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…

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 Richter v Driscoll

Details

AGLC: Richter v Driscoll [2015] VSC 457
Case: [2015] VSC 457
Decision Date: 1 September 2015

CaseChat Overview and Summary

The dispute in Richter v Driscoll involved a claim for judicial review of a decision made by a Medical Panel under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). The applicant, Richter, sought to challenge the Panel’s decision regarding their eligibility for certain rehabilitation benefits. The case was heard in the Supreme Court of Victoria.

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