Needham v Wollongong City Council - [2024] NSWSC 575

Supreme Court

New South Wales

Medium Neutral Citation: Needham v Wollongong City Council [2024] NSWSC 575
Hearing dates: 7 May 2024
Date of orders: 16 May 2024
Decision date: 16 May 2024
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
(1)   The appeal panel’s decision be set aside;
(2)   The matter be remitted to be considered by a differently constituted appeal panel; and
(3)   Unless the parties approach to be heard within 14 days with short written submissions, the Council is to bear Ms Needham’ s costs as agreed or assessed.

Catchwords:
ADMINISTRATIVE LAW – judicial review of decision of medical appeal panel – medical dispute under Workplace Injury Management and Workers Compensation Act 1998 – where plaintiff had suffered injury to her left elbow in a fall – where defendant rejected plaintiff’s claim about resulting impairment of her left upper extremity – where plaintiff made an application for assessment of impairment of her left upper extremity – where medical assessor found impairment of ulnar nerve as well as elbow joint – where appeal against assessment upheld – whether appeal panel erred in finding that medical assessor had dealt with injury which went beyond the parties’ medical dispute which was confined to impairment of the left elbow – claim pursued in respect of impairment of left upper extremity included impairment of the ulnar nerve – appeal panel’s decision set aside

Legislation Cited:
Supreme Court Act1970 (NSW), s 69
Workers Compensation Act1987 (NSW), s 66
Workplace Injury Management and Workers Compensation Act1998 (NSW), ss 319, 327(2), 352, 376
Personal Injury Commission Rules 2021 (NSW), r 128
SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, Guidelines 1.6, 1.7, 1.9,1.12, 1.17, 1.31-1.33, 2.3-2.8, 2.9-2.10

Cases Cited:
Amante v R [2020] NSWCCA 34
Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57
Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd (2014) 13 DDCR 156; [2014] NSWCA 264
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Holland v Jones (1917) 23 CLR 149; [1917] HCA 26
Klement v Bull ‘N’ Bush Nurseries Pty Ltd [2024] NSWSC 466
MIMA; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792
Siddik v WorkCover Authority of NSW [2008] NSWCA 116
Skatesv Hills Industries Ltd [2021] NSWCA 142
Vitaz v Westform (NSW) Pty Limited [2010] NSWSC 667

Texts Cited:
American Medical Association (AMA), Guides to the Evaluation of Permanent Impairment (5th ed, 2002)

Category: Principal judgment
Parties: Tracey Jane Needham (Plaintiff)
Wollongong City Council (First Defendant)
Personal Injury Commission Medical Appeal Panel consisting of Member Carolyn Rimmer, Medical Assessor David Crocker and Medical Assessor Doron Sher (Second defendant)
President of the Personal Injury Commission of New South Wales (Third defendant)
Representation: Counsel:
J W Dodd (Plaintiff)
Dr S Blount (First Defendant)
Solicitors:
McCabe Partners Lawyers (Plaintiff)
Integroe Partners (First Defendant)

File Number(s): 2023/420745
Publication…

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: [2024] NSWSC 575
Decision Date: 16 May 2024

CaseChat Overview and Summary

In the case of Needham v Wollongong City Council, the plaintiff sought judicial review of a decision made by the defendant's medical appeal panel. The plaintiff had suffered an injury to her left elbow from a fall and had sought compensation under the Workplace Injury Management and Workers Compensation Act 1998. The council had initially rejected the plaintiff's claim regarding the impairment of her left upper extremity. The plaintiff subsequently applied for an assessment of the impairment of her left upper extremity. A medical assessor found that there was impairment of both the ulnar nerve and the elbow joint. The plaintiff's appeal against this assessment was upheld, leading to the current judicial review proceedings.

The primary legal issue before the court was whether the appeal panel had erred in concluding that the medical assessor had considered a medical issue that was beyond the scope of the medical dispute between the parties. The scope of the dispute was confined to the impairment of the left elbow, whereas the plaintiff's claim encompassed impairment of the left upper extremity, including the ulnar nerve. The court needed to determine if the appeal panel's decision to uphold the plaintiff's appeal was justified.

The court found that the appeal panel had indeed erred in its decision. The medical assessor had considered factors outside the scope of the dispute, namely the impairment of the ulnar nerve, which was not part of the original medical dispute between the parties. The court held that the appeal panel's decision to uphold the plaintiff's appeal was incorrect, as the medical assessor's consideration of the ulnar nerve was beyond the parameters of the original dispute. Consequently, the court set aside the appeal panel's decision.

In light of the court's findings, the appeal panel's decision was set aside, and the matter was remitted back to the appeal panel for reconsideration in accordance with the court's directions. The court's decision clarified the scope of the medical dispute and ensured that the appeal panel's review was limited to the issues properly before them.

Orders