Ibrahim v Sellers Fabrics Pty Ltd [2023] NSWSC 1320

Ibrahim v Sellers Fabrics Pty Ltd [2023] NSWSC 1320

The Appeal Panel made an error of law and constructively failed to exercise jurisdiction by confirming a 30% deduction under s 323 for the plaintiff's Type 2 diabetes on the basis of genetic predisposition or susceptibility, without distinguishing between genetics causing increased susceptibility to diabetes and genetics causing a discernible level of impairment. Susceptibility is not impairment, and s 323 does not permit a deduction on that basis.

Jurisdiction
Australia
Judgment Date
03 November 2023
Procedural Posture
Judicial Review; Common Law Administrative Law / Review of a Decision of the Medical Appeal Panel of the Personal Injury Commission
Outcome
Application for judicial review successful; the decision of the Appeal Panel was set aside and the matter referred to the President, Personal Injury Commission to be dealt with according to law.
Legal Topics
['whole Person Impairment' 'type 2 Diabetes' 'pre Existing Condition or Abnormality' 'genetic Predisposition or Susceptibility' 'deduction Under S 323' 'error of Law' 'constructive Failure to Exercise Jurisdiction' 'referral to the President, Personal Injury Commission']
['administrative Law' 'workers Compensation' 'judicial Review'] ['whole Person Impairment' 'type 2 Diabetes' 'pre Existing Condition or Abnormality' 'genetic Predisposition or Susceptibility' 'deduction Under S 323' 'error of Law' 'constructive Failure to Exercise Jurisdiction' 'referral to the President, Personal Injury Commission']

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Procedural Posture

Judicial Review; Common Law Administrative Law / Review of a Decision of the Medical Appeal Panel of the Personal Injury Commission

Legal Issues

  1. 1 ["Whether the Appeal Panel erred in confirming a 30% deduction for the plaintiff's diabetic condition under s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)." 'Whether a genetic predisposition or susceptibility to Type 2 diabetes is a pre-existing condition or abnormality permitting a deduction under s 323.' "Whether the Appeal Panel constructively failed to exercise jurisdiction by failing to engage meaningfully with the plaintiff's submissions."]

Ratio Decidendi

The Appeal Panel made an error of law and constructively failed to exercise jurisdiction by confirming a 30% deduction under s 323 for the plaintiff's Type 2 diabetes on the basis of genetic predisposition or susceptibility, without distinguishing between genetics causing increased susceptibility to diabetes and genetics causing a discernible level of impairment. Susceptibility is not impairment, and s 323 does not permit a deduction on that basis.

Court Disposition

Application for judicial review successful; the decision of the Appeal Panel was set aside and the matter referred to the President, Personal Injury Commission to be dealt with according to law.

Orders

  • ['The decision of the Appeal Panel is set aside.' 'The matter is referred to the President, Personal Injury Commission to be dealt with according to law.' "The first defendant is to pay the plaintiff's costs."]