Slade v John Patrick Pty Ltd

[2014] VSC 563

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 03937

JUDITH SLADE

Plaintiff

v

JOHN PATRICK PTY LTD (ACN 006 343 826)

First Defendant

and

PETER DOHERTY

and

DENIS ROBERTSON

and

EDMOND VAN AMMERS

and

FRANCIS GALLICHIO

and

HENRY RUNDLE

Second Defendant

Third Defendant

Fourth Defendant

Fifth Defendant

Sixth Defendant

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JUDGE:	RUSH J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2014
DATE OF JUDGMENT:	7 November 2014
CASE MAY BE CITED AS:	Slade v John Patrick Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 563

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ADMINISTRATIVE LAW – Judicial review of a certified opinion of a medical panel –Medical panel provided inadequate reasons for its opinion – Actual path of reasoning – Improper use of Occupational Asthma Guidelines to assess pre-existing constitutional asthma impairment - Whether medical questions should be remitted to original medical panel or differently constituted medical panel – Order that the medical panel’s opinion be quashed and that the medical questions be remitted to a differently constituted medical panel - Wingfoot Australia Partners Pty Ltd & Kocak (2013) 303 ALR 64 – Body Corporate Strata Plan (no 4166) & Ors v Stirling Properties Limited [1984] VR 903 - Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 56 - Accident Compensation Act 1985 (Vic) ss 65, 67, 68, 82(1), 91(1), 91(6A), 91(7)(c), 98C and 98E(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr K.P. Hanscombe SC with Dr K.A. Bowshell	Robinson Gill
For the First Defendant	Mr M.F. Fleming SC with Mr R. Kumar	Lander & Rogers
For the Second to Sixth Defendants	No appearance

HIS HONOUR:

Introduction

1. This is an application for judicial review[1] of a certified opinion of a medical panel comprising the second to sixth defendants (the ‘Panel’) concerning injuries sustained by the plaintiff, Ms Judith Slade, in the course of her employment with the first defendant, John Patrick Pty Ltd.

   [1]Pursuant to o 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic).

1. On 11 March 2010, in the course of her duties working as a landscape architect, the plaintiff attended a site meeting with clients where she unwittingly inhaled toxic fumes emanating from an ‘oil based paint enamel gloss’[2] (the ‘Incident’), which resulted in her suffering (amongst other things) injuries to her respiratory system.  The plaintiff seeks to recover compensation for her injuries from the first defendant pursuant to the Accident Compensation Act1985 (Vic) (the ‘Act’).[3]

   [2]See Worker’s Claim for Impairment Benefits Form dated 26 March 2012 (‘Worker’s Claim Form’).

   [3]See Plaintiff’s Submissions at [1] where it is stated that this judicial review proceeding arises out of a claim in the County Court of Victoria.

1. The first defendant’s Workcover insurer, Allianz Australia Limited (‘Allianz’), accepted liability for the plaintiff’s aggravation of pre-existing constitutional asthma, irritable larynx syndrome (‘ILS’) and psychiatric condition (the ‘Accepted Injuries’), but rejected liability for other injuries claimed by the plaintiff.  For reasons explained below, the plaintiff disputed Allianz’s assessment of…