Chhay Lim v Kaybron Pty Ltd [2020] NSWSC 1447

Supreme Court New South Wales

Medium Neutral Citation: Chhay Lim v Kaybron Pty Ltd [2020] NSWSC 1447 Hearing dates: 16 June 2020 Date of orders: 22 October 2020 Decision date: 22 October 2020 Jurisdiction: Common Law Before: Hamill J Decision: (1) The decision of the Appeal Panel dated 19 August 2019 is quashed. (2) The Appeal Panel's Medical Assessment Certificate bearing the date 16 August 2019 is quashed. (3) The matter is to be remitted to the Workers Compensation Commission to be dealt with according to law. (4) The defendant has until 29 October 2020 to file written submissions of no longer than 3 pages if it seeks to be heard against an order that "the defendant is to pay the plaintiff's costs". (5) The plaintiff has until 5 November 2020 to make written submissions in reply to the defendant's costs submissions. Catchwords: CIVIL LAW – judicial review - diagnostic conundrum - perplexing factual landscape - Bloomsday hearing – jurisdictional ping pong - workers compensation - somatic symptom disorder - severe depressive disorder - secondary psychological injury - whether Appeal Panel bound by agreement between the parties - procedural fairness - where Appeal Panel examines injured worker for itself - whether Panel required to provide report to parties - no general obligation to provide report - turns on circumstances of the case - circumstances required disclosure - limited nature of appeal process - where report raised matters outside grounds advanced by the parties - where worker had no memory of incident - whether lack of memory means any psychological injury is a secondary one Legislation Cited: Supreme Court Act 1970 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury and Management Act 1998 (NSW) Cases Cited: Bindah v Carter Holt Harvey Woodproducts Australia Pty Limited [2014] NSWCA 264 Campbelltown City Council v Vegan & Ors (2006) 67 NSWLR 372; [2006] NSWCA 284 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 Estate of Heinrich Christian Joseph Brockmann v Brockmann Metal Roofing Pty Limited and Ors [2006] NSWSC 235 Haroun v Rail Corporation of New South Wales & Ors [2008] NSWCA 192 Maricic v The Registrar, Workers Compensation Commission [2011] NSWCA 42 Mercy Centre Lavington Ltd v Kiely & Ors [2017] NSWSC 1234 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Minster for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 NSW Police Force v the Registrar of the Workers Compensation Commission of NSW [2013] NSWSC 1792 Siddik v WorkCover Authority of NSW [2008] NSWCA 116 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346 Texts Cited: American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed Second Reading Speech, Workers Compensation Legislation Amendment Bill 2018 (NSW), 19 September 2018 SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 Category: Principal judgment Parties: Chhay Lim (Plaintiff) Kaybron Pty Ltd (First Defendant) Registrar of the Workers Compensation Commission of NSW (Second Defendant) The Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (Third Defendant) Representation: Counsel: B McManamey (Plaintiff) M Best (First Defendant)