Ibrahim v Sellers Fabrics Pty Ltd - [2023] NSWSC 1320

Supreme Court

New South Wales

Medium Neutral Citation: Ibrahim v Sellers Fabrics Pty Ltd [2023] NSWSC 1320
Hearing dates: 20 September 2023
Date of orders: 3 November 2023
Decision date: 03 November 2023
Jurisdiction: Common Law - Administrative Law
Before: Harrison AsJ
Decision:
(1) The decision of the Appeal Panel is set aside.
(2) The matter is referred to the President, Personal Injury Commission to be dealt with according to law.
(3) The first defendant is to pay the plaintiff’s costs.

Catchwords:
JUDICAL REVIEW – whole person impairment – Type 2 diabetes – pre-existing abnormality or condition – genetic predisposition or susceptibility – deduction – ground of review constituting an error of law – referral to the President, Personal Injury Commission.

Legislation Cited:
Disability Discrimination Act 1992 (Cth) ss 15 and 24
Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 328

Cases Cited:
Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57
Cole v Wenaline Pty Limited [2010] NSWSC 78 Cullen v Woodbrae Holdings Pty Ltd [2015] NSWSC 1416
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 214 CLR 496
Ryder v Sundance Bakehouse [2015] NSWSC 526
State of New South Wales v Rattenbury [2015] NSWWCCPD 46

Category: Procedural rulings
Parties: Ahmed Ali Ibrahim (Plaintiff)
Sellers Fabric Pty Ltd (First defendant)
Deborah Moore, David Gorman and Margaret Gibson as a medical appeal panel constituted under s 328 of the workplace injury management and workers compensation act 1998 (NSW) (Second defendant)
President, Personal Injury Commission (Third defendant)
Kathryn Camp (Fourth defendant)
Representation:
Counsel:
Ian Davidson SC and Philippa Clingan (Plaintiff)
Rankin Ellison Lawyers (First defendant)
Solicitors:
Buttar, Caldwell & Co (Plaintiff).
Rankin Ellison Lawyers (First defendant)

File Number(s): 2023/63482

JUDGMENT

This is a review of a decision of the medical appeal panel of the personal injury commission, a delegate.
The plaintiff is Ahmed Ali Ibrahim. The first defendant is Sellers Fabric Pty Ltd (‘the employer’). The second defendant is Deborah Moore, David Gorman and Margaret Gibson as a medical appeal panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (‘the Act’). The third defendant is the President of the Personal Injury Commission (‘PIC’). The fourth defendant is Kathryn Camp.
The employer has consented to the orders sought. The second defendant (‘the Appeal Panel’) and the third defendant have filed submitting appearances. That means there is no contradictor. Nevertheless, this Court has an obligation to satisfy itself as to whether these grounds of review constitute errors of law or jurisdictional errors on the face of the record and if so whether the matter should be remitted to the personal injury commission to be determined according to law.
The consent orders between the plaintiff and the employer are:

The plaintiff’s application to appeal against a decision of a medical assessor, dated 24 August 2022, is remitted to the third defendant for referral to an appeal panel, differently constituted, to hear the appeal according to law.

The first defendant [the employed] is to pay the…

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: [2023] NSWSC 1320
Decision Date: 03 November 2023

CaseChat Overview and Summary

The case of Ibrahim v Sellers Fabrics Pty Ltd involved a claim for compensation for a work-related injury. The plaintiff, Ibrahim, sought to have his whole person impairment assessed by the Personal Injury Commission, arguing that his Type 2 diabetes was not a pre-existing condition but rather an aggravation of a genetic predisposition. Sellers Fabrics Pty Ltd contested this, asserting that the plaintiff's diabetes was indeed a pre-existing condition that should be taken into account in determining the impairment percentage. The matter was brought before the court for judicial review, focusing on whether the tribunal had erred in its assessment of the plaintiff's condition.

The central legal issue was whether the tribunal had correctly interpreted and applied the relevant legislative provisions in determining the plaintiff's whole person impairment. Specifically, the court had to consider whether the tribunal's finding that the plaintiff's Type 2 diabetes constituted a pre-existing condition or abnormality, as opposed to an aggravation of a genetic predisposition, was legally sound. This required an examination of the definitions and criteria for categorising conditions under the applicable legislation, as well as the tribunal's application of these criteria to the facts of the case.

The court found that the tribunal had indeed erred in its interpretation of the legislation, leading to an incorrect assessment of the plaintiff's whole person impairment. The tribunal had failed to adequately consider the distinction between a pre-existing condition and an aggravation of a genetic predisposition, leading to an inappropriate deduction in the impairment percentage. As a result, the court granted the application for judicial review and referred the matter back to the Personal Injury Commission for reconsideration, with specific directions to address the legal error identified. This decision underscores the importance of correctly interpreting and applying legislative provisions in personal injury cases, particularly when it comes to determining the impact of pre-existing conditions on the assessment of impairment.

Orders