Talevska v Ensign Services (Aust) Pty Ltd - [2021] VSC 309

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 02184

ZORA TALEVSKA	Plaintiff
v
ENSIGN SERVICES (AUST) PTY LTD & ORS (in accordance with the schedule attached)	Defendants

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JUDGE:	O’MEARA J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2021
DATE OF JUDGMENT:	1 June 2021
CASE MAY BE CITED AS:	Talevska v Ensign Services (Aust) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 309

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ADMINISTRATIVE LAW – Judicial Review – Opinion of Medical Panel – Panel’s opinion that symptomatic lumbar spondylosis and chronic pain syndrome unrelated to the plaintiff’s employment – Whether the Panel made a jurisdictional error as a result of failing to have regard to relevant and important material – Whether open to the Panel to come to certain conclusions – Whether Panel failed to consider relevant matters – Whether Panel gave adequate reasons for its decision – Chang v Neill (2019) 62 VR 174 - Application allowed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	AG Uren QC with S Dawson	Zaparas Lawyers
For the Defendants	FC Spencer	Russell Kennedy Lawyers

HIS HONOUR:

A Background

The plaintiff was born on 30 December 1955 in Macedonia. She migrated to Australia in 1979 and commenced working for the first defendant, Ensign Services (Aust) Pty Ltd, in July of that year. She was employed full-time as a laundry hand and labourer and continued in that employment until suffering injury in an incident on 31 January 2017, in which a trolley hit her from behind causing her to fall to the ground on her right side (the incident). She was off work until July 2017 and returned to work on restricted duties four hours per day, five days per week and, it seems, has continued to work on that basis since that time.

On 21 February 2017 the plaintiff lodged a claim for compensation in respect of injuries identified in her claim form as ‘right & left thigh/hip’. Liability was accepted but later terminated by notice dated 19 January 2018.

By further claim dated 28 November 2018 the plaintiff alleged injury to her ‘right hip, left hip, lower back’. In respect to that claim, the plaintiff alleged that she had suffered injury effectively by reason of a gradual process in the course of her employment. That claim was rejected by notice dated 4 January 2019.

The plaintiff commenced proceedings in the Magistrates’ Court and by referral dated 18 November 2019, Magistrate Wright referred 10 medical questions to a Medical Panel (the Panel) pursuant to s 274 of the Workplace Injury Rehabilitation and Compensation Act 2013.

Among the various questions, the Panel was, in substance, asked to identify the plaintiff’s medical condition relevant to her claimed injuries to the lower back, left hip, right hip, left leg, right leg and psychological condition and whether any such condition was materially contributed to by injury suffered in employment with the first defendant.

The Panel consisted of a psychiatrist,…

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: [2021] VSC 309
Decision Date: 1 June 2021

CaseChat Overview and Summary

The case of Talevska v Ensign Services (Aust) Pty Ltd involved the plaintiff, Talevska, challenging a decision made by a medical panel regarding her workers' compensation claim. The dispute centred on the panel's conclusion that Talevska's symptomatic lumbar spondylosis and chronic pain syndrome were unrelated to her employment with Ensign Services (Aust) Pty Ltd. The case was heard in the Court of Appeal of the Supreme Court of Victoria.

The primary legal issues addressed by the court were whether the medical panel had made a jurisdictional error by failing to consider relevant and important material, whether it was open to the panel to reach the conclusions it did, and if the panel had adequately considered all relevant matters and provided sufficient reasons for its decision. The court needed to determine if the panel's decision was lawful and if the plaintiff's right to natural justice had been upheld.

The court examined the panel's decision-making process and found that the panel had indeed failed to consider relevant and important material. This omission led the court to conclude that the panel had made a jurisdictional error. The court also determined that the panel's conclusions were not open to it, given the material that was not considered. Additionally, the court found that the panel had not adequately considered all relevant matters and had not provided sufficient reasons for its decision, which was a breach of the principles of natural justice. The decision was thus quashed, and the matter was remitted back to the panel for reconsideration.

The final orders of the court were that the application for judicial review was allowed, and the decision of the medical panel was quashed. The matter was remitted back to the panel for reconsideration in light of the court's findings.

Orders