Ventrice v Riva Plaster Pty Ltd

[2008] VSC 415

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No.  6370 of 2008

MICHAEL VENTRICE	Plaintiff
v
RIVA PLASTER PTY LTD AND ORS	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2008
DATE OF JUDGMENT:	14 October 2008
CASE MAY BE CITED AS:	Ventrice v Riva Plaster Pty Ltd and Ors
MEDIUM NEUTRAL CITATION:	[2008] VSC 415

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ADMINISTRATIVE LAW – Review of medical panel – Error of law – Statutory scheme – Adequacy of reasons.

ACCIDENT COMPENSATION – Review of medical panel – Definition of “injury” – Significant contributing factor – Accident Compensation Act 1985 ss 5(1), 5(1B), 45 and 134AB.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T.V. Hurley	Nowicki Carbone
For the First and Second Defendants	Mr J.L. Parrish SC with Mr M. Fleming	Herbert Geer
For the Third to Sixth Defendants	Mr P. Rowell	Monahan & Rowell

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

The reasons of the medical panel................................................................................................... 5

The relevant principles..................................................................................................................... 7

Ground 1: failing to properly consider the definition of “injury”........................................... 8

Ground 2: failure to take account of matters referred to in s 5(1B) of the Act..................... 10

Ground 3: were the reasons inadequate?.................................................................................... 13

The modified Ground 5:  Was the answer to question 3(a) wrong?....................................... 19

Other matters.................................................................................................................................... 20

Conclusion......................................................................................................................................... 20

HIS HONOUR:

Introduction

1. Mr Michal Ventrice, the plaintiff, was born on 6 October 1944 and is now 64 years of age. Between 24 November 1996 and 2 February 2005 he was employed as a labourer and plasterer by Riva Plaster Pty Ltd, the first defendant. Mr Ventrice first worked as a labourer and plasterer in 1969 and worked in these capacities until he was retrenched by the first defendant on 2 February 2005. On 20 April 2006 he commenced a proceeding in the County Court seeking leave under s 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to commence a proceeding for damages for injuries arising out of or in the course of or due to the nature of his employment with the first defendant after 20 October 1999.  Paragraphs 5 and 6 of the plaintiff’s proposed statement of claim provide:[1]

   [1]Omitting “injuries that are not pressed”: see the affidavit of Dean Churilov sworn 27 May 2008 on behalf of the plaintiff herein

“5.Over the course of his employment, and in particular in or about November 2001, the plaintiff sustained an injury to his lower back with referred symptoms to the right leg, injury to the right shoulder and arm … .

6.By reason of his employment the plaintiff was injured and has suffered loss and damage.

Particulars of Injuries

(a)Injury to the lower back, with referred symptoms to the right leg;

(b)injury to the right shoulder and arm;

…“

1. In the course of the County Court proceeding seeking leave to commence a proceeding for damages, the plaintiff sought the referral of certain medical questions to a medical panel pursuant to s 45(1)(b) of the Act.[2]  On 13 February 2008…