Sabanayagam v St George Bank Limited

[2016] NSWCA 145

NSW Court of Appeal

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Interrogate

Catchwords

1. Workers Compensation
2. › Jurisdiction of Workers Compensation Commission
3. › Work capacity decisions
4. › Whether insurer's decision to terminate weekly payments was a 'work capacity decision'
5. › Whether insurer exercised powers conferred by statute
6. › Whether privative clause applied to decision insurer had no authority to make
7. › Workers Compensation Act 1987 (NSW), ss 32A, 38, 43(1), 43(3)
1. Workers Compensation
2. › Jurisdiction of Workers Compensation Commission
3. › Work capacity decisions
4. › Exclusions from definition
5. › Whether decision was 'a decision to dispute liability for weekly payments of compensation'
6. › Whether decision was 'a decision that can be the subject of a medical dispute'
7. › Workers Compensation Act 1987 (NSW), s 43(2)(a), (b)
8. › Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 74, 319
1. Administrative Law
2. › Privative clauses
3. › Scope of protection
4. › Whether privative clause protects decision that decision-maker had no authority to make
5. › Whether purported exercise of non-existent power attracts privative clause protection
6. › Workers Compensation Act 1987 (NSW), s 43(1)
1. Appeal
2. › Appeal on point of law
3. › Finding of fact without evidence
4. › Whether drawing inference without evidentiary support constitutes error of law
5. › Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353(1)

Quick Take

An insurer's decision to terminate weekly compensation payments is not a 'work capacity decision' within s 43(1) of the Workers Compensation Act 1987 (NSW) where the insurer purports to decide matters (such as whether the worker still suffers from an injury or is still incapacitated) that the legislation does not empower it to decide. The privative clause in s 43(1) and the jurisdictional exclusion in s 43(3) do not apply to such decisions, and the Workers Compensation Commission retains jurisdiction to determine disputes about them. Section 43(1)(f) refers only to decisions that Division 2 of Part 3 empowers an insurer to make, and cannot convert an unauthorised decision into a protected work capacity decision.