Bos v East Coast Security Dogs Pty Ltd - [2022] NSWSC 1282

Supreme Court

New South Wales

Medium Neutral Citation: Bos v East Coast Security Dogs Pty Ltd [2022] NSWSC 1282
Hearing dates: 3 August 2022
Date of orders: 23 September 2022
Decision date: 23 September 2022
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
(1) The amended summons filed 10 February 2022 is dismissed.
(2) The decision of the Appeal Panel dated 25 August 2021 is affirmed.
(3) The plaintiff is to pay the first defendant’s costs on an ordinary basis.

Catchwords:
ADMINISTRATIVE LAW – Judicial review – Workplace injury – Workers Injury Management and Workers Compensation Act 1998 (NSW) – Assessment of whole person impairment – Section 323 deduction – Whether Medical Assessor correctly applied the ‘four step’ process as described in Ryder v Sundance Bakehouse [2015] NSWSC 526 – Dismissed

Legislation Cited:
Supreme Court Act 1970 (NSW) s 69
Workers Compensation Act 1987 (NSW) s 65A
Workplace Injury Management and Workers Compensation Act 1998 (NSW) ss 322, 323, 325, 326, 227, 328

Cases Cited:
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Cole v Wenaline Pty Limited [2010] NSWSC 78
Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365
Government Cleaning Service v Ellul (1996) 13 NSW CCR 344
Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 939
Marks v Secretary, Department of Communities and Justice (No 2) [2021] NSWSC 616
Matthew Hall Pty Ltd v Smart (2000) 21 NSWCCR 34, [2000] NSWCA 284
McGinn v Ashfield Council [2012] NSWCA 238
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Ryder v Sundance Bakehouse [2015] NSWSC 526
Secretary, NSW Department of Education v Johnson [2019] NSWCA 321
Walsh v Parramatta City Council and Alam (2007)161 LGERA 118; [2007] NSWLEC 255
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; 303 ALR 64

Category: Principal judgment
Parties: Simon Bos (Plaintiff)
East Coast Security Dogs Pty Ltd (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
Member Marshal Douglas and Drs Patrick Morris and Douglas Andrews in their capacity as an Appeal Panel (Third Defendant)
Representation:
Counsel:
E Romaniuk SC with E Grotte (Plaintiff)
C Roberts
Solicitors:
MLB Lawyers and Associates (Plaintiff)
Gair Legal (First Defendant)

File Number(s): 2021/335525
Publication restriction: Nil

Judgment

HER HONOUR: This matter involves a Judicial Review of a decision of a Medical Appeal Panel of the Personal Injury Commission. The main point of contention is the deduction made by a Medical Assessor pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“Workplace Injury Act”).
The plaintiff is Simon Bos. The first defendant is East Coast Security Dogs Pty Ltd (“the employer”). The second defendant is the President of the Personal Injury Commission of New South Wales. The third defendant is Member Marshal Douglas and Drs Patrick Morris and Douglas Andrews in their capacity as an Appeal Panel (“the Appeal Panel”). The second…

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: [2022] NSWSC 1282
Decision Date: 23 September 2022

CaseChat Overview and Summary

Bos commenced proceedings against East Coast Security Dogs Pty Ltd in the Civil and Administrative Division of the Supreme Court of New South Wales. The dispute arose out of a workplace injury sustained by Bos during the course of his employment with East Coast Security Dogs. The primary issue before the court was whether the Medical Assessor had correctly applied the 'four step' process outlined in Ryder v Sundance Bakehouse [2015] NSWSC 526 in assessing the whole person impairment for which Bos was entitled to compensation. The assessment involved determining the extent to which Bos's pre-existing conditions impacted the overall assessment of his injury and the appropriate application of a section 323 deduction.

The court examined the relevant statutory provisions under the Workers Injury Management and Workers Compensation Act 1998 (NSW) and the established principles of administrative law relevant to judicial review. The 'four step' process, which includes determining the extent of impairment, the extent of contribution of the pre-existing condition, the extent of contribution of the injury, and the application of the deduction, was central to the court's analysis. The court assessed whether the Medical Assessor had properly applied this process and whether the decision was legally sound. Ultimately, the court concluded that the Medical Assessor had correctly applied the 'four step' process and the decision was not subject to judicial review.

In its judgment, the court held that the Medical Assessor's decision was based on a correct application of the relevant statutory provisions and was not flawed in a way that warranted intervention by the court. The court dismissed the application for judicial review and upheld the decision of the Medical Assessor regarding the whole person impairment and the section 323 deduction. The court found that there was no error in the decision-making process and that the assessor had appropriately considered all relevant factors in accordance with the legislative framework.

Orders