Iqbal v Hotel Operation Solutions Pty Ltd

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Court of Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Iqbal v Hotel Operation Solutions Pty Ltd [2022] NSWCA 138
Hearing dates: 28 July 2022
Date of orders: 4 August 2022
Decision date: 04 August 2022
Before: Brereton JA at [1];
Mitchelmore JA at [2];
Basten AJA at [3]
Decision:

(1)   Extend time for the filing of the appeal from the decision of the Deputy President of the Personal Injury Commission to 9 March 2022.

(2)   Dismiss the appeal.

(3)   Order that the appellant pay the costs of the first respondent in this Court.

Catchwords:

APPEALS – appeal from determination of Presidential member of the Personal Injury Commission – error-based jurisdiction in reviewing decision of arbitrator – jurisdiction of Court of Appeal – decision in point of law – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353

APPEALS – applicant bearing burden of proof of employment-related injury cannot invert onus by pleading no evidence of pre-existing injury – applicant bearing burden of proof cannot rely on own evidence to assert no evidence of pre-existing injury

WORKERS COMPENSATION – definition of “injury” – “disease” to be given broadest meaning – categorisation of “biological” and “pathological” changes rejected – Workers Compensation Act 1987 (NSW), s 4(b)

Legislation Cited:

Personal Injury Commission Act 2020 (NSW), Sch 1 cl 14D

Supreme Court Act 1970 (NSW), s 69

Workers Compensation Act 1987 (NSW), ss 4, 9A

Workers Compensation Legislation Amendment Act 2012 (NSW), Sch 7[1], [2], [3] Sch 12 cl 20

Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 323, 327, 352, 353

Cases Cited:

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139

Chep Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501

Federal Broom Company Pty Ltd v Semlitch (1964) 110 CLR 626; [1964] HCA 34

Iqbal v Hotel Operation Solutions Pty Ltd [2022] NSWCA 88

Northern NSW Local Health Network v Heggie [2013] NSWCA 255

Workers Compensation Nominal Insurer v Hill [2020] NSW 54

Category:Principal judgment
Parties: Mohammed Javed Iqbal (Appellant)
Hotel Operation Solutions Pty Ltd (Respondent)
Representation:

Counsel:
Ms C Roberts (Respondent)

Solicitors:
Hicksons (Respondent)
File Number(s): 2021/00353147
 Decision under appeal 
Court or tribunal:
Presidential member of Personal Injury Commission
Jurisdiction:
Appeal from arbitrator
Citation:

Iqbal v Hotel Operation Solutions Pty Ltd [2021] NSWPICPD 40

Date of Decision:
15 November 2021
Before:
Deputy President Snell
File Number(s):
A1-6359/20

HEADNOTE

[This headnote is not to be read as part of the judgment]

Between 2008 and 2010, the appellant, Mohammed Iqbal, was an employee of the respondent, Hotel Operation Solutions Pty Ltd, which provided labour hire for hotels.

In October 2010, the appellant reported pain and pins and needles in his right hand and the right side of his neck. In 2012, the appellant obtained CT scans of the cervical and lumbar regions of his spine. The scan of his cervical spine showed disc protrusions with spinal cord compression. In 2016, a neurosurgeon performed an anterior cervical discectomy…

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Details
Case
[2022] NSWCA 138
Decision Date

CaseChat Overview and Summary

The appeal concerned a determination by a Presidential member of the Personal Injury Commission regarding a claim for workers' compensation. The applicant, Mr. Iqbal, appealed to the Court of Appeal against this determination. The appeal was brought under section 353 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW), which confers jurisdiction on the Court of Appeal to hear appeals from decisions of the Personal Injury Commission on a question of law.

The primary legal issues before the Court of Appeal were whether the Presidential member erred in law in their assessment of the applicant's burden of proof concerning the absence of a pre-existing injury, and whether the definition of "injury" under the *Workers Compensation Act 1987* (NSW) had been correctly applied. Specifically, the court had to consider if the applicant could shift the onus of proof by merely asserting a lack of evidence for a pre-existing condition, and whether the categorisation of "biological" and "pathological" changes was a valid approach to defining "disease" for the purposes of the Act.

The Court of Appeal found that the applicant bore the onus of proving their entitlement to compensation, which included demonstrating that any injury sustained was employment-related and not exacerbated by a pre-existing condition. The court held that the applicant could not discharge this burden by simply arguing that there was no evidence of a pre-existing injury, nor could they rely on their own evidence to establish the absence of such a condition. Furthermore, the court affirmed that the definition of "disease" in the context of workers' compensation should be interpreted broadly, and rejected the distinction between "biological" and "pathological" changes as a basis for limiting its scope. The court concluded that the Presidential member had erred in law in their approach to these matters.

The Court of Appeal upheld the appeal, set aside the determination of the Presidential member, and remitted the matter to the Personal Injury Commission for redetermination according to law.

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10.

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