Smith v Commonwealth of Australia

[2009] VSC 419

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
JUDICIAL REVIEW AND APPEALS LIST

No. 5521 of 2009

IN THE MATTER of an application pursuant to section 3 of the
Administrative Law Act 1978.

ARTHUR SMITH	Applicant
v
COMMONWEALTH OF AUSTRALIA	First respondent
and
BALLARAT AVIATION MUSEUM INC	Fourth respondent

JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 September 2009
DATE OF JUDGMENT:	30 September 2009
CASE MAY BE CITED AS:	Smith v Commonwealth of Australia
MEDIUM NEUTRAL CITATION:	[2009] VSC 419

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JUDICIAL REVIEW – medial panel – determination of degree of impairment – whether exceeds the minimum threshold – serious injury – residual impairment found not to exceed five per cent – significant errors in medical history of injured person taken by panel – no reasonable explanation – taking irrelevant considerations into account – ignoring relevant considerations – jurisdictional error – Wrongs Act 1958, s 28LZG(4) – Administrative Law Act 1978, s 10.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr DG Brookes SC and Mr NB Chamings	Slater and Gordon
For the first respondent	No appearance
For the fourth respondent	Mr MF Fleming	Holman Webb Lawyers

HIS HONOUR:

1. Arthur Smith was a 59 year old unemployed man working for the dole with Ballarat Aviation Museum.  His duties included servicing a flag pole, which he climbed to free a blocked rope.  It collapsed.  Mr Smith fell to the ground, landing on his feet from a considerable height.  He looked down to see bone protruding from the flesh of his left leg.  Mr Smith used his belt as a tourniquet to stem the flow of blood.  Then he called an ambulance on his mobile telephone. 

1. Mr Smith was taken to hospital where he had an operation on his leg.  A metal rod 30 centimetres long was inserted between the knee and the ankle.  There it remains, secured by four screws.  After five years the condition of the leg has stabilised.  Despite extensive physiotherapy, Mr Smith says it is still not right.  As he has been left with a residual disability, he wishes to sue the museum for damages for pain and suffering.  He claims he suffered his injuries as a result of the museum’s negligence in respect of the flag pole.

1. Before he can sue for damages, the provisions of the Wrongs Act 1958 (Vic) require Mr Smith to establish he suffered significant injury.[1]  This is done on the determination of an approved medical practitioner that the degree of impairment in his leg exceeds five per cent.[2]  This is known as the threshold level of impairment.

   [1] Section 28LE.

   [2] Section 28LF(1)(a) and the definition of “threshold level” in s 28LB.

1. An approved medial practitioner did so determine.  The doctor said Mr Smith had continuing symptoms in his left leg following a compound fracture and walked with a limp.

1. As was its right under the Wrongs Act,[3] the museum disputed that determination.  It referred him to a medial panel for reassessment.  That panel examined Mr Smith and the background documentation.  Despite the nature of the fall, the nasty break in the bone, the metal rod and screws in the leg and the limp, the panel determined[4] the degree of Mr Smith’s impairment did not exceed five per cent.  Medical science may indeed have advanced so far as to make such a recovery possible, but it seems a surprising conclusion to reach as regards Mr Smith.

   [3] Section 28LWE.

   [4] Under s 28LZG(4) of the Wrongs Act.

1. Mr Smith is aggrieved by that determination, of which he seeks judicial review in this court under the Administrative Law Act 1978 (Vic). He contends the panel erred in law or in the exercise of its jurisdiction.

1. The panel gave reasons for its determination.  This was not legally required.  It is to be applauded for doing so, as the determination impacts significantly on Mr Smith’s legal rights.  Under the provisions of the Administrative Law Act,[5] those reasons are part of the record.  If the reasons betray the board made an error of law, the ground of review of error of law on the face of the record will be available.   Mr Smith contends the panel committed errors of law in several respects.  I will not need to consider this aspect of his case.

   [5] Section 10.

1. If the panel ignored relevant considerations, or took irrelevant ones into account, judicial review will also be available on the ground that the panel exceeded its jurisdiction.   The reasons of the panel can be examined to see whether it made a jurisdictional error of that kind.  I will be deciding the case on this ground alone.

1. Under the provisions of the Wrongs Act,[6] the governing principles for estimating medical impairment are those specified in the AMA Guides.  The guides required the panel to make a choice between different ways of assessing Mr Smith’s level of impairment.  Depending on that choice, one group of principles or another would have applied.  Mr Smith says the panel erred in law and jurisdiction in the choice it made and in applying the principles.  I will not need to consider this ground.

   [6] Section 28LH(1).

1. Mr Smith’s main ground of attack of the panel’s decision is that it made inexcusable mistakes about his medical history.  He contends the mistakes were so great that his case was not properly considered.  After examining the panel’s reasons and considering the opposing submissions, I uphold that contention.  There are five significant deficiencies, all revealed by comparing the panel’s reasons with Mr Smith’s uncontradicted affidavit evidence as to what he told them.  I have not blindly accepted that evidence, but it has the ring of truth about it and fits well into the objective evidence.

1. In the first place, the reasons misdescribe the accident.  The panel says Mr Smith ‘slipped, slid down the pole and fell, landing on the rope spool’.  I have already set out what actually happened.  It was far more serious. 

1. The panel said Mr Smith ‘did not have any locking or give way of the knee.’  But he told them his left knee took off and gave way.

1. Thirdly, the panel said Mr Smith ‘comfortably walks three to four blocks’.  Mr Smith agrees he told them he could walk for that distance, but he said nothing about doing it comfortably.  The objective evidence of his limp, his presentation on medical examination and the nature of his injury and treatment are not consistent with the panel’s statement but are consistent with his affidavit evidence.

1. The panel’s reasons said Mr Smith ‘participates in a “working on the dole program” performing 30 hours per fortnight.’  He does no such thing.  He was doing such work at the time of his accident, but it put an end to that.  This is a bad error.     

1. Lastly, the reasons said Mr Smith’s scars are not tender.  Yet he told them his scars were numbish and tender.   On medial examination, he says touching one caused him to flinch with pain, yet this was not recorded.

1. These criticisms of the panel’s reasoning are not nit-picking.  There is no reasonable explanation for the deficiencies.  The mistakes are not excusable as the kind the thing that sometimes understandably happens when doctors take down a history and then later set it out.  Especially taken together, the five areas relate to matters of importance to the panel’s determination.  Mr Smith has shown the panel’s determination was based, in these material respects, on a medical history that was not his.  I have ignored some other deficiencies he relied on as they were not so well established.

1. To make and then to take into account an incorrect fact-finding is not necessarily to commit a jurisdictional error.  It is the same with failing to find, and therefore ignoring,  a fact.  Moreover, reasons for decision must be examined fairly, in context and as a whole, not legalistically, minutely and looking for error.  But when the relevant facts have been clearly established and the reasons show the decision-maker acted on the wrong basis in important respects, it may legitimately be said that relevant facts have not been taken into account, that irrelevant ones have been considered and that the decision-maker has failed properly to exercise their jurisdiction.  That is what the panel did here.

1. In conclusion, in the five respects that I have mentioned and taken together, the panel exceeded its jurisdiction by making the determination without taking relevant considerations, and by taking irrelevant considerations into account.  It is unnecessary to consider the other grounds relied on.  There will be orders quashing the determination and remitting the matter for consideration by a differently constituted panel. 

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