Woolworths Limited v Michelle Howarth - [2015] NSWSC 1624

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 139
Texts 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:
J Dodd (Plaintiff)
R Hanrahan (First Defendant)
Solicitors:
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).

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: [2015] NSWSC 1624
Decision Date: 11 November 2015

CaseChat Overview and Summary

Woolworths Limited brought a proceeding against Michelle Howarth in the Federal Circuit Court of Australia concerning the quantum of workers' compensation payable for injuries she sustained at work. Ms Howarth alleged that she injured her left shoulder at work and subsequently suffered from an unrelated injury to her right shoulder. The dispute centred on whether the approved medical specialist (AMS) should have subtracted the restriction in movement in the right shoulder from the whole person impairment (WPI) value of the left shoulder injury. Woolworths argued that the AMS had failed to apply the relevant guidelines and had uncritically accepted Ms Howarth's account of her injuries, thereby denying her procedural fairness. The Federal Circuit Court of Australia was required to determine whether the AMS had erred in law by failing to apply the guidelines correctly and whether Woolworths had denied Ms Howarth procedural fairness.

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