Woolstar Pty Ltd v Lando - [2022] NSWSC 241

Supreme Court

New South Wales

Medium Neutral Citation: Woolstar Pty Ltd v Lando [2022] NSWSC 241
Hearing dates: 28 September 2021
Date of orders: 10 March 2022
Decision date: 10 March 2022
Jurisdiction: Common Law
Before: Simpson AJ
Decision:
1. Summons for judicial review dismissed;
2. The plaintiff to pay the costs of each defendant.

Catchwords:
WORKERS COMPENSATION — Disease injury – where first defendant employed by Woolworths from February 1995 – where first defendant tripped on step and suffered injuries to her right hip, right wrist and right ankle and consequential injury to her left hip – first defendant made a claim under s 66 of the Workers Compensation Act 1987 (NSW), for permanent impairment – where plaintiff disputed liability – dispute referred to the Workers Compensation Commission for determination – dispute referred for medical assessment – appeal against medical assessment – where Appeal Panel declined to make a deduction under s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW), in respect of disease injury to first defendant’s right hip by reason of a pre-existing condition – whether Appeal Panel exceeded its jurisdiction by making ‘liability finding’ as between plaintiff and first defendant and departing from the findings of the Arbitrator at the Workers Compensation Commission

Legislation Cited:
Personal Injury Commission Act 2020 (NSW)
Supreme Court Act 1976 (NSW)
Workers Compensation Act 1987 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited:
Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCCA 264
Cole v Wenaline Pty Ltd [2010] NSWSC 78
Ragaa Haroun v Rail Corporation NSW [2008] NSWCA 192

Category: Principal judgment
Parties: Woolstar Pty Ltd (Plaintiff)
Gelsomina Lando (1st Defendant)
President of the Personal Injury Commission of NSW (2nd Defendant)
The Medical Appeal Panel (3rd Defendant)
Representation:
Counsel:
L D Robison (Plaintiff)
D Hooke SC/L Morgan (1st Defendant)
Submitting appearances (2nd and 3rd Defendants)
Solicitors:
BBW Lawyers (Plaintiff)
Turner Freeman (1st Defendant)
Crown Solicitor for NSW (2nd and 3rd Defendants)

File Number(s): 2021/22033
Decision under appeal

Court or tribunal:

Workers Compensation Commission
Medical Appeal Panel

Jurisdiction:

Civil

Date of Decision:

26 October 2020

Before:

Arbitrator Catherine McDonald; Dr Roger Pillemer; Dr Brian Stephenson

File Number(s):

WCC-M1-1631/20

Judgment

SIMPSON AJ: By summons filed on 25 January 2021 the plaintiff, under the name “Woolworths Group Ltd” (“Woolworths”), sought, pursuant to s 69 of the Supreme Court Act 1976 (NSW), judicial review of a decision made by an Appeal Panel constituted under s 328(1) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the WIM Act”) on 26 October 2022. The summons named Gelsomina Lando, the Workers Compensation Commission of NSW and “The Medical Appeal Panel constituted of Catherine McDonald, Dr Roger Pillemer and Dr Brian Stephenson” as, respectively, the first, second and third defendants. By order of this Court dated 29 July 2021 the name of the plaintiff was amended to “Woolstar Pty Ltd” (“Woolstar”) and the name of the second defendant was amended to “President of…

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 Woolstar Pty Ltd v Lando

Details

AGLC: Woolstar Pty Ltd v Lando [2022] NSWSC 241
Case: [2022] NSWSC 241
Decision Date: 10 March 2022

CaseChat Overview and Summary

In Woolstar Pty Ltd v Lando, the dispute arose from an incident where the first defendant, an employee of Woolworths, tripped on a step and suffered injuries to her right hip, right wrist, and right ankle, as well as a consequential injury to her left hip. The first defendant claimed permanent impairment under section 66 of the Workers Compensation Act 1987 (NSW). Woolstar, the plaintiff, contested the claim. The matter was referred to the Workers Compensation Commission, which in turn referred the dispute for medical assessment. An appeal followed against the medical assessment, leading to a consideration of whether the Appeal Panel exceeded its jurisdiction.

The legal issues before the court included whether the Appeal Panel had the authority to make a 'liability finding' between the plaintiff and the first defendant and whether it was appropriate for the Appeal Panel to depart from the findings of the Arbitrator at the Workers Compensation Commission. The court had to determine if the Appeal Panel's decision to decline a deduction under section 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) in respect of the disease injury to the first defendant’s right hip due to a pre-existing condition was within its jurisdictional boundaries.

The court reasoned that the Appeal Panel did not exceed its jurisdiction by making a 'liability finding' as between the parties. The panel's role was to assess the extent of the injury and its causation, not to determine who was liable for the incident. The panel's decision was based on the medical evidence and the statutory provisions applicable to workers' compensation claims. The court found that the Appeal Panel did not depart from the findings of the Arbitrator and was correct in declining to make a deduction for the pre-existing condition, as the injury to the right hip was a result of the incident. The court upheld the Appeal Panel's decision, affirming its jurisdiction and the correctness of its findings.

The final orders of the court were that the Appeal Panel's decision was upheld, and the plaintiff's appeal was dismissed. The court confirmed that the Appeal Panel did not exceed its jurisdiction and correctly assessed the compensable injury. The first defendant was entitled to compensation for her injuries as determined by the Appeal Panel.

Orders