Lillis v Barton - [2015] VSC 205

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 00512

CHERYL LILLIS

Plaintiff

DR DAVID BARTON

and

DR JENNIFER HARMER

and

DR STEPHEN ADLARD

and

DR JOHN BOURKE

and

GIPPSLAND SOUTHERN HEALTH SERVICE LTD

First Defendant

Second Defendant

Third Defendant

Fourth Defendant

Fifth Defendant

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JUDGE:	RUSH J
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2014
DATE OF JUDGMENT:	15 May 2015
CASE MAY BE CITED AS:	Lillis v Barton & Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 205

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ADMINISTRATIVE LAW – Judicial review of a certified opinion of a medical panel – Determination of whether the plaintiff had no current work capacity and whether this was likely to continue – Nature of the plaintiff’s medical condition – Whether the medical panel failed to take into account a relevant consideration in respect of the plaintiff’s medical condition – Whether the medical panel failed to provide adequate reasons or failed to disclose an adequate path of reasoning – Order that the medical panel’s opinion be quashed and that the medical questions be remitted to a differently constituted medical panel – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64 – Ryan v The Grange at Wodonga Pty Ltd [2015] VSCA 17.

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APPEARANCES:

Counsel

Solicitors

For the Plaintiff

Mr A.G. Uren QC with
Mr J.F. Goldberg

Slater & Gordon

For the Fifth Defendant

For the First to Fourth Defendants

Ms K. Judd QC with
Mr R. Kumar

No appearance

Minter Ellison

HIS HONOUR:

Introduction

On or about 23 December 2010, Ms Cheryl Lillis, the plaintiff, worked as a domestic assistant with the fifth defendant, Gippsland Southern Health Service Ltd (‘Gippsland Health’) at its aged care facility in Leongatha. In the course of her employment, she attempted to lift and manoeuvre a floatation chair to allow a resident to eat breakfast (the ‘Incident’). As a result of the Incident, the plaintiff suffered injury.

The plaintiff, on 10 January 2011, submitted a claim for weekly payments of compensation and medical expenses pursuant to the Accident Compensation Act 1985 (Vic) (the ‘Act’) as it then applied alleging she had sustained injury to her ‘lower back’ and ‘left leg’.[1] Liability for the claim was accepted by Allianz, an authorised agent of the Victorian WorkCover Authority. In March 2013, notice was provided by the agent to the plaintiff that weekly payments of compensation would terminate on 17 June 2013.[2]
[1]See Worker’s Injury Claim Form dated 10 January 2011.
[2]See the letter addressed to the plaintiff from Allianz dated 13 March 2013.

Upon receipt of the notice, the plaintiff lodged a request for conciliation and subsequently the appointed WorkCover Conciliation Officer referred certain medical questions to a medical panel for opinion.[3] A medical panel comprising the first defendant, an occupational physician, the second defendant, an orthopaedic surgeon, the third defendant, a rheumatologist, and the fourth defendant, a psychiatrist, was convened to provide an opinion in respect of the referred medical…

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 Lillis v Barton

Details

AGLC: Lillis v Barton [2015] VSC 205
Case: [2015] VSC 205
Decision Date: 15 May 2015

CaseChat Overview and Summary

The case of Lillis v Barton concerns a judicial review of a decision made by a medical panel regarding the plaintiff's work capacity. The plaintiff, Lillis, sought to challenge the panel's opinion that they had no current work capacity and that this situation was likely to continue. The case was heard in the court of appeal, with the plaintiff arguing that the medical panel's decision was flawed on several grounds.

The legal issues before the court involved the nature of the plaintiff's medical condition and whether the panel had correctly assessed this condition. The plaintiff argued that the panel failed to take into account a relevant consideration in respect of their medical condition, which led to an incorrect assessment of their work capacity. Additionally, the plaintiff contended that the panel failed to provide adequate reasons for their decision or to disclose an adequate path of reasoning. The court was tasked with determining whether these issues warranted a quashing of the panel's opinion and a remitting of the medical questions to a differently constituted panel.

The court examined the reasoning of the medical panel and the arguments presented by the plaintiff. It was found that the panel had indeed failed to consider a relevant aspect of the plaintiff's medical condition, which was a significant oversight. Furthermore, the court determined that the panel's reasons were insufficient and did not adequately explain their path of reasoning. This was a critical flaw, as it undermined the transparency and fairness of the decision-making process. Consequently, the court concluded that the panel's opinion should be quashed and the medical questions remitted to a differently constituted panel, as per the precedents set in Wingfoot Australia Partners Pty Ltd v Kocak and Ryan v The Grange at Wodonga Pty Ltd.

In light of these findings, the court made an order quashing the medical panel's opinion and remitting the medical questions to a differently constituted panel. This decision ensures that the plaintiff's medical condition and work capacity are reassessed with the necessary considerations and adequate reasoning.

Orders