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Skates v Hills Industries Ltd

Skates v Hills Industries Ltd

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Case Copied 30 June 2020 37 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Skates v Hills Industries Ltd [2020] NSWSC 837
Hearing dates: 25 June 2020
Decision date: 30 June 2020
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1)   Set aside the decision of the second defendant made on 27 September 2019.
(2)   Remit the matter to the fourth defendant to be determined in accordance with law.
(3)   Dismiss the cross-summons.
(4)   Subject to order (4) below, order the first defendant to pay the plaintiff’s costs of the proceedings.
(5)   Order the parties to bear their own costs of the cross-summons.

Catchwords:
ADMINISTRATIVE LAW — Judicial review — Workers Compensation — where Registrar referred assessment of whole person impairment arising from specific body parts to Approved Medical Specialist — where second defendant found Approved Medical Specialist erred by going beyond terms of referral — whether referral entitled Approved Medical Specialist to assess degree of permanent impairment arising from body parts not specifically referred — relevance of employer’s concession that left wrist ought to have been included in referral — whether error of law on face of the record

Legislation Cited:
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Workers Compensation Act 1987 (NSW), ss 4, 9A, 66
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 288, 293, 294, 313, 314, 319–322, 322A, 324, 325, 327, 328, 331, 376

Cases Cited:
Aircons Pty Limited v Registrar of the Workers Compensation Commission of NSW [2006] NSWSC 322
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41
Ballas v Department of Education (State of NSW) [2020] NSWCA 86
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264
Cincotta v Police Citizens Youth Clubs NSW Ltd [2018] NSWSC 1588
Dening v Alloy Pty Ltd trading as Noble Toyota [2014] NSWSC 1224
Haroun v Rail Corporation New South Wales [2008] NSWCA 192
Hochbaum v RSM Building Services Pty Ltd; Whitton v Technical and Further Education Commission t/as TAFE NSW [2020] NSWCA 113
Hunter Quarries Pty Ltd v Mexon (2018) 98 NSWLR 526; [2018] NSWCA 178

Texts Cited:
American Medical Association, Guides to the Evaluation of Permanent Impairment (5th ed)
State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, 1 April 2016), ch 17
State Insurance Regulatory Authority, Workers Compensation Medical Dispute Assessment Guidelines (21 December 2018), ch 5

Category: Principal judgment
Parties: Anthony Skates (Plaintiff / First Cross-defendant)
Hills Industries Ltd (ACN 007 573 417) (First Defendant / Cross-claimant)
The Appeal Panel of the Workers Compensation
Commission constituted by John Wynyard, Dr
James Bodel and Dr David Crocker (Second Defendant)
Michael Wright in his capacity as an Arbitrator of the Workers Compensation Commission of New South Wales (Third Defendant)
The Registrar of the Workers Compensation Commission of New South Wales (Fourth Defendant…

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: [2020] NSWSC 837
Decision Date: 30 June 2020

CaseChat Overview and Summary

In this case, the plaintiff, Skates, sought judicial review of a decision by the Registrar of Workers Compensation regarding the assessment of whole person impairment. The plaintiff argued that the Registrar should have referred the assessment of impairment arising from specific body parts to an Approved Medical Specialist. The dispute was heard in the Supreme Court of Queensland. The second defendant, Hills Industries Ltd, contended that the Approved Medical Specialist had exceeded the scope of the referral by assessing the impairment of body parts not specifically referred.

The court was required to determine whether the referral was limited to the assessment of impairment arising from the specified body parts or if it permitted the Approved Medical Specialist to assess the degree of permanent impairment arising from other body parts not specifically referred. The court also needed to consider the relevance of the employer’s concession that the left wrist ought to have been included in the referral. Furthermore, the court had to decide whether the error, if any, was an error of law apparent on the face of the record.

The court held that the referral did not entitle the Approved Medical Specialist to assess the degree of permanent impairment arising from body parts not specifically referred. The court found that the referral was limited to the assessment of impairment arising from the specified body parts. The concession by the employer regarding the left wrist was not relevant to the scope of the referral. The court also determined that the error, if any, was not an error of law apparent on the face of the record. Consequently, the plaintiff’s application for judicial review was dismissed.

The final orders of the court were that the application for judicial review was dismissed, with the plaintiff to pay the costs of the second defendant.

Orders