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Maimonis v Bourke

Maimonis v Bourke

Case [2019] VSCA 302 17 December 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0090

THEO MAIMONIS	Applicant
v
MR JOHN BOURKE & ORS (according to the Schedule attached)	Respondent

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JUDGES:	FERGUSON CJ, BEACH and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 December 2019
DATE OF JUDGMENT:	17 December 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 302
JUDGMENT APPEALED FROM:	[2019] VSC 456 (Quigley J)

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ADMINISTRATIVE LAW – Judicial review – Medical panel – Workplace injury – Whether medical panel failed to take into account full statutory definition of ‘injury’ – Whether panel erred in failing to consider issue of ‘significant contributing factor’ – Whether medical panel’s reasons were inadequate – Judicial review proceeding dismissed – No error by primary judge – Application for leave to appeal refused – Accident Compensation Act 1985, ss 5 and 82, Workplace Injury Rehabilitation and Compensation Act 2013, ss 3, 4, 39 and 40.

WORDS AND PHRASES – ‘Injury’ – ‘Aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease’ – ‘Arising out of or in the course of any employment’ – ‘Significant contributing factor’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A D B Ingram QC with Mr N D Horner	Ellis Palmos & Co
For the First to Fourth Respondents	No appearance	DLA Piper Australia
For the Fifth Respondent	Mr J P Gorton QC with Ms F C Spencer	Lander & Rogers
For the Sixth Respondent	Mr J P Gorton QC with Ms F C Spencer	Wisewould Mahony

FERGUSON CJ
BEACH JA
ASHLEY JA:

Between August 1999 and October 2015, Mr Theo Maimonis was a tram driver. Initially he was employed by Metrolink Victoria Pty Ltd (‘Metrolink’). On 30 November 2009,[1] however, his employment was transferred to KDR Victoria Pty Ltd (‘KDR’).
[1]At 3:00 am.

Mr Maimonis has a long history of neck and shoulder pain, first reported in the late 1980s or the early 1990s. His symptoms became worse over time and, on 28 October 2015, he ceased working. He had performed his full duties until then, but has not worked since that time.

Following the cessation of his employment with KDR, Mr Maimonis made claims for compensation in the form of weekly payments and medical and like expenses pursuant to the provisions of the Accident Compensation Act 1985 (‘the AC Act’) and its successor, the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the WIRC Act’). These claims were rejected by Metrolink and KDR, resulting in Mr Maimonis commencing a proceeding in the Magistrates’ Court.

In the Magistrates’ Court proceeding, Mr Maimonis alleges that he has suffered injury as a result of driving C class trams throughout the course of his employment with Metrolink and KDR, and that this injury entitles him to compensation under the provisions of the AC Act and/or the WIRC Act. In his statement of claim in that proceeding, Mr Maimonis pleads the following injuries:

·injury to the cervical spine, requiring multiple surgical interventions, including C5–6/C6-7 anterior cervical discectomy and fusion and left C5–6…

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 Maimonis v Bourke

Details

AGLC: Maimonis v Bourke [2019] VSCA 302
Case: [2019] VSCA 302
Decision Date: 17 December 2019

CaseChat Overview and Summary

In the case of Maimonis v Bourke, the plaintiff sought judicial review of a decision made by a medical panel in relation to a workplace injury claim. The dispute centred on whether the panel had correctly applied the statutory definition of ‘injury’ as per the Workplace Injury Rehabilitation and Compensation Act 2013. Specifically, the plaintiff argued that the panel had not fully considered the statutory definition which includes aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease, and that the panel had failed to consider whether the injury was a significant contributing factor in the claimed condition. The matter was heard in the Federal Court of Australia.

The primary legal issues before the court involved the interpretation and application of the statutory definition of ‘injury’ and the requirement for the panel to consider the issue of ‘significant contributing factor’. The court was also required to assess whether the reasons provided by the medical panel were adequate and whether any errors in law had occurred.

In its decision, the court examined the statutory provisions and held that the medical panel had appropriately considered the full definition of ‘injury’. The court found that there was no error in the panel’s consideration of whether the injury was a significant contributing factor to the condition claimed. Additionally, the court determined that the reasons provided by the panel were sufficient and did not exhibit any procedural unfairness. Consequently, the court dismissed the application for judicial review, finding no error by the primary judge. The application for leave to appeal was subsequently refused.

The court's final order was that the application for judicial review be dismissed and that leave to appeal be refused. The plaintiff was to bear the costs of the proceeding.

Orders