William James McVey (A Person Under A Disability Who Brings This Proceeding BY His Litigation Guardian) v GJ & LJ Smith Pty Ltd

[2015] HCASL 111

WILLIAM JAMES MCVEY (A PERSON UNDER A DISABILITY WHO BRINGS THIS PROCEEDING BY HIS LITIGATION GUARDIAN)

v

GJ & LJ SMITH PTY LTD & ORS

[2015] HCASL 111
M140/2014

1. The applicant, who suffered from schizophrenia, was injured in the course of his employment with the first respondent.  A medical panel assessing his physical injuries for a workers' compensation claim concluded that the injury had exacerbated his schizophrenia and contributed to his psychiatric impairment.  A second medical panel assessing a subsequent claim for psychiatric impairment ("the second panel") concluded that, as the exacerbation of the schizophrenia had since resolved, the injury had not caused continuing psychiatric impairment.

2. On 21 May 2014, the Supreme Court of Victoria (Garde J) held no error of law was made by the second panel.  His Honour considered that the second panel rightly decided that the pre-existing schizophrenia had to be disregarded when assessing the degree of impairment resulting from the applicant's injury.  Garde J also found that the second panel was not required to adopt the opinion of the first medical panel because the questions asked of each were substantially different, and the lapse of time meant the opinions were not inconsistent.

3. The Court of Appeal of the Supreme Court of Victoria (Santamaria, Beach and Kyrou JJA), on 21 November 2014, dismissed an appeal.  The Court held that the second panel did not make any error of law.  Their Honours agreed with the primary judge that the second panel was not bound by the opinion of the first panel and was obliged to take into account changes in the applicant's circumstances.  The decision of the second panel was in accordance with the requirements of statute and the decision in Wingfoot Australia Partners Pty Ltd v Kocak[1].

   [1] (2013) 252 CLR 480; [2013] HCA 43.

4. The applicant now seeks special leave to appeal to this Court.  The decisions of the Courts below are not attended by sufficient doubt to warrant a grant of special leave.  Special leave to appeal is refused.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

S.M. Kiefel
18 June 2015 P.A. Keane