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La'Brooy v Jensen

La'Brooy v Jensen

Case [2021] VSC 89 3 March 2021

Judicial Review

Jurisdiction

Constitutional Validity

Administrative Law

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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…

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 La'Brooy v Jensen

Details

AGLC: La'Brooy v Jensen [2021] VSC 89
Case: [2021] VSC 89
Decision Date: 3 March 2021

CaseChat Overview and Summary

La'Brooy v Jensen was a case where the plaintiff sought judicial review of a decision made by a medical panel. The plaintiff, La'Brooy, argued that the panel had failed to consider a relevant fact when determining whether she had a pre-existing impairment. The case was heard in the Supreme Court of Victoria. The primary issue before the court was whether the medical panel had committed a jurisdictional error by failing to take into account a relevant factual matter. The court was required to determine whether the panel had constructively failed to perform its function and whether this amounted to a jurisdictional error. The court considered the statutory framework under the Wrongs Act 1958 and the relevant case law, including Chang v Neill. The court found that the medical panel had indeed failed to consider a relevant factual matter, which led to a constructive failure to perform its function. This amounted to a jurisdictional error, and the court quashed the decision of the medical panel. The court relied on the decision in Chang v Neill to support its conclusion. The court ordered that the decision of the medical panel be quashed and that the matter be remitted back to the panel for reconsideration in light of the court's decision.

Orders