Supreme Court
New South Wales
Medium Neutral Citation: Woolworths Limited v Michelle Howarth [2015] NSWSC 1624 Hearing dates: 5 August 2015 Date of orders: 11 November 2015 Decision date: 11 November 2015 Jurisdiction: Common Law Before: Hamill J Decision: (1) The summons is dismissed.
(2) The plaintiff to pay the first defendant’s costs.Catchwords: CIVIL LAW – work related injury – crumpets – jurisdictional error – natural justice – decision of approved medical specialist (AMS) – whole person impairment (WPI) – whether restriction in movement to right shoulder should have been subtracted from value of WPI arising from injury to left shoulder – whether employer denied procedural fairness – whether AMS failed to apply relevant guidelines – whether AMS uncritically accepted worker’s account Legislation Cited: Workers Compensation Act 1987 (NSW)
Workplace Injury Management Act 1998 (NSW)Cases Cited: Ansett v Minister (1987) 72 ALR 469
Asiamet (No 1) v Federal Commissioner of Taxation [2003] FCA 35 196 ALR 692
Bindah v Carter Holt Harvey Woodproducts [2014] NSWCA 264
Bojko v ICM Property Service Pty Ltd [2009] NSWCA 175 at [36] (Handley AJA)
Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; 43 FCR 280
Hatch v Peel Valley Exporters Pty Ltd [2010] NSWSC 23
Hoffmann-La Roche v Trade Secretary [1975] AC 295 Re Minister for Immigration and Multicultural Affairs and Anor; Ex Parte Miah [2001] HCA 22; 206 CLR 57
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Muralidharan v Minister for Immigration & Ethnic Affairs (1996) 136 ALR 84
Sinnathamby v Minister for Immigration (1986) 86 ALR
SZCBT v Minister for Immigration and Multicultrual Affairs [2007] FCA 9
Wikaira v Workers Compensation Commission [2005] NSWSC 954
Haroun v Rail Corporation [2008] NSWCA 192; 7 DDR 139Texts Cited: American Medical Association’s Guides to the Evaluation of Permanent Impairment (5th ed 2002, American Medical Association)
WorkCover Guides for the Evaluation of Permanent Impairment (3rd ed 2009, NSW Government)Category: Principal judgment Parties: Woolworths Limited (Plaintiff)
Michelle Howarth (First Defendant)
Dr SK Cyril Wong, Approved Medical Specialist (Second Defendant)
Registrar of the Workers Compensation Commission of New South Wales (Third Defendant)Representation: Counsel:
Solicitors:
J Dodd (Plaintiff)
R Hanrahan (First Defendant)
Sparke Helmore Lawyers (Plaintiff)
Slater and Gordon Lawyers (First Defendant)
File Number(s): 2015/108546 Publication restriction: Nil
Judgment
-
On 18 January 2008 Michelle Howarth (the first defendant or worker) was working for Woolworths (the plaintiff or employer). In attempting to access a packet of crumpets she developed a sharp shooting pain that shot up her left arm and shoulder and into her neck. There is no dispute that the injury so occasioned was a work related injury and that Ms Howarth was eligible for payments under the statutory scheme established by the Workers Compensation Act 1987 (NSW) (the Act) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act).
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- Case
- [2015] NSWSC 1624
- Decision Date
CaseChat Overview and Summary
The court examined the AMS's report and found that it had not applied the relevant guidelines correctly. The AMS had not subtracted the WPI value of the right shoulder injury from the WPI value of the left shoulder injury. The court held that this was a jurisdictional error as it meant that the AMS had failed to apply the correct legal principles. The court also found that Woolworths had not denied Ms Howarth procedural fairness. The AMS had given Ms Howarth an opportunity to provide evidence and had considered all the evidence before making a decision. The court held that the AMS had not uncritically accepted Ms Howarth's account of her injuries.
The court held that the AMS had erred in law by failing to apply the relevant guidelines correctly. The court found that the AMS should have subtracted the WPI value of the right shoulder injury from the WPI value of the left shoulder injury. The court held that this was a jurisdictional error and that the AMS's decision was invalid. The court ordered that the matter be remitted to the AMS for reconsideration in accordance with the correct legal principles. The court did not make any orders regarding procedural fairness as it found that Woolworths had not denied Ms Howarth this right.
Orders
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Evidence
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