Cortese v Cumberland Ford Pty Ltd - [2011] NSWSC 1260

Supreme Court

New South Wales

Medium Neutral Citation: Cortese v Cumberland Ford Pty Ltd & Ors [2011] NSWSC 1260
Hearing dates: 21 October 2011
Decision date: 27 October 2011
Jurisdiction: Common Law
Before: Adamson J
Decision:
Further Amended Summons dismissed with costs.

Catchwords: WORKERS COMPENSATION - Assessment of whole person impairment - Plaintiff seeks orders that the decision of an Appeal Panel in relation to a medical dispute be quashed - meaning of "additional information" in s 327 - relief under s 69 of Supreme Court Act - construction of reasons of an administrative decision maker - Court not to assume role of decision maker.
Legislation Cited: - Supreme Court Act 1970 (NSW) - s 69
- Workplace Injury Management and Workers Compensation Act 1998 (NSW) - s 319, s 327(3)
Cases Cited: - Collector of Customs v Pozzalanic Enterprises Pty Ltd (1993) 43 FCR 280
- Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259
- Pitsonis v Registrar of the Workers Compensation Commission & Anor [2008] NSWCA 88 ((2008) 73 NSWLR 366)
Category: Principal judgment
Parties: - David Cortese (Plaintiff)
- Cumberland Ford Pty Ltd (First Defendant)
- An Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Second Defendant)
- The Registrar of the Workers Compensation Commission (Third Defendant)
Representation: Counsel:
J. Jobson (Plaintiff)
P. Perry (First Defendant)
Submitting Appearances filed for Second and Third Defendants
Solicitors:
Gerard Malouf & Partners (Plaintiff)
Stephen Lee Legal (First Defendant)
I.V. Knight, Crown Solicitor (Second and Third Defendants)

File Number(s): 2011/012117

Judgment

This matter comes before me by reason of this Court's jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). The Plaintiff seeks an order that the decision of the Appeal Panel in relation to a medical dispute certified on 6July 2010 be quashed and consequential orders. The circumstances in which the proceedings are brought are as follows.

On 10 December 2004, the Plaintiff suffered an injury to his cervical spine ( the Injury ). On 20 December 2004, he was examined by Dr Maniam who recorded positive neurological signs in the Plaintiff's left upper limb. The Plaintiff was examined again by Dr Maniam in October 2007, by Dr Nair on 24 June 2008 and by Dr Bodel on 18 August 2009. He was, for present purposes, most recently examined on 3 November 2009 by Dr Matheson.

On 17 June 2010 the medical dispute between the Plaintiff and the Defendants (his employer and his workers compensation insurer respectively) as to the assessment of the whole person impairment affecting the Plaintiff's cervical spine as a consequence of the Injury was referred to an Approved Medical Specialist ( AMS ) within the meaning of s 319 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the Act ).

Relevantly, the Plaintiff contended that he ought be classified DRE (Diagnosis Related Estimates) Cervical Category III ( DRE III ) and the Defendants contended that he…

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 Cortese v Cumberland Ford Pty Ltd

Details

AGLC: Cortese v Cumberland Ford Pty Ltd [2011] NSWSC 1260
Case: [2011] NSWSC 1260
Decision Date: 27 October 2011

CaseChat Overview and Summary

The plaintiff, Cortese, sought to have the decision of an Appeal Panel quashed, which had ruled on a medical dispute regarding whole person impairment. The defendant, Cumberland Ford Pty Ltd, was involved in the dispute. The case was heard in the Supreme Court of New South Wales. The plaintiff contended that the Appeal Panel failed to consider relevant medical evidence, which would have resulted in a different assessment of whole person impairment. The defendant argued that the Appeal Panel's decision was correctly made and that the court should not interfere with the decision.

The court considered the meaning of "additional information" in section 327 of the relevant legislation and the appropriate relief under section 69 of the Supreme Court Act. The court held that it could not assume the role of the decision maker and that it was not appropriate to interfere with the Appeal Panel's decision. The court found that the Appeal Panel had considered the relevant medical evidence and had made a decision that was not unreasonable.

The court emphasised that it was not the role of the court to determine the merits of the dispute, but rather to review the process by which the decision was made. The court held that the Appeal Panel had followed the correct process and that there was no error in the decision. The court found that the plaintiff was not entitled to the relief sought and dismissed the application. The court did not make any orders for costs.

Orders