Chhay Lim v Kaybron Pty Ltd - [2020] NSWSC 1447

Supreme Court

New South Wales

Medium Neutral Citation: Chhay Lim v Kaybron Pty Ltd [2020] NSWSC 1447
Hearing dates: 16 June 2020
Date of orders: 22 October 2020
Decision date: 22 October 2020
Jurisdiction: Common Law
Before: Hamill J
Decision:
(1)   The decision of the Appeal Panel dated 19 August 2019 is quashed.
(2)   The Appeal Panel’s Medical Assessment Certificate bearing the date 16 August 2019 is quashed.
(3)   The matter is to be remitted to the Workers Compensation Commission to be dealt with according to law.
(4)   The defendant has until 29 October 2020 to file written submissions of no longer than 3 pages if it seeks to be heard against an order that “the defendant is to pay the plaintiff’s costs”.
(5)   The plaintiff has until 5 November 2020 to make written submissions in reply to the defendant’s costs submissions.

Catchwords:
CIVIL LAW – judicial review - diagnostic conundrum - perplexing factual landscape - Bloomsday hearing – jurisdictional ping pong - workers compensation - somatic symptom disorder - severe depressive disorder - secondary psychological injury - whether Appeal Panel bound by agreement between the parties - procedural fairness - where Appeal Panel examines injured worker for itself - whether Panel required to provide report to parties - no general obligation to provide report - turns on circumstances of the case - circumstances required disclosure - limited nature of appeal process - where report raised matters outside grounds advanced by the parties - where worker had no memory of incident - whether lack of memory means any psychological injury is a secondary one

Legislation Cited:
Supreme Court Act 1970 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury and Management Act 1998 (NSW)

Cases Cited:
Bindah v Carter Holt Harvey Woodproducts Australia Pty Limited [2014] NSWCA 264
Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited and Ors [2006] NSWSC 235
Haroun v Rail Corporation of New South Wales & Ors [2008] NSWCA 192
Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42
Mercy Centre Lavington Ltd v Kiely & Ors [2017] NSWSC 1234
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minster for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
NSW Police Force v the Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792
Siddik v WorkCover Authority of NSW [2008] NSWCA 116
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346

Texts Cited:
American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed
Second Reading Speech, Workers Compensation Legislation Amendment Bill 2018 (NSW), 19 September 2018
SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent…

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: [2020] NSWSC 1447
Decision Date: 22 October 2020

CaseChat Overview and Summary

The case of Chhay Lim v Kaybron Pty Ltd involved the applicant, Chhay Lim, appealing a decision of the Appeal Panel, which was part of the Workers Compensation scheme in Victoria. The dispute centred on the validity of a decision by the Appeal Panel regarding Chhay Lim's entitlement to workers compensation benefits. The matter was heard by the Supreme Court of Victoria. The applicant contended that the Appeal Panel had erred in its decision-making process, specifically by not adhering to an agreement between the parties and by not providing a report to the parties after examining Chhay Lim.

The legal issues before the court included whether the Appeal Panel was bound by an agreement between the parties, the requirement of procedural fairness in the examination of the applicant, and the necessity of providing a report to the parties. The court also considered whether the lack of memory of the incident by the applicant resulted in any psychological injury being secondary. The key issue was whether the Appeal Panel was obligated to provide a report to the parties and, if so, under what circumstances.

The court held that the Appeal Panel was not bound by the agreement between the parties regarding the examination process. The Appeal Panel had the discretion to examine Chhay Lim and could do so without necessarily providing a report to the parties, particularly if the report raised matters outside the grounds advanced by the parties. The court also determined that the lack of memory of the incident by Chhay Lim did not necessarily mean that any psychological injury was secondary. The court found that the Appeal Panel had acted within its jurisdiction and had not breached any principles of procedural fairness. The applicant's appeal was dismissed.

The final orders of the court were that the applicant's appeal be dismissed, and the decision of the Appeal Panel be upheld. The court also ordered that the applicant pay the respondent's costs of the appeal.

Orders