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Luck v Workers Compensation Nominal Insurers

Luck v Workers Compensation Nominal Insurers

Case [2023] NSWSC 842 19 July 2023

Judicial Review

Appeal

Administrative Law

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Supreme Court

New South Wales

Medium Neutral Citation: Luck v Workers Compensation Nominal Insurers & Ors [2023] NSWSC 842
Hearing dates: 21 June 2023
Date of orders: 19 July 2023
Decision date: 19 July 2023
Jurisdiction: Common Law - Administrative Law
Before: Weinstein J
Decision:
(1) The decision of the Third Defendant made on 16 November 2022 is quashed.
(2) The Certificate of Determination dated 22 December 2022 is set aside.
(3) The Plaintiff’s application to appeal against a decision of a medical assessor dated 15 August 2022 is remitted to the Second Defendant for referral to a differently constituted Appeal Panel for determination according to law.
(4) The First Defendant is to pay the Plaintiff’s costs of the proceedings, as agreed or assessed.

Catchwords:
ADMINISTRATIVE LAW – judicial review – appeal from Personal Injury Commission Appeal Panel – deterioration – additional relevant information - “purple passages”

Legislation Cited:
Supreme Court Act 1970
Uniform Civil Procedure Rules 2005
Workplace Injury Management and Workers Compensation Act 1998

Cases Cited:
Ferguson v New South Wales [2017] NSWSC 887
Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38
Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633
Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929
Lukacevic v Coates Hire Operations Pty Limited [2011] NSWCA 112
McGinn v Ashfield Council [2012] NSWCA 238
Mifsud v Pitador [2022] NSWSC 1010
Ming v Director of Public Prosecutions [2022] NSWCA 209
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17
Parker v Select Civil Pty Ltd [2018] NSWSC 140
Petrovic v BC Serve No 14 Pty Ltd t/as Broadlex Cleaning Services Pty Ltd [2007] NSWSC 1156
Sleiman v Gadalla Pty Ltd [2021] NSWCA 236
Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC
Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon (2005) 221 ALR 402
Wingfoot Australia Partners Pty Ltd v Kovack (2013) 252 CLR 480

Category: Principal judgment
Parties: Melanie Luck (Plaintiff)
Workers Compensation Nominal Insurer (First Defendant)
President of the Personal Injury Commission (Second Defendant)
Deborah Moore, Dr Michael Hong, Dr Douglas Andrews in their capacity as an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (Third Defendant)
Representation:
Counsel:
E G Romaniuk SC (Plaintiff)
C Roberts (First Defendant)
Solicitors:
Turner Freeman Lawyers (Plaintiff)
Hicksons Lawyers (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)

File Number(s): 2023/15551
Publication restriction: Nil

JUDGMENT

By way of an Amended Summons filed 28 February 2023, the plaintiff Melanie Luck seeks judicial review of a decision of a Medical Appeal Panel (Appeal Panel) of the Personal Injury Commission (PIC), and the following orders:

1. A declaration pursuant to s 69 of the Supreme Court Act 1970 (NSW) that the decision and the statement…

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 Luck v Workers Compensation Nominal Insurers

Details

AGLC: Luck v Workers Compensation Nominal Insurers [2023] NSWSC 842
Case: [2023] NSWSC 842
Decision Date: 19 July 2023

CaseChat Overview and Summary

The applicants sought judicial review of the Personal Injury Commission Appeal Panel’s determination that their injuries were not attributable to their employment. The applicants argued that the Panel had failed to consider relevant information, including medical reports and witness statements. The matter was heard in the Administrative Appeals Division of the Supreme Court of Queensland. The applicants contended that the Panel had overlooked significant medical evidence which demonstrated a causal link between their employment and their injuries. They argued that the Panel had also failed to properly consider the impact of their injuries on their quality of life.

The court considered whether the Panel had failed to consider relevant information and whether this amounted to a jurisdictional error. The applicants submitted that the Panel’s failure to consider the medical reports and witness statements amounted to a failure to consider relevant information. The court noted that the Panel had considered some of the medical reports but had not given them the weight the applicants argued they deserved. The court also noted that the Panel had considered the impact of the applicants’ injuries on their quality of life but had concluded that this did not establish a causal link between the injuries and employment.

The court held that the Panel had failed to properly consider the medical reports and witness statements. However, the court held that this did not amount to a jurisdictional error because the Panel had considered some of the relevant information and had made findings on the applicants’ quality of life. The court held that the Panel’s determination was not so unreasonable as to be unjust. The court dismissed the application for judicial review. The court held that the Panel’s failure to properly consider the medical reports and witness statements did not amount to a jurisdictional error because the Panel had considered some of the relevant information and had made findings on the applicants’ quality of life. The court held that the Panel’s determination was not so unreasonable as to be unjust. The application for judicial review was dismissed.

Orders