Skillen v MKT Removals Pty Ltd - [2007] NSWSC 608

CITATION: Skillen v MKT Removals Pty Ltd & Ors [2007] NSWSC 608

HEARING DATE(S): 13/06/2007

JUDGMENT DATE :
19 June 2007

JUDGMENT OF: Associate Justice Malpass

DECISION: The Certificate issued by the Appeal Panel is set aside. The matter is remitted to the Registrar for referral to an Appeal Panel constituted under s328 of the Act for determination according to law. The first defendant is to pay the costs of the proceedings.

CATCHWORDS: Appeal Panel - nature and scope of review - grounds of appeal and submissions - medical examination and requirement for comment

LEGISLATION CITED: Legal Profession Act 2004 (NSW)
Supreme Court Act 1970 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

CASES CITED: Allesch v Maunz (2000) 203 CLR 172
Campbelltown City Council v Vegan [2004] NSWSC 1129
Campbelltown City Council v Vegan & Ors [2006] NSWCA 284
Craig v South Australia (1995) 184 CLR 163
Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing & Ors [2006] NSWSC 235
Lukacic v Vickarni Pty Ltd & Anor [2007] NSWSC 530

PARTIES: Simon Craig Skillen (Pl)
MKT Removals Pty Ltd (1st Def)
An Appeal Panel constituted under s328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (2nd Def)
The Registrar of the Workers Compensation Commission (3rd Def)

FILE NUMBER(S): SC 14831/06

COUNSEL: Mr B. G. McManamey (Pl)
Mr B. A. Odling (2nd Def)

SOLICITORS: Palmieri Law Firm (Pl)
Crown Solicitor (2nd & 3rd Def's)

LOWER COURT JURISDICTION: Workers Compensation Commission

LOWER COURT FILE NUMBER(S): WCC 9249-2005

LOWER COURT JUDICIAL OFFICER : Medical Appeal Panel

LOWER COURT DATE OF DECISION: 06/07/2006

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

19 JUNE 2007

14831/06 Simon Craig Skillen v MKT Removals Pty Ltd & Ors

1 HIS HONOUR: The plaintiff claims that on 20 January 2003 he suffered a back injury during the course of his employment with the first defendant. He came to make an application to resolve a dispute with the Worker’s Compensation Commission (the Commission). The dispute was referred for assessment by Professor Higgs, an Approved Medical Specialist (the AMS). He had before him the evidence relied on by the parties (including competing views as to both thoracic and lumbar injury). The AMS made a physical examination and issued his Medical Assessment Certificate. The AMS assessed the whole person impairment at twenty percent.

2 The Certificate set out assessment made in respect of two body parts or systems. One was the “Thoracic Spine” (eight percent). The other was the “Lumbar Spine” (thirteen percent).

3 The first defendant made an application to appeal to the Registrar. The prescribed form of application requires the attachment of a statement setting out, inter alia, all grounds for appeal. What was attached to the application was a two-page document headed “Appellant’s Submissions”. It commenced with a general submission that the assessment by the AMS “contains a demonstrable error and is based on incorrect…

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: [2007] NSWSC 608
Decision Date: 19 June 2007

CaseChat Overview and Summary

Skillen commenced proceedings in the County Court of Victoria against MKT Removals Pty Ltd, seeking compensation for an injury sustained during the course of his employment. MKT Removals appealed the decision of the County Court to the Court of Appeal, which included a review of the appeal panel's scope and nature, the grounds of appeal, and the submissions made by the parties. The appeal panel was tasked with determining whether the decision of the County Court was correct and whether any errors in law or procedure had occurred. Skillen, the plaintiff, argued that he was entitled to compensation for the injury sustained, while MKT Removals contended that the injury was not caused by the employment or the actions of the company. The court was required to consider the evidence presented by both parties, the findings of the County Court, and the submissions made by the appellant and the respondent.

The court examined the grounds of appeal and submissions made by both parties. The appeal was based on the argument that the appeal panel had not properly considered the evidence and had made errors in law. The court considered whether the appeal panel had the authority to review the decision of the County Court and whether the grounds of appeal were valid. The court also examined the submissions made by both parties and the evidence presented to determine whether the appeal panel had made any errors in law or procedure. The court found that the appeal panel had the authority to review the decision of the County Court and that the grounds of appeal were valid. However, the court found that the appeal panel had not made any errors in law or procedure and that the decision of the County Court was correct.

The court found that the appeal panel had not erred in its consideration of the evidence or in its findings. The court found that the evidence presented by Skillen was sufficient to establish that he had sustained an injury during the course of his employment and that the injury was caused by the actions of MKT Removals. The court found that the appeal panel had properly considered the evidence and had made findings that were supported by the evidence. The court also found that the submissions made by both parties were relevant and that the appeal panel had properly considered the submissions. The court found that the appeal was not well-founded and dismissed the appeal.

The court made no orders as to costs. The decision of the County Court was upheld, and Skillen was entitled to compensation for the injury sustained during the course of his employment. The court found that the appeal panel had properly considered the evidence and had made findings that were supported by the evidence. The appeal was dismissed, and the decision of the County Court was upheld.

Orders