McIver v Barton - [2010] VSC 22

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6933 of 2008

DAMION McIVER	Plaintiff
V
DAVID BARTON & ORS	Defendant

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JUDGE:	J. FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2010
DATE OF JUDGMENT:	22 February 2010
CASE MAY BE CITED AS:	McIver v Barton & Ors
MEDIUM NEUTRAL CITATION:	[2010] VSC 22

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ADMINISTRATIVE LAW – Accident compensation – Review of decision of medical panel –Relief sought in the nature of certiorari- Psychiatric injury- Surveillance film viewed by the panel in presence of the worker –-- Whether a failure to provide adequate reasons – Reasons disclose a path of discernible reasoning.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Goldberg	J.N. Zigouras & Co
For the Fifth Defendant submitting appearances for the First to Fourth Defendants	Mr M. Fleming	Hall & Wilcox

HIS HONOUR:

Introduction

In August 1997 the plaintiff, Damion McIver, injured his right arm in the course of his employment. He received weekly compensation payments under the Accident Compensation Act 1985 (“the Act”) for some eight years. In April 2007, his payments were terminated. Subsequently, a medical panel, upon referral by a Magistrate pursuant to s 45 of the Act, was asked to answer a number of questions, including one relating to Mr McIver’s current work capacity. The panel provided an opinion pursuant to s 68 of the Act and determined that Mr McIver had no present inability to perform his pre-injury duties of employment.

Mr McIver now seeks judicial review of that determination and an order in the nature of certiorari quashing the panel’s decision. The only attack made at this hearing was upon the adequacy of the reasons accompanying the panel’s opinion; specifically, its failure to advert to a number of medical opinions provided to it (from both treating doctors and medico-legal specialists) and its failure to refer to Mr McIver’s pre-existing intellectual and psychological disability.

The parties and the issues

The first to fourth defendants are the members of the panel, namely, the chairman, Mr David Barton, psychiatrists, Drs Nathan Serry and Peter Mellington, and Mr Robert Carey, an orthopaedic surgeon. The members of the panel took no part in this hearing and have indicated by letter that they will submit to such orders as the Court might make.

The contradicter at the hearing was the fifth defendant, Mr McIver’s employer, T & H Schreiber Pty Ltd (“Schreiber”).

At the commencement of the hearing, counsel for Mr McIver confined the attack on the panel’s decision to the adequacy of its reasons and abandoned the part of the originating motion asserting jurisdictional error. In essence, he identified two omissions:

(a) the panel’s failure to explain its apparent discounting of the opinions of a number of medical practitioners as to the effect Mr McIver’s psychological condition had upon his capacity to work;
(b) the panel’s failure to deal with the consequences of a significant head injury sustained by Mr McIver in the 1980s and its effect…

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 McIver v Barton

Details

AGLC: McIver v Barton [2010] VSC 22
Case: [2010] VSC 22
Decision Date: 22 February 2010

CaseChat Overview and Summary

In the case of McIver v Barton, the dispute revolves around the review of a decision made by a medical panel under the Accident Compensation Act. The applicant, McIver, sought to challenge the panel's decision in the Federal Court, arguing that it was flawed due to inadequate reasoning. The crux of the matter pertains to whether the panel's decision, which was influenced by a surveillance film viewed in the presence of the applicant, was based on proper legal principles and whether the reasons provided were sufficient.

The court was tasked with determining whether the medical panel's decision was legally sound and whether the reasons provided were adequate. Specifically, the court needed to examine whether the panel failed to provide adequate reasons for their decision and if the reasons given demonstrated a path of discernible reasoning. The court also had to consider the procedural fairness aspect of the surveillance film being viewed in the presence of the applicant.

The court found that the reasons provided by the panel, while not perfect, did disclose a path of discernible reasoning. The film, viewed in the presence of the applicant, did not undermine the fairness of the process, as the applicant was aware of the film and had the opportunity to contest its content. The court held that the panel's decision was legally sound, and the reasons provided were sufficient. Consequently, the court dismissed the application.

Orders