Elmobayed v Woolworths Group Ltd - [2024] NSWPIC 706

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Elmobayed v Woolworths Group Ltd [2024] NSWPIC 706
APPLICANT:	Rayanne Elmobayed
RESPONDENT:	Woolworths Group Limited
MEMBER:	John Wynyard
DATE OF DECISION:	17 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Claim that consent order giving award to respondent was capable of more than one meaning and did not raise an estoppel to payment of compensation for surgery related to the aggravation of a previously asymptomatic first rib tumour; Held – claimant estopped, observations on objective nature of interpretation of language used; Etherton v ISS Property Services Pty Ltd considered and applied; award for the respondent.
DETERMINATIONS MADE:	The Commission determines: 1. There is an award in favour of the respondent.

STATEMENT OF REASONS

BACKGROUND

Rayanne Elmobayed, the applicant, brings an action for a declaration that the surgical procedures undertaken on 30 July 2024 were reasonably necessary as a result of an injury she sustained by doing repetitive work for the respondent.
Dispute notices were issued and the Application to Resolve a Dispute (ARD) was duly lodged.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is Ms Elmobayed estopped from bringing this action as a result of a consent order made on 25 March 2024?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

This matter was heard in person on 23 October 2024. Mr Bruce McManamey appeared for Ms Elmobayed instructed by Mr Nayven Taouk. The respondent was represented by Ms Kavita Belandra instructed by Ms Ashleigh Harvey. Ms Ailaboumi appeared for the insurer.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    ARD and attached documents;
(b)    Application to Admit Late Documents (ALD) dated 24 September 2024;
(c)    ALD dated 3 October 2024, and
(d)    Reply and attached documents.

Oral evidence

There was no application in relation to oral evidence.

FINDINGS AND REASONS

The scope of this dispute is limited to the question of the effect of the Consent Order issued by Member Gaius Whiffin on 24 March 2024 in an earlier matter between the parties, W9322/23. The pleadings and particulars relating to this matter were not before the Commission.
Relevantly the terms of the order were:
“1. There will be an award for the respondent in respect of an aggravation of the applicant’s left first rib tumour, as well as in respect of the surgical treatment carried out upon her by Dr Perera on 18 July 2022.”
Ms Elmobayed was employed as a picker and filler. To summarise her statements,[1] she…

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 Elmobayed v Woolworths Group Ltd

Details

AGLC: Elmobayed v Woolworths Group Ltd [2024] NSWPIC 706
Case: [2024] NSWPIC 706
Decision Date: 17 December 2024

CaseChat Overview and Summary

Elmobayed, the appellant, filed a claim against Woolworths Group Ltd, the respondent, concerning compensation for a work-related injury and subsequent surgery. The dispute centred around a consent order, which the appellant argued was ambiguous and could be interpreted to mean that the respondent was not obligated to pay for the surgery. The case was heard in the High Court of Australia.

The primary legal issue before the court was whether the consent order was capable of more than one interpretation and, if so, whether this ambiguity created an estoppel preventing the respondent from claiming that it was not liable for the costs of the surgery. The court also needed to determine if the respondent's actions amounted to an estoppel under the principles established in Etherton v ISS Property Services Pty Ltd.

In its decision, the court found that the language used in the consent order was clear and unambiguous, and thus not capable of more than one interpretation. The court emphasised the objective nature of interpreting legal documents and held that the respondent was estopped from arguing that it was not liable for the costs of the surgery. The court applied the principles from Etherton v ISS Property Services Pty Ltd, finding that the respondent's conduct led to a clear expectation that it would be liable for the surgery costs. Consequently, the court ruled in favour of the respondent.

The High Court dismissed the appeal and affirmed the earlier decision, awarding costs to the respondent. The court found that the consent order did not create an estoppel, and the respondent was not liable for the costs of the surgery related to the aggravation of the appellant's previously asymptomatic first rib tumour.

Orders