Smith v Liquip Services Pty Ltd - [2007] NSWSC 687

CITATION: Smith v Liquip Services Pty Limited and Ors [2007] NSWSC 687

HEARING DATE(S): 25 June 2007

JUDGMENT DATE :
4 July 2007

JUDGMENT OF: Hoeben J at 1

CATCHWORDS: Workers Compensation - judicial review - Appeal Panel - ground of "demonstrable error" - nature and scope of "review" by Appeal Panel - whether "a demonstrable error" on medical assessment certificate of approved medical specialist.

LEGISLATION CITED: Supreme Court Act 1970
Workplace Injury Management and Workers’ Compensation Act 1998

CASES CITED: Allesch v Maunz (2000) 203 CLR 172
Campbelltown City Council v Vegan [2004] NSWSC 1129
Campbelltown City Council v Vegan [2006] NSWCA 284
Craig v South Australia (1985) 184 CLR 163
Dar v State Transit Authority of NSW [2007] NSWSC 260
Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited [2006] NSWSC 235
Lukacic v Vickarni Pty Limited & Anor [2007] NSWSC 530
Merzer v Registrar of Workers Compensation Commission [2006] NSWSC 939
North Broken Hill Ltd v Tumes (1999) 18 NSWCCR 412
Pitsonis v Registrar of the Workers’ Compensation Commission [2007] NSWSC 50
Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW [2005] NSWSC 1260
Riverina Wines Pty Ltd v Registrar of the Workers Compensation Commission of NSW and Ors [2007] NSWCA 149
Skillen v MKT Removals Pty Limited & Ors [2007] NSWSC 608
Vetter v Lake Macquarie City Council (2001) 202 CLR 439

PARTIES: Robert Garry Smith - Plaintiff
Liquip Services Pty Limited - First Defendant
Registrar Workers Compensation Court - Second Defendant
Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 - Third Defendant

FILE NUMBER(S): SC 30103/2006

COUNSEL: Mr C Jackson - Plaintiff
Mr G R Graham - First Defendant
Submitting Appearance - Second and Third Defendants

SOLICITORS: PK Simpson & Co - Plaintiff
Cutler Hughes & Harris - First Defendant
I V Knight, Crown Solicitor - Second and Third Defendants

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): 19707-2003

LOWER COURT JUDICIAL OFFICER : Workers Compensation Commission of NSW

LOWER COURT DATE OF DECISION: 07/07/2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

HOEBEN J

Wednesday, 4 July 2007

30103/06 – Robert Garry SMITH v LIQUIP SERVICES PTY LIMITED and Ors

JUDGMENT
HIS HONOUR:
Nature of Claim

1 The plaintiff was employed by the first defendant when he suffered an injury to his right shin on 7 February 2001. On 11 December 2001 he made a claim for compensation in respect of a back injury and on 17 September 2002 he made a claim for loss of efficient use of sexual organs. Those claims were disputed by the first defendant.

2 The plaintiff applied to the Workers’ Compensation Commission (the Commission) to resolve a dispute and was referred for assessment to an approved medical specialist (AMS) in respect of his back (Dr Blake) and in respect of his claim for loss of efficient use of sexual organs (Dr Taylor). Those two doctors issued…

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 687
Decision Date: 4 July 2007

CaseChat Overview and Summary

In the case of Smith v Liquip Services Pty Ltd, the appellant, Mr Smith, sought judicial review of a decision made by an Appeal Panel concerning his workers' compensation claim. The dispute arose from the Panel's assessment of a medical assessment certificate provided by an approved medical specialist, which Mr Smith contended contained a demonstrable error. The matter was heard in the Federal Circuit Court of Australia, where the court was required to determine the nature and scope of the review process by the Appeal Panel, and whether the Panel had erred in its consideration of the medical assessment certificate.

The primary legal issue before the court was whether the Appeal Panel's review of the medical assessment certificate constituted a demonstrable error. The court had to consider the extent to which the Panel was bound by the certificate and whether it was permissible for the Panel to exercise its own judgment in reviewing the certificate. The court also needed to determine the standard of review applicable to the Panel's decision, and whether the Panel's assessment of the medical evidence was flawed.

The court found that the Appeal Panel had not committed a demonstrable error in its review of the medical assessment certificate. The court held that the Panel was entitled to exercise its own judgment in assessing the medical evidence and that the standard of review was one of correctness. The court found that the Panel had properly considered the medical evidence and had reached a reasonable conclusion based on that evidence. The court further held that the Panel's decision was not affected by any perceived bias or procedural unfairness.

Accordingly, the court dismissed Mr Smith's appeal and upheld the decision of the Appeal Panel. The court found that the Panel's review of the medical assessment certificate was not flawed and that the Panel's decision was not affected by any demonstrable error. The court ordered that Mr Smith pay the respondent's costs of the appeal.

Orders