McVey v GJ and LJ Smith Pty Ltd - [2014] VSC 236

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 04775

WILLIAM McVEY (A person under a disability who brings this proceeding by his Litigation Guardian ANTHONY BULLARD)	Plaintiff
v
GJ & LJ SMITH PTY LTD & ORS	Defendants

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 April 2014
DATE OF JUDGMENT:	21 May 2014 (Revised on 21 May 2014)
CASE MAY BE CITED AS:	McVey v GJ & LJ Smith Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 236

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ACCIDENT COMPENSATION – Medical Panel – Previous medical panel – Assessment of psychiatric impairment resulting from accepted psychiatric schizophrenia injury at 0% – Whether wrong in law or open to medical panel – Accident Compensation Act 1985 (Vic), ss 67(1) and (1A), 68(4), 82(1), 91(1) and (1A), 91(7)(c), 98C(1) and 104B.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Uren QC with Mr A Ingram	Melbourne Injury Lawyers Pty Ltd
For the First Defendant	Mr M Fleming QC with Mr R Kumar	Thomson Geer
For the Second and Third Defendants	No appearance

HIS HONOUR:

Introduction

The plaintiff (‘Mr McVey’) by his litigation guardian (‘litigation guardian’) sues his former employer, and the members of the medical panel (‘medical panel’) that on 15 July 2013 certified his level of psychiatric impairment resulting from an accepted psychiatric injury at 0% under s 91 of the Accident Compensation Act 1985 (Vic) (‘the Act’). Mr McVey sustained an injury in the course of his employment as a truck driver with the first named defendant (‘the employer’). On 30 April 1999 he was checking the engine of a truck and raised the hood covering the engine. A gust of wind caused the hood to strike him (‘the incident’).

Mr McVey suffers from schizophrenia, and permanent psychiatric impairment as a consequence of this illness.

Mr McVey seeks to have the certificate of opinion, and the reasons for opinion of the medical panel quashed by the Court for error of law. In substance, two errors of law are alleged. The first is that the medical panel did not assess his accepted psychiatric condition in accordance with s 91 of the Act. He says that the medical panel was wrong when it considered that his schizophrenia was an injury or cause unrelated to his accepted injury. He says that it was not open to the medical panel, having assessed his degree of whole person impairment from his accepted schizophrenic condition at 35%, to form the opinion that there was a 0% psychiatric impairment resulting from the accepted psychiatric schizophrenia condition when assessed in accordance with s 91 of the Act.

The second error of law argued on behalf of Mr McVey was the failure of the medical panel to adopt, apply and accept as final and conclusive the opinion of a prior medical panel given on 11 February 2007 (‘previous medical panel’). In essence, it is said that the medical panel was required…

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.

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Details

Case: [2014] VSC 236
Decision Date: 21 May 2014 (Revised on 21 May 2014)

CaseChat Overview and Summary

In McVey v GJ and LJ Smith Pty Ltd, the Victorian Court of Appeal considered the validity of a medical panel's assessment of psychiatric impairment resulting from an accepted psychiatric schizophrenia injury at 0%. The applicant, McVey, sought to challenge the panel's decision, arguing it was wrong in law or open to the panel. The case revolved around the interpretation and application of several sections of the Accident Compensation Act 1985 (Vic), including sections 67(1) and (1A), 68(4), 82(1), 91(1) and (1A), 91(7)(c), 98C(1) and 104B.

The court was tasked with determining whether the medical panel's assessment was legally sound and whether it had erred in its application of the relevant statutory provisions. Specifically, the court examined whether the panel had correctly identified the relevant statutory criteria for assessing psychiatric impairment and whether it had applied those criteria appropriately in light of the applicant's medical evidence. The court also considered whether the panel had failed to consider relevant evidence or had made errors in its interpretation of the statutory framework.

In its decision, the court found that the medical panel had correctly applied the statutory criteria for assessing psychiatric impairment. The court held that the panel had appropriately considered the applicant's medical evidence and had correctly interpreted the statutory provisions. The court further found that the panel's assessment of 0% psychiatric impairment was not wrong in law or open to the panel. The applicant's argument that the panel had failed to consider relevant evidence or had misinterpreted the statutory framework was rejected by the court.

The court's final orders affirmed the decision of the medical panel, dismissing the applicant's appeal. The court found that the panel's assessment of 0% psychiatric impairment was legally sound and that the applicant had not demonstrated any error on the part of the panel. The applicant's appeal was therefore dismissed, and the panel's decision was upheld.

Orders