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:

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.

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.

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.

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.

As was its right under the Wrongs Act,[3] the museum disputed that determination. It referred him to a medial panel for reassessment. 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.

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Details

Case: [2009] VSC 419
Decision Date: 30 September 2009

CaseChat Overview and Summary

Smith initiated proceedings against the Commonwealth of Australia in the Federal Court of Australia, seeking judicial review of a decision made by a medial panel. The panel assessed Smith's degree of impairment following an injury, determining that it did not exceed the minimum threshold for serious injury. The panel's assessment found a residual impairment of less than five per cent. Smith contested the decision, arguing that the panel had made significant errors regarding the medical history of the injured person, without providing any reasonable explanation. Additionally, Smith argued that the panel had taken irrelevant considerations into account while ignoring relevant ones.

The court was tasked with determining whether the panel's decision contained jurisdictional errors, specifically whether the panel had taken irrelevant considerations into account, failed to consider relevant considerations, or made errors in the medical history of the injured person. The court examined the Wrongs Act 1958, s 28LZG(4) and the Administrative Law Act 1978, s 10 to assess whether the panel's decision was legally sound.

In its judgment, the court found that the panel had indeed made significant errors in the medical history of the injured person, without providing any reasonable explanation. Furthermore, the panel had taken irrelevant considerations into account while ignoring relevant ones, which constituted a jurisdictional error. The court held that the panel's failure to properly consider the relevant factors and the erroneous medical history resulted in a decision that could not be upheld. The court quashed the panel's decision and remitted the matter for reconsideration.

The court ordered that the panel's decision be quashed and that the matter be remitted for reconsideration, taking into account the errors identified by the court. The court further directed that the panel should properly consider the relevant factors and ensure that the medical history of the injured person was accurately assessed. The court's decision highlighted the importance of ensuring that medial panels properly consider all relevant factors and avoid jurisdictional errors in their decision-making processes.

Orders