitation and Compensation Act2013 (Vic) (‘the Act’).

Ms Kaur presently has an Originating Motion on foot in the County Court of Victoria seeking leave to bring proceedings pursuant to s 335 of the Act. At the request of the first defendant, the County Court referred certain questions to a Medical Panel (‘the Panel’) relevant to the determination of her serious injury application.

On 12 November 2020, the Medical Panel delivered its Certificate of Opinion (‘Opinion’) and written statement of Reasons for that Opinion (‘Reasons’). Ms Kaur was unsuccessful before the Panel insofar as it determined that she had a current work capacity: there were several jobs that constituted suitable employment for Ms Kaur and she had capacity to perform such suitable employment on a full-time basis.

Ms Kaur now seeks judicial review of the Panel’s decision claiming that the Panel made jurisdictional errors. In particular, she alleges that the Panel made an incorrect factual finding regarding the circumstances of her ceasing employment with Rollspack, which amounted to an error on the face of the record. In the alternative, she submitted that the Panel failed to give ‘proper, genuine and realistic’ consideration to relevant matters, failed to correctly apply the statutory test and did not provide adequate reasons. If I am so satisfied, Ms Kaur seeks an order quashing the Panel’s Opinion, together with an order remitting the referred…

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 Kaur v Victorian WorkCover Authority

Details

AGLC: Kaur v Victorian WorkCover Authority [2022] VSC 113
Case: [2022] VSC 113
Decision Date: 25 March 2022

CaseChat Overview and Summary

Kaur appealed against a decision of the Victorian WorkCover Authority, which determined that she was not entitled to permanent total incapacity (PTI) benefits. The appeal was heard in the Supreme Court of Victoria. The central issue in this case was whether the Medical Panel, which assessed Kaur's entitlement to PTI benefits, made a jurisdictional error in their decision-making process. Specifically, the court examined whether the Panel failed to consider a relevant factual matter and if their reasons for the decision were adequate. The court was required to determine whether the Panel's failure to consider a relevant factual matter constituted a jurisdictional error, and if so, whether the decision should be set aside.

The court found that the Medical Panel did indeed fail to consider a relevant factual matter, which constituted a jurisdictional error. Furthermore, the court held that the Panel's reasons for the decision were inadequate as they did not address the omitted factual matter. In light of the findings, the court determined that the decision should be set aside, in accordance with the principles established in the case of Chang v Neill [2019] VSCA 151.

The Supreme Court of Victoria set aside the decision of the Victorian WorkCover Authority, finding that the Medical Panel had committed a jurisdictional error by failing to consider a relevant factual matter and that their reasons for the decision were inadequate. The matter was remitted back to the Authority for reconsideration in light of the court's findings. The decision serves as a reminder for decision-makers to carefully consider all relevant factual matters and to provide adequate reasons for their decisions.

Orders