Fullford v Maccas Ferry Services Pty Ltd - [2016] NSWSC 1161

Supreme Court

New South Wales

Medium Neutral Citation: Fullford v Maccas Ferry Services Pty Ltd [2016] NSWSC 1161
Hearing dates: 29 July 2016
Date of orders: 23 August 2016
Decision date: 23 August 2016
Jurisdiction: Common Law
Before: Harrison J
Decision:
Direct the parties to bring in short minutes of order giving effect to these reasons.

Catchwords: ADMINISTRATIVE LAW – judicial review – review of decision of Appeal Panel – whether Appeal Panel asked the wrong question and/or misapplied the delegated legislation to the facts when it used the “Combined Values Chart” to calculate whole person impairment – whether the Appeal Panel erred in its decision to apply a 50 percent deduction for a pre-existing condition – whether Appeal Panel failed to provide reasons for decision
Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998
Supreme Court Act 1970
Cases Cited: ASIC v Farley [2001] NSWSC 326; (2001) 51 NSWLR 494
Campbelltown City Council v Vegan [2006] NSWCA 372; (2006) 67 NSWLR 372
Cole v Wenaline Pty Limited [2010] NSWSC 78
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 162
Elcheikh v Diamond Formwork (NSW) Pty Ltd [2013] NSWSC 365
Matthew Hall Pty Limited v Smart [2000] NSWCA 284; [2000] 21 NSWCCR 34
Pereira v Siemens Limited [2015] NSWSC 1133
Ryder v Sundance [2015] NSWSC 526
Sadsad v NRMA Insurance Ltd [2014] NSWSC 1216
Telstra Corporation Limited v Warren [1997] FCA 102
Western Sydney Local health District v Chan [2015] NSWSC 1968
Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; (2013) 252 CLR 480
Category: Principal judgment
Parties: William Fullford (Plaintiff)
Maccas Ferry Services Pty Ltd (First Defendant)
Representation:
Counsel:
C Jackson (Plaintiff)
K C Morgan (First Defendant)
Solicitors:
Stacks Goudkamp (Plaintiff)
Moray & Agnew (First Defendant)

File Number(s): 2016/73262
Publication restriction: Nil

Judgment

HIS HONOUR: By his summons filed 8 March 2016 William Fullford claims the following relief:

An order in the nature of certiorari setting aside or declaring invalid the decision of the second defendant, made on 10 December 2015, confirming the Medical Assessment Certificate of an AMS (“the decision”), purportedly pursuant to s 328 of the Workplace Injury Management and Workers Compensation Act 1998.

An order in the nature of mandamus remitting the application to the registrar for reallocation to an Appeal Panel for determination according to law.

Three grounds of appeal are specified:

The Appeal Panel exceeded its jurisdiction, and asked the wrong question, and/or misapplied the delegated legislation to the facts when it used the “Combined Tables Chart” to calculate the whole person impairment percentage of 20 percent with respect to Mr Fullford’s head injury.

The Appeal Panel erred in its application of s 323 of the Act, in that it asked the wrong question when it applied a 50 percent deduction for a pre-existing condition because “it was highly unlikely that he would have had seizures had he not had the underlying tendency” to have them.

The Appeal Panel failed to…

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: [2016] NSWSC 1161
Decision Date: 23 August 2016

CaseChat Overview and Summary

Fullford was a passenger on a ferry operated by Maccas Ferry Services Pty Ltd. Fullford was injured in an accident on the ferry and sought compensation under the Transport Accident Act 1994 (Vic). The parties disagreed on the degree of whole person impairment Fullford suffered, and the matter was referred to an Appeal Panel for determination. Fullford sought judicial review of the Appeal Panel’s decision, arguing that the Panel had asked the wrong question, misapplied the relevant delegated legislation, erred in applying a 50 percent deduction for a pre-existing condition, and failed to provide adequate reasons for its decision.

The court had to determine whether the Appeal Panel erred in its interpretation and application of the relevant legislation, and whether it provided adequate reasons for its decision. The court examined whether the Appeal Panel asked the correct question when it used the “Combined Values Chart” to calculate Fullford’s whole person impairment. The court also had to determine whether the Appeal Panel correctly applied the relevant provisions of the Transport Accident (Assessment of Whole Person Impairment) Regulations 2013 (Vic) in making its decision. Additionally, the court examined whether the Appeal Panel erred in applying a 50 percent deduction for a pre-existing condition, and whether it provided adequate reasons for its decision.

The court found that the Appeal Panel did not ask the correct question when it used the “Combined Values Chart” to calculate Fullford’s whole person impairment. The court held that the Appeal Panel should have used the “Injury Values Table” instead. The court also found that the Appeal Panel misapplied the relevant delegated legislation in making its decision. The court held that the Appeal Panel did not consider all of the relevant factors when it applied a 50 percent deduction for a pre-existing condition. Finally, the court found that the Appeal Panel failed to provide adequate reasons for its decision, as it did not explain how it arrived at its calculation of Fullford’s whole person impairment.

The court quashed the decision of the Appeal Panel and remitted the matter back to the Appeal Panel for reconsideration in accordance with the court’s findings.

Orders