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:
Solicitors:
Ms C Roberts (Respondent)
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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- Case
- [2022] NSWCA 138
- Decision Date
CaseChat Overview and Summary
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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