| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 03253
| CARLYLE LA’BROOY | Plaintiff |
| v | |
| DR STEVEN JENSEN | First Defendant |
| and | |
| PETER WILDE | Second Defendant |
| and | |
| WOOLWORTHS GROUP LTD | Third Defendant |
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JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 July 2020 |
DATE OF JUDGMENT: | 3 March 2021 |
CASE MAY BE CITED AS: | La’Brooy v Jensen |
MEDIUM NEUTRAL CITATION: | [2021] VSC 89 |
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ADMINISTRATIVE LAW – Judicial review – Medical panel – Whether medical panel has committed a jurisdictional error in determining whether the plaintiff has a pre-existing impairment – Where medical panel has failed to have regard to a relevant factual matter – Medical panel constructively failed to perform its function – Medical panel committed jurisdictional error – Decision quashed – Wrongs Act 1958, s 28LL(3) – Chang v Neill [2019] VSCA 151, applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | P Czarnota | LHD Lawyers |
| For the First and Second Defendants | No appearance | Russell Kennedy |
| For the Third Defendant | M Kenneally | HBA Legal |
HIS HONOUR:
The plaintiff, Carlyle La’Brooy, suffers from a hip and back injury which he alleges was caused when, on 10 May 2018, he fell after tripping on a writing pad which was on the ground at the Big W store at Pakenham (the May 2018 incident). The store was operated by Woolworths Group Ltd (Woolworths), the third defendant in the proceeding.
On 5 February 2019, Dr Thomas Kossmann, orthopaedic surgeon, certified pursuant to s 28LN of the Wrongs Act 1958 (the Act) that the degree of impairment resulting from Mr La’Brooy’s injury satisfied the ‘significant injury’ threshold level. In an earlier report dated 18 January 2019, Dr Kossmann had assessed Mr La’Brooy’s whole person impairment (which included assessments for the lumbar spine and left hip) at seven per cent.
On 27 March 2019, pursuant to Part VBA of the Act, Woolworths referred a question to a medical panel comprised of the first and second defendants (the Panel). After examining Mr La’Brooy on 13 May 2019, the Panel issued a Certificate of Determination with Reasons for Determination on 2 June 2019 (the reasons).
The question referred to the Panel and its answer were as follows:
Q.Does the degree of impairment resulting from the physical injury to the claimant alleged in the claim satisfy the threshold level?
A.The Panel determined that the degree of whole person impairment resulting from the physical injuries to the claimant alleged in the claim does not satisfy the threshold level.
By originating motion dated 17 July 2019, Mr La’Brooy seeks judicial review of the Panel’s opinion. At hearing, Mr La’Brooy advanced the following five separate, albeit overlapping, grounds:
Ground 1The medical panel committed jurisdictional error by:
(i)failing to properly construe and apply s 28LL(3) of the Act; or
(ii)alternatively, improperly having regard to irrelevant considerations,
in finding and disregarding, the existence of a pre-existing, longstanding impairment to the lumbar spine…
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- La'Brooy v Jensen [2021] VSC 89
- Case
- [2021] VSC 89
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