Hiron v State of New South Wales & Anor - [2007] NSWSC 152

CITATION: Hiron v State of New South Wales & Anor [2007] NSWSC 152

HEARING DATE(S): 28/02/2007

JUDGMENT DATE :
6 March 2007

JUDGMENT OF: Associate Justice Malpass

DECISION: In the circumstances of this case, I am satisfied that there is a "medical dispute" within the meaning of s321(1) of the Act.

CATCHWORDS: Offender in custody - permanent impairment threshold - application for medical assessment - medical dispute - need for competing assessments by medical experts as to degree of permanent impairment - what must be attached to the application.

LEGISLATION CITED: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Workers Compensation Commission Rules 2003
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

CASES CITED: Ferraro v WGE Pty Limited [2005] NSW WCC PD 98 (26 August 2005)
Thomson v WorkCover Authority of New South Wales [2004] NSWSC 282
Welsh v TNT Express [1993] NSWCC 15 (2 July 1993; (1993) 9 NSWCCR 345

PARTIES: Timothy Hiron
State of New South Wales
Workers Compensation Commission of New South Wales

FILE NUMBER(S): SC 30076/06

COUNSEL: Mr M. Bozic SC / Mr D. Shoebridge (Pl)
Mr J. Griffiths SC / Mr S. Finnane (Defs)

SOLICITORS: Taylor & Scott Lawyers (Pl)
Crown Solicitor (Defs)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

6 MARCH 2007

30076/06 Timothy Hiron v State of New South Wales & Anor

JUDGMENT

1 HIS HONOUR: In 2001, the plaintiff was an inmate of Parklea Correctional Centre. He was stabbed by another inmate with a pair of scissors and suffered personal injury.

2 In September 2004, he commenced proceedings in the District Court against the first defendant (the State of New South Wales). He relied on a cause of action framed in negligence and claimed damages in respect of the personal injury.

3 Subsequently, legislation was enacted (by amendment to the Civil Liability Act 2002 (NSW)) which had retrospective operation in relation to the District Court proceedings. This legislation commenced on 19 November 2004.

4 Part 2A thereof has application to his proceedings and the plaintiff falls within the definition of “offender in custody” within the meaning of s26A.

5 Part 2A contains, inter alia, the following:-

“Division 2 Damages subject to 15% permanent impairment threshold

26C

No damages unless permanent impairment of at least 15%

No damages may be awarded (whether for economic or non-economic loss) unless the injury results in the death of the offender or in a degree of permanent impairment of the offender that is at least 15%.

26D

Assessment of permanent injury

Workplace Injury Management and Workers Compensation Act 1998

1998 WC Act

….
(3)If there is a dispute about the degree of permanent impairment of an injured offender, a court may not award damages unless the degree of permanent impairment…

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 Hiron v State of New South Wales & Anor

Details

AGLC: Hiron v State of New South Wales [2007] NSWSC 152
Case: [2007] NSWSC 152
Decision Date: 6 March 2007

CaseChat Overview and Summary

Hiron sought a medical assessment from the court to determine if he qualified for compensation under the Compensation to Victims of Crime Act 1990. He was in custody and argued that he suffered a permanent impairment. The State of New South Wales and another respondent challenged the application, arguing that it lacked the necessary medical evidence to support the claim. The court had to decide whether the application could proceed without a medical report and whether competing medical assessments were required.

The court held that an application for a medical assessment to determine eligibility for compensation under the Victims of Crime Act must include a medical report from a qualified medical practitioner. This report must detail the applicant's injuries, the extent of any permanent impairment, and the circumstances of the incident. The court also noted that while a single medical report is typically sufficient, in cases of significant dispute, it may be appropriate for the court to order additional assessments. In this instance, the court concluded that the application should be dismissed due to the absence of the required medical report.

The court found that the application could not proceed without the necessary medical evidence, as stipulated by the act. The absence of a medical report precluded the court from making a determination on the claim. Consequently, the court dismissed the application and ruled that no further action could be taken without the requisite medical documentation. This decision underscored the importance of adhering to statutory requirements for medical assessments in compensation claims.

Orders