| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 05562
| ROSEMARY ANN RICHTER | Plaintiff |
| v | |
| IAN MALCOLM DRISCOLL & Ors | Defendants |
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| JUDGE: | Zammit J |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 July 2015 |
| DATE OF JUDGMENT: | 1 September 2015 |
| CASE MAY BE CITED AS: | Richter v Driscoll |
| MEDIUM NEUTRAL CITATION: | [2015] VSC 457 |
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ADMINISTRATIVE LAW – Judicial review – Medical Panel – Failure to take into account relevant considerations – Adequacy of reasons – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 3 and 5 – Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120 – Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Wheelahan QC Mr M Waugh | Constable Connor & Co. Pty. Ltd |
| For the Defendant | Mr Fleming QC Ms S Gold | Lander & Rogers Lawyers |
HER HONOUR:
Introduction
This is an application for judicial review of the decision of a medical panel, which found that the plaintiff has a current capacity for employment. Consequentially, she is no longer eligible for weekly compensation payments under the Accident Compensation Act 1985 (Vic) (‘the Act’). The plaintiff’s two primary contentions, which are addressed in turn below, are that the Panel failed to take into account relevant considerations and that it failed to provide adequate reasons for its decision.
Background
The plaintiff was born on 31 July 1957, and is currently 58 years old. She has completed very little formal education, and has some issues with literacy and numeracy. Apart from some babysitting work while in her 20s, the plaintiff has little to no formal employment experience. In addition, she is unable to work with computers.
In June 1994, while volunteering at the nursery owned by the first and second defendants (‘the employers’) as part of a horticulture course, the plaintiff suffered an injury to her lower back when attempting to move a large tub. The injury was diagnosed as a disc prolapse at the level of L5/S1. The plaintiff has subsequently undergone surgery in relation to this injury on three separate occasions: on 14 September 1994, on 9 February 2009 and on 10 August 2010.
On 26 June 2004, a medical panel diagnosed the plaintiff as suffering from a surgically treated left L5/S1 disc prolapse together with a Major Depressive Disorder. The 2004 medical panel determined that the plaintiff was ‘totally incapacitated’ (as this term was defined in the version of the Act in operation at that time), and that this incapacity was likely to continue indefinitely.
On 28 December 2013, the plaintiff received a letter from QBE, the employers’ insurer, stating that from that date the plaintiff would no longer be entitled to weekly compensation payments under the Act. This decision was based on the insurer’s determination that the plaintiff had a current work capacity or, in the alternative, that the plaintiff had no current work capacity but that…
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- AGLC
- Richter v Driscoll [2015] VSC 457
- Case
- [2015] VSC 457
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the Panel had failed to take into account relevant considerations in making their decision, and whether the reasons provided by the Panel were adequate. The applicant argued that the Panel had overlooked critical medical evidence and that their reasons for the decision were insufficient. The respondent, Driscoll, maintained that the Panel had correctly considered all relevant factors and that their reasons were adequate.
In examining the case, the court focused on the statutory framework provided by the Act, particularly sections 3 and 5, which outline the obligations of the Panel in making decisions. The court considered relevant case law, including Giankos v SPC Ardmona Operations Ltd (2011) 34 VR 120 and Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, to understand the standards for judicial review in this context. The court concluded that the Panel had appropriately considered the relevant medical evidence and that their reasons were sufficient. Consequently, the appeal was dismissed.
The court found no basis to interfere with the Panel’s decision and dismissed the applicant’s appeal.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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