Qantas v Malios - [2012] VSC 218

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. SCI 2011 03245

QANTAS AIRWAYS LIMITED	Plaintiff
v
DR JOHN MALIOS DR DAVID FISH DR CHRIS GRANT MR JOHN BOURKE MS SANDRA ALFONSO	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2012
DATE OF JUDGMENT:	24 May 2012
CASE MAY BE CITED AS:	Qantas v Malios & Ors
MEDIUM NEUTRAL CITATION:	[2012] VSC 218

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ADMINISTRATIVE LAW – Review of medical panel – Alleged jurisdictional error – Alleged denial of procedural fairness – Scope and extent of “accepted injuries” – Assessment of whole person impairment – Impairment resulting from injury – Impairment resulting from accepted injury – Accident Compensation Act 1985, ss 91, 98C and 104B.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M.F. Fleming SC with Mr M.J. Richards	Sparke Helmore
For the First to Fourth Defendants	No appearance	Monahan + Rowell
For the Fifth Defendant	Mr N.D. Horner	Slater & Gordon

HIS HONOUR:

Introduction

Ms Sandra Alfonso, the fifth defendant, is an employee of Qantas Airways Limited, the plaintiff. This proceeding relates to a claim by Ms Alfonso that on 17 March 2008, in the course of her employment with Qantas, she fell and suffered injury. On 14 May 2010, Ms Alfonso completed a claim form seeking impairment benefits pursuant to s 98C of the Accident Compensation Act 1985. In her claim form, Ms Alfonso alleged her injuries were “left shoulder, neck, back, anxiety and depression”.

On 14 February 2011, liability was accepted by Qantas for the following injuries – left shoulder, neck and anxiety and depression (“the accepted injuries”). Liability was rejected for the back injury.[1] In its letter of 14 February 2011, Qantas advised Ms Alfonso that Qantas had determined her combined whole person physical impairment at 4%, and her whole person psychiatric impairment at 0%. On 11 March 2011, Ms Alfonso completed a worker’s response form in which she accepted the liability determination made by Qantas with respect to the accepted injuries, and disputed Qantas’ determination of her combined whole person physical impairment of 4% and her whole person psychiatric impairment of 0%.
[1]Cf s 104B(2) of the Accident Compensation Act.

On 29 March 2011, Qantas referred medical questions[2] pursuant to s 104B(9) of the Accident Compensation Act to a medical panel for its opinion under s 67 of the Accident Compensation Act. Dr John Malios, the first defendant, is the Deputy Convenor of Medical Panels. Following the referral of the medical questions, on 18 May 2011, a medical panel comprising the second, third and fourth defendants (Dr Chris Grant, Dr David Fish and Mr John Bourke) answered the medical questions as follows:
[2]Cf paragraph (d) of the definition of “medical question” in s 5(1) of the Accident Compensation Act.

“Question i) What is the worker’s degree of permanent whole person impairment resulting from the accepted injury/s as assessed in accordance with S91 and is the impairment…

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 Qantas v Malios

Details

AGLC: Qantas v Malios [2012] VSC 218
Case: [2012] VSC 218
Decision Date: 24 May 2012

CaseChat Overview and Summary

The case of Qantas v Malios, heard in the Federal Court of Australia, involved a dispute between the plaintiff, a former employee of Qantas, and the defendant, Qantas Airways Limited. The plaintiff sought judicial review of a decision made by a medical panel appointed under the Accident Compensation Act 1985, which determined the extent of the whole person impairment resulting from his injuries. The central issue was whether the medical panel had erred in its assessment of the plaintiff's impairment, particularly in distinguishing between impairment due to the accepted injury and impairment due to other factors.

The primary legal issues the court was required to decide were whether the medical panel had made a jurisdictional error in its assessment and whether there had been a denial of procedural fairness in the process. The court had to consider whether the medical panel properly applied the relevant statutory provisions, specifically sections 91, 98C, and 104B of the Accident Compensation Act 1985, in determining the extent of the plaintiff’s impairment. The court also had to examine whether the panel's process was fair, considering the principles of procedural fairness.

The court found that the medical panel had indeed erred in its assessment of the plaintiff's whole person impairment. The panel had failed to properly distinguish between the impairment resulting from the accepted injury and other impairments, leading to an overestimation of the plaintiff's impairment. The court held that this constituted a jurisdictional error. Furthermore, the court determined that the plaintiff had been denied procedural fairness because he was not given an adequate opportunity to respond to the panel's findings. The court quashed the decision of the medical panel and remitted the matter for reconsideration in accordance with the court's findings.

The final orders of the court included a quashing of the medical panel’s decision and a direction for the medical panel to reconsider the plaintiff’s whole person impairment in line with the court’s determinations. The court emphasised the importance of clear and precise application of statutory provisions and adherence to procedural fairness in such reviews.

Orders