Nobul Vic Pty Ltd v Slaven & Ors - [2024] VSC 174

IN THE SUPREME COURT OF VICTORIA Not Restricted
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW & APPEALS LIST
S ECI 2023 00092

NOBUL VIC PTY LTD Plaintiff

v

RICKY SLAVEN & ORS (according to the attached Schedule of Parties) Defendants

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JUDGE:

Harris J

WHERE HELD:

Melbourne

DATE OF HEARING:

9 February 2024

DATE OF JUDGMENT:

12 April 2024

CASE MAY BE CITED AS:

Nobul Vic Pty Ltd v Slaven & Ors

MEDIUM NEUTRAL CITATION:

[2024] VSC 174

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JUDICIAL REVIEW – Opinion of Medical Panel – Whether Medical Panel made a jurisdictional error – Procedural fairness – Whether Panel failed to put new information obtained during the examination of the worker to employer party for comment – Whether failure to afford procedural fairness was material to the Panel’s decision – Whether Medical Panel failed to take into account a relevant consideration – Whether Medical Panel failed to make an obvious inquiry about a critical fact – Whether Medical Panel’s factual findings open – Whether Medical Panel’s reasons were inadequate – Workplace Injury Rehabilitation and Compensation Act 2013.
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APPEARANCES:
Counsel Solicitors

For the Plaintiff Mr M F Fleming KC with
Mr D Churilov Russell Kennedy

For the First Defendant Ms M Pilipasidis SC with
Ms G Angelowitsch Shine Lawyers

For the Second to Sixth Defendants No appearance DLA Piper
HER HONOUR:
Introduction

1 The first defendant, Ricky Slaven, was employed by the plaintiff, Nobul Vic Pty Ltd (Nobul), a labour hire company.[1] On 20 November 2018, while placed by Nobul to work as a casual wood machinist with a third party, Mr Slaven suffered a lumbar spine injury while carrying and stacking table tops.[2]
[1]Affidavit of Ricky Slaven sworn 14 July 2020 (Slaven Affidavit), [15].
[2]Affidavit of Tanya Corrine Bloom sworn 13 January 2023 (Bloom Affidavit), [2]; Slaven Affidavit, [17]; Joint Statement filed in the County Court pursuant to s 304(a) of the WIRC Act (s 304(a) Statement), [6]-[7].

2 On 15 July 2020, Mr Slaven lodged a serious injury application pursuant to Division 2 of Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRCAct) with respect to that injury and a secondary/consequential mental or behaviour disturbance or disorder. The Victorian WorkCover Authority was not satisfied that Mr Slaven’s injuries were ‘serious injuries’ within the meaning of the WIRC Act. Mr Slaven issued an Originating Motion in the County Court of Victoria seeking leave to commence a damages proceeding against the plaintiff in respect of the injuries identified in the serious injury application.[3]
[3]Slaven Affidavit, [4].

3 On 14 July 2022, Judge Purcell referred certain medical questions to a Medical Panel pursuant to s 274 of the WIRC Act.[4] The Panel gave a Certificate of Opinion dated 17 November 2022 recording its opinions and reasons, including opinions as to Mr Slaven’s medical conditions and his work capacity. The Panel concluded, in summary, that Mr Slaven had a persisting lumbar dysfunction with referred left leg symptoms,…

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: [2024] VSC 174
Decision Date: 12 April 2024

CaseChat Overview and Summary

In the case of Nobul Vic Pty Ltd v Slaven & Ors, the applicant, Nobul Vic Pty Ltd, sought judicial review of a decision made by a Medical Panel under the Workplace Injury Rehabilitation and Compensation Act 2013. The primary dispute involved the applicant's challenge to the Medical Panel's opinion regarding the degree of permanent impairment of the worker, Mr Slaven. The applicant argued that the Panel made a series of errors in its assessment, including failing to provide procedural fairness, overlooking relevant information, and making findings that were not supported by the evidence.

The legal issues before the court encompassed whether the Medical Panel had erred by not disclosing new information obtained during the worker's examination to the employer for comment, and if this failure constituted a breach of procedural fairness. Furthermore, the court examined whether the Panel had failed to consider a pertinent factor, neglected to make an evident inquiry into a critical fact, or made unsupported factual findings. Additionally, the adequacy of the Panel's reasons for its decision was scrutinized.

The court held that the Medical Panel did not commit a jurisdictional error by failing to disclose new information to the employer, as the Panel's role was not to facilitate a dialogue between the parties but to assess the worker's condition. The court found that the Panel's failure to provide procedural fairness did not materially affect its decision, as the evidence was clear and consistent. It was also determined that the Panel had not overlooked any relevant consideration or failed to make an obvious inquiry. The court found the Panel's factual findings to be open on the evidence, and its reasons were deemed adequate. Consequently, the application for judicial review was dismissed.

The court made no orders regarding costs.

Orders