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Vision Precast Pty Ltd v Ferguson

Vision Precast Pty Ltd v Ferguson

Case [2021] VSC 808 8 December 2021

Judicial Review

Statutory Interpretation

Admissibility of Evidence

Natural Justice & Procedural Fairness

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 03198

VISION PRECAST PTY LTD & ANOR (according to the attached Schedule)	Plaintiffs
v
RYAN ANTHONY GEORGE FERGUSON & ORS (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2021
DATE OF JUDGMENT:	8 December 2021
CASE MAY BE CITED AS:	Vision Precast Pty Ltd & Ors v Ferguson & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 808

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ADMINISTRATIVE LAW – Application by the plaintiffs seeking to quash the determination of a medical panel (“Panel”) in relation to its assessment of a claimant’s degree of psychological or psychiatric impairment – Whether the medical panel failed to properly disregard pre-existing and/or unrelated impairment pursuant to s 28LL(3) of the Wrongs Act 1958 (Vic) – City of Melbourne v Neppessen & Ors [2019] VSC 84, referred to – Whether the Panel erred in finding that there is impairment secondary to a physical injury that should be disregarded pursuant to s 28LJ of the Wrongs Act 1958 (Vic) – Whether the Panel should have assessed whether there was no impairment from unrelated causes pursuant to s 28LL(3) of the Wrongs Act 1958 (Vic) - Statutory interpretation – Meaning of the phrase ‘secondary to a physical injury’ – Principles governing the ‘reading in’ of words into a statute – Director of Public Prosecutions v Leys (2012) 44 VR 1, referred to – Whether the Panel’s decision that there was no impairment from unrelated causes was legally unreasonable or lacked an evident and intelligible justification – Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, referred to – Whether any error on the part of the Panel materially affected the Panel’s decision – Sidiqi v Kotsios [2021] VSCA 187, referred to – Chang v Neill (2019) 62 VR 174, referred to – Admissibility of clinical records not before the Panel – Relevant to claim of legal unreasonableness – Mackenzie v Head, Transport for Victoria [2021] VSCA 100 referred to - Allegation of a denial of procedural fairness – No denial of procedural fairness - Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	Mr G A Worth	Colin Biggers & Paisley
For the Second Plaintiff	Mr G A Worth	Sparke Helmore
For the First Defendant	Ms F C Spencer	National Compensation Lawyers
No appearance for the Second to Fourth Defendants

HER HONOUR:

Introduction and background

The plaintiffs in this proceeding are Vision Precast Pty Ltd, the occupier of industrial premises in Brooklyn (‘premises’), and DRW Investments Pty Ltd, the owner of a transport company. The plaintiffs seek to challenge an opinion of a medical panel (‘Panel’) regarding the Panel’s assessment of the psychological and/or psychiatric impairment of the first defendant. The first defendant, Mr Ryan Ferguson (‘claimant’) was at the relevant time a man of 26 who was the owner of a small but flourishing business providing…

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.

Continue reading Vision Precast Pty Ltd v Ferguson

Details

AGLC: Vision Precast Pty Ltd v Ferguson [2021] VSC 808
Case: [2021] VSC 808
Decision Date: 8 December 2021

CaseChat Overview and Summary

Vision Precast Pty Ltd and others filed an application against Ferguson, seeking to overturn the determination of a medical panel regarding the degree of psychological or psychiatric impairment of a claimant. The dispute was heard in the County Court of Victoria. The plaintiffs argued that the panel erred in its assessment of the claimant’s impairment, specifically regarding the consideration of pre-existing and unrelated conditions under section 28LL(3) of the Wrongs Act 1958 (Vic). They further contended that the panel should have disregarded any impairment secondary to a physical injury as per section 28LJ of the Act. The plaintiffs also questioned whether the panel had assessed the absence of impairment from unrelated causes, as required by section 28LL(3) of the Act.

The court had to decide whether the panel had properly disregarded the pre-existing and unrelated impairment, correctly interpreted the statutory phrase "secondary to a physical injury," and assessed the absence of impairment from unrelated causes. Additionally, the court needed to determine if the panel’s decision was legally unreasonable, lacked an intelligible justification, and if any errors materially affected the outcome. The court also examined the admissibility of clinical records not before the panel and allegations of procedural unfairness.

The court found that the panel had properly considered the statutory requirements and had not erred in its assessment. The reasoning was based on the principles of statutory interpretation and the relevant case law. The court held that the phrase "secondary to a physical injury" was correctly interpreted and applied, and that the panel's decision was neither legally unreasonable nor lacked an intelligible justification. The court further concluded that any procedural fairness issues were adequately addressed and that the application was dismissed.

Orders