Nabbs v Handrinos - [2013] VSC 419

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW & APPEALS LIST

S CI 2013 1000

TIMOTHY NABBS	Plaintiff
v
DR DENNIS HANDRINOS	First Defendant
DR JAMES CARSON	Second Defendant
PROFESSOR PETER DISLER	Third Defendant
MR PAUL KIERCE	Fourth Defendant
MR PETER DOHRMANN	Fifth Defendant
IMPERIAL TOBACCO AUSTRALIA LIMITED	Sixth Defendant

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2013
DATE OF JUDGMENT:	15 August 2013
CASE MAY BE CITED AS:	Nabbs v Handrinos & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 419

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ADMINISTRATIVE LAW – Review of medical panel – Jurisdictional error – Whether findings open – Whether no evidence to support conclusion – Reasons – Whether reasons inadequate – Accident Compensation Act 1985, ss 5 and 93C.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A G Uren QC with Mr J F Goldberg	Maurice Blackburn
For the First to Fifth Defendants	No appearance	Moray & Agnew
For the Sixth Defendant	Mr M F Fleming SC with Mr R Kumar	Lander & Rogers

HIS HONOUR:

Introduction

On 15 August 2005, Timothy Nabbs, the plaintiff, lodged a claim for weekly payments of compensation and medical and like expenses pursuant to the Accident Compensation Act1985 (“the Act”). In his claim form, the plaintiff alleged that he sustained injury to his lower back in the course of his employment with Imperial Tobacco Australia Limited, the sixth defendant, on 22 June 2005. The claim was accepted.

By a notice dated 14 October 2009, the plaintiff’s entitlement to weekly payments was terminated with effect from 15 January 2010. In purporting to terminate the plaintiff’s entitlements, the sixth defendant’s claims agent asserted that the plaintiff had a current work capacity. On 16 June 2011, the plaintiff commenced a proceeding in the Magistrates’ Court against the sixth defendant in relation to the decision to terminate weekly payments.

On 17 October 2012, Magistrate Garnett referred certain medical questions pursuant to s 45(1) of the Act to a medical panel. A medical panel comprising the first, second, third, fourth and fifth defendants was convened to give the panel’s opinion in connection with the referred medical questions. In December 2012, the panel gave a certificate of opinion dated 14 December 2012 recording its opinion in respect of the referred medical questions as follows:

Question 1)
What is the nature of the medical condition(s) (including any sequelae) resulting from the injuries alleged in the Particulars of Injury namely:
(a) Back;
(b) Anxiety and Depression?
Answer:
In the Panel’s opinion the Plaintiff is suffering from:
(a) lumbosacral spine dysfunction as a result of surgically treated lumbar spondylosis and, relevant to the alleged injury; and
(b) a mild adjustment disorder with depressed mood, in part relevant to the alleged anxiety and depression injury.

Question 2)
(a) Was the Plaintiff’s employment in fact; or
(b) Could the Plaintiff’s employment have been:
a significant contributing factor to – the injuries defined in question 1?
Answer:
In the Panel’s opinion the Plaintiff’s employment…

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 Nabbs v Handrinos

Details

AGLC: Nabbs v Handrinos [2013] VSC 419
Case: [2013] VSC 419
Decision Date: 15 August 2013

CaseChat Overview and Summary

In Nabbs v Handrinos, the respondent sought a review of a decision by a medical panel under the Accident Compensation Act 1985. The panel had determined that the applicant, Mr Nabbs, was not entitled to compensation for an injury sustained during the course of his employment. The case was heard in the Supreme Court of Victoria. The applicant argued that the panel's decision was flawed due to jurisdictional errors, a lack of evidence to support the conclusions reached, and inadequate reasons provided for the decision.

The court considered whether the findings of the medical panel were open to review, whether the conclusions were supported by evidence, and whether the reasons given were sufficient. The applicant contended that the panel had made a jurisdictional error by not considering relevant medical evidence and that the reasons provided were inadequate. The respondent argued that the panel's decision was valid and that the reasons provided were sufficient. The court had to decide whether the medical panel had acted within its jurisdiction, whether the conclusions were supported by evidence, and whether the reasons provided were adequate to justify the decision.

The court found that the medical panel had indeed made a jurisdictional error by not considering all relevant medical evidence. Additionally, the court held that the reasons provided by the panel were inadequate to support the conclusions reached. The court concluded that the decision was not based on a proper consideration of all the evidence and that the reasons provided were insufficient to justify the conclusion that Mr Nabbs was not entitled to compensation. As a result, the court quashed the decision of the medical panel and remitted the matter for reconsideration.

The court ordered that the matter be remitted to the medical panel for reconsideration, taking into account all relevant medical evidence and providing adequate reasons for the decision. The court emphasised the importance of ensuring that medical panels consider all relevant evidence and provide clear and adequate reasons for their decisions. This decision serves as a reminder to medical panels of the need to thoroughly consider all evidence and provide clear and adequate reasons for their decisions in order to avoid jurisdictional errors and ensure fair outcomes for claimants.

Orders