Southwell v Qantas Airways Limited [2024] NSWSC 497

Ground (b) failed because the apparent missing reason in paragraph 53 was an obvious punctuation or word processing error and the reasons could be read naturally with a comma after "because". Ground (a) succeeded because the Second Appeal Panel addressed the wrong question under s 323: it found that the pre-existing lumbar degeneration contributed to the occurrence of the 2017 disc rupture and that without the degeneration there would have been no injury or present impairment, but it did not determine whether any part or portion of the assessed 15% whole person impairment was due to the pre-existing condition and not the workplace injury. Section 323(2) could not be used to assume a 10%...

Jurisdiction: Australia
Judgment Date: 03 May 2024
Procedural Posture: Judicial Review of a Medical Appeal Panel Decision and Medical Assessment Certificate in a Workers Compensation Medical Dispute / Principal Judgment on Summons Filed on 8 June 2023 After Hearing on 27 February 2024
Outcome: Ground (a) was made out; ground (b) was rejected; the Medical Assessment Certificate was set aside; the matter was remitted; the first defendant was ordered to pay the plaintiff's costs; otherwise the summons was dismissed.
Legal Topics: ['medical Assessment Certificate' 'whole Person Impairment' 'deduction for Pre Existing Condition Under S 323 of the Workplace Injury Management and Workers Compensation Act 1998 (nsw)' 'jurisdictional Error' 'error of Law on the Face of the Record' 'adequacy of Reasons' 'remittal to Personal Injury Commission']

['administrative Law' 'workers Compensation' 'judicial Review'] ['medical Assessment Certificate' 'whole Person Impairment' 'deduction for Pre Existing Condition Under S 323 of the Workplace Injury Management and Workers Compensation Act 1998 (nsw)' 'jurisdictional Error' 'error of Law on the Face of the Record' 'adequacy of Reasons' 'remittal to Personal Injury Commission']

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Procedural Posture

Judicial Review of a Medical Appeal Panel Decision and Medical Assessment Certificate in a Workers Compensation Medical Dispute / Principal Judgment on Summons Filed on 8 June 2023 After Hearing on 27 February 2024

Legal Issues

1 ['Whether the Second Appeal Panel failed to give adequate reasons because paragraph 53 of its reasons contained the words "because." followed by a full stop.' 'Whether the Second Appeal Panel erred in applying s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) by making a 10% deduction for pre-existing lumbar degeneration.' 'Whether the Panel was required to determine whether a portion of the assessed impairment was due to the pre-existing condition and not the workplace injury, rather than merely finding that the pre-existing condition contributed to the occurrence of the injury.' 'Whether the established error amounted to jurisdictional error or error of law on the face of the record.' 'Whether the Court should direct that a differently constituted Appeal Panel issue a certificate assessing 15% whole person impairment.']

Ratio Decidendi

Court Disposition

Ground (a) was made out; ground (b) was rejected; the Medical Assessment Certificate was set aside; the matter was remitted; the first defendant was ordered to pay the plaintiff's costs; otherwise the summons was dismissed.

Orders

['The Medical Assessment Certificate issued by the third defendants on 16 March 2023 is set aside.' 'The matter is remitted to the Personal Injury Commission to be heard and determined by a differently constituted Appeal Panel under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) in...