Scott v Ivy Contractors Pty Ltd - [2023] NSWSC 891

Supreme Court

New South Wales

Medium Neutral Citation: Scott v Ivy Contractors Pty Ltd [2023] NSWSC 891
Hearing dates: 18 July 2023
Date of orders: 1 August 2023
Decision date: 01 August 2023
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
1. The appeal panel’s decision is set aside.
2. The matter is referred back to the President of the Commission to be dealt with according to law.
3. Ivy Contractors Pty Ltd is to bear Mr Scott’s costs, as agreed or assessed.

Catchwords:
ADMINISTRATIVE LAW – Medical assessment – Judicial review of decision of medical appeal panel – Where appeal panel accepted error alleged in medical assessment and assessed claimant afresh – Function of appeal panel confined to determining grounds raised by the appeal – Failure to give adequate reasons

Legislation Cited:
NSW workers compensation guidelines for the evaluation of permanent impairment (4th ed, 2021), cll 11.4, 11.5, 11.6
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Workers Compensation Act1987 (NSW), s 65A
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 327, 328, 329

Cases Cited:
Aquilina v Transport for NSW [2022] NSWSC 1310
Finnegan v Komatsu Forklift Australia Pty Ltd [2023] NSWSC 38
Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929
McGinn v Ashfield Council [2012] NSWCA 238
Queanbeyan Racing Club Limited v Burton [2021] NSWCA 304
Sleiman v Gadalla Pty Ltd [2021] NSWCA 236
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Category: Principal judgment
Parties: Mr Gary Scott (Plaintiff)
Ivy Contractors Pty Ltd (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
Deborah Moore, Professor N Glozier and Dr D Andrews, Medical Appeal Panel, the Personal Injury Commission (Third Defendant)
Representation:
Counsel:
Mr E G Romaniuk SC (Plaintiff)
Mr S Moffet (Plaintiff)
Ms C Roberts (First Defendant)
Submitting Appearances (Second & Third Defendants)
Solicitors:
Walker Law Group (Plaintiff)
Bartier Perry Lawyers (First Defendant)
Crown Solicitor’s Office (Second & Third Defendants)

File Number(s): 2023/90581
Decision under appeal

Court or tribunal:

Personal Injury Commission

Date of Decision:

30 May 2022

Before:

Mr P Young & Ms D Moore, Professor N Glozier, and Dr D Andrews

File Number(s):

W918/22 & M1-W918/22

JUDGMENT

In January 2019 Mr Scott was injured while working for Ivy Contractors Pty Ltd as he was descending a ladder carrying a heavy piece of equipment down from a roof. He suffered shock and pain and later pursued treatment for his physical injuries. He also began suffering symptoms consistent with having suffered a psychological injury, for which he was also treated. Mr Scott made a claim for compensation under the Workplace Injury Management and Workers Compensation Act 1998 (NSW). He later pursued a medical dispute about his psychiatric injury, the extent of which could not be agreed.
Mr Scott was assessed by the psychiatrist Dr Young, who concluded he had suffered a 7% whole person impairment from his psychological injury. In arriving at his…

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 Scott v Ivy Contractors Pty Ltd

Details

AGLC: Scott v Ivy Contractors Pty Ltd [2023] NSWSC 891
Case: [2023] NSWSC 891
Decision Date: 01 August 2023

CaseChat Overview and Summary

The matter before the court involved Scott, the appellant, who sought judicial review of a decision made by a medical appeal panel under the Workers Compensation Act. Scott argued that the panel had misapplied the law in reassessing his medical condition and award entitlements. The respondent, Ivy Contractors Pty Ltd, defended the panel's decision, asserting that it was within its authority to reassess Scott's condition following the identification of an error in the original assessment.

The central legal issue before the court was whether the medical appeal panel had exceeded its jurisdiction by reassessing Scott's medical condition and entitlements. The court needed to determine if the panel's function was limited to deciding on the grounds raised in the appeal, and whether the panel's decision was vitiated by a failure to provide adequate reasons for its reassessment. The court was also tasked with assessing whether the panel had correctly applied the relevant statutory provisions in making its decision.

The court held that the medical appeal panel had indeed exceeded its jurisdiction by reassessing Scott's medical condition and entitlements without proper justification. The court found that the panel's role was confined to deciding the grounds of the appeal as raised, and that reassessing the case afresh was beyond the scope of the panel's function. Furthermore, the court found that the panel's failure to provide adequate reasons for its reassessment contributed to the invalidity of its decision. Consequently, the court granted Scott's application for judicial review, quashed the panel's decision, and remitted the matter back to the panel for reconsideration in accordance with the law.

Orders