Saki v Victorian WorkCover Authority - [2022] VSC 562

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 02029

ANVAR SAKI	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY (and others according to the attached Schedule of Parties)	Defendants

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JUDGE:	FORBES J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2022
DATE OF JUDGMENT:	20 September 2022
CASE MAY BE CITED AS:	Saki v Victorian WorkCover Authority & Ors
MEDIUM NEUTRAL CITATION:	[2022] VSC 562

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ADMINISTRATIVE LAW – Judicial Review – Medical Panel – Workplace Injury – Injury to spine – Food picker and packer – Injury from nature of duties and lifting incident - Accepted claims – Workplace Injury Rehabilitation and Compensation Act2013 (Vic) – Whether Panel considers injury arising from the nature of employment duties on the basis of the facts agreed between the parties – Panel erred by not giving real and genuine consideration to nature of manual handling duties as a cause of injury – Relief granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Eitan Makowski	Arnold Thomas & Becker
For the First Defendant	Michael Fleming QC with Fiona Spencer	MinterEllison
For the Second to Sixth Defendants	No appearances	Victorian Government Solicitor

HER HONOUR:

This proceeding seeks judicial review of an opinion given by a medical panel constituted pursuant to the Workplace Injury Rehabilitation and Compensation Act2013 (Vic) (WIRC Act). Mr Saki was employed by a labour hire agency and placed to work as a picker/packer at Polar Fresh Pty Ltd (Polar Fresh) from 2 November 2015. Polar Fresh operated a cold storage warehouse for products destined for Coles supermarkets. Mr Saki alleged injury to his lumbar spine (the first injury) from his duties over the period between December 2015 and June 2016 (the relevant period) and as a result of a lifting incident on 17 November 2016 (the November incident). He also alleged a consequential psychiatric injury.

Mr Saki had an accepted claim for compensation with his employer in respect of the November incident. He had an accepted claim for impairment benefits in respect of injury occurring ‘over a period of time in the course of employment’ encompassing both the first injury and the November incident.

On 2 December 2019 he applied to the first defendant for a serious injury certificate under the WIRC Act. The application was refused by letter dated 25 June 2020, and County Court proceedings were then begun seeking leave to commence a damages claim against his employer and Polar Fresh. Reliance was placed on both mechanisms of injury. In the course of that proceeding, on 15 October 2020, orders were made referring questions to a Medical Panel (the Panel). The second to sixth defendants are the medical practitioners comprising the Panel. They have taken no active role in the proceeding.[1]
[1]Having indicated their intention by letter dated 23 June 2021 to abide by the outcome in accordance with the principles in R v The Australian Broadcasting Tribunal &…

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: [2022] VSC 562
Decision Date: 20 September 2022

CaseChat Overview and Summary

The case of Saki v Victorian WorkCover Authority involved the claimant, Saki, seeking judicial review of a decision made by a medical panel under the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic). Saki contended that the panel erred in their assessment of her claim for compensation arising from injuries sustained in the course of her employment as a food picker and packer. The dispute centred on whether the panel adequately considered the nature of Saki’s employment duties as a contributing factor to her spinal injury. The matter was heard and determined in the Court of Appeal.

The legal issues before the court were whether the medical panel had properly exercised its discretion and whether it had failed to give real and genuine consideration to the nature of Saki’s manual handling duties as a contributing cause of her injury. The court had to determine if the panel's decision was legally sound, particularly if it had overlooked critical aspects of the employment context that were agreed upon by the parties. Furthermore, the court examined if the panel’s failure to consider the nature of Saki’s duties constituted a material error that warranted judicial intervention.

In its reasoning, the court found that the medical panel had not given genuine consideration to the nature of Saki’s duties as a contributing factor to her injury. The court held that the panel had overlooked the inherent risks associated with manual handling and lifting tasks that were part of Saki’s employment. This oversight was deemed a material error as it failed to properly evaluate the facts agreed upon by the parties. Consequently, the court concluded that the panel’s decision was flawed and granted Saki the relief sought, finding that the panel had indeed erred in its assessment. The court ordered the matter be remitted back to the WorkCover Authority for reconsideration in light of the court's findings.

Orders