//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 917
Supreme Court of NSW
2026-07-31
Elkaim AJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Brewer v JB Hi-Fi Group Pty Ltd [2026] NSWSC 917
Hearing dates: 29 July 2026
Date of orders: 31 July 2026
Decision date: 31 July 2026
Jurisdiction: Common Law
Before: Elkaim AJ
Decision: 1. The decision of the third defendant dated 22 August 2025 is declared to be void and of no effect pursuant to s 69 of the Supreme Court Act 1970 (NSW).
2. The decision of the third defendant is set aside.
3. The matter is remitted to the President of the Personal Injury Commission of New South Wales to be determined according to law.
4. The first defendant is to pay the plaintiff’s costs of these proceedings.
5. No order is made as to costs in respect of the second and third defendants.
Catchwords: ADMINISTRATIVE LAW — judicial review — Appeal Panel of Personal Injury Commission — whether the Appeal Panel made an error of law by excluding the plaintiff’s belief as to her capacity to function without her husband’s support when rating the plaintiff’s functional impairment for the category of self care and personal hygiene — whether error material
Legislation Cited: Supreme Court Act 1970 (NSW), s 69
Workers Compensation Act 1987 (NSW), ss 65A, 151H
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 323(2)
Cases Cited: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34
Kempe v Complete Community Services Pty Ltd [2022] NSWSC 1095
Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Zoric v Secretary, Department of Education [2024] NSWSC 131
Texts Cited: NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment 4th ed.
Category: Principal judgment
Parties: Jessica Brewer (Plaintiff)
JB HI-FI Group Pty Ltd (First Defendant)
Personal Injury Commission (Second Defendant)
Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Third Defendant)
Representation: Counsel:
J Hart (Plaintiff)
L D Robison (First Defendant)
Solicitors:
Law Partners (Plaintiff)
Hall & Wilcox (First Defendant)
NSW Crown Solicitor (Second & Third Defendants)
File Number(s): 2025/451895
Publication restriction: No
The proceedings were commenced on 21 November 2025 with the filing of a summons seeking judicial review of a decision made by the third defendant on 22 August 2025.
The plaintiff was employed by the first defendant between 2018 and early 2024. She worked in a retail capacity. During the course of her employment, she was allegedly sexually harassed by a fellow employee. The harassment caused her to leave work. The plaintiff made a claim for permanent impairment compensation on 7 August 2024 resulting from psychiatric injury.
A psychiatrist, Dr Kumagaya, assessed her as having a whole person impairment (WPI) of 19%. The first defendant obtained a report from a Dr Honey, who declined to assess the plaintiff’s WPI as he did not think that she had reached maximum medical improvement.
The plaintiff commenced proceedings in the Personal Injury Commission which assigned a medical assessor, Dr Mason, to examine her. Dr Mason assessed the plaintiff’s WPI at 17% (19% WPI with a 10% reduction for pre-existing conditions).
The first defendant lodged an appeal against Dr Mason’s assessment which came before the third defendant, an Appeal Panel (the Panel). The Panel did not re-examine the plaintiff but proceeded on the medical records.
The Panel gave its decision on 22 August 2025. It found that there had been a “demonstrable error” in Dr Mason’s assessment and re-assessed the plaintiff’s WPI at 8% (9% reduced by one-tenth). This has significant consequences for the plaintiff due to the 15% WPI threshold required to claim compensation for non-economic loss or work injury damages: ss 65A and 151H of the Workers Compensation Act 1987 (NSW). The changes to s 151H commencing on 1 July 2026, raising the threshold for psychological injury to 25%, do not apply to this plaintiff.
According to the summons, the Panel’s assessment contains an error of law on the face of the record, and/or a jurisdictional error in applying the relevant guidelines and legislation. The plaintiff wishes the Panel’s assessment to be set aside and for the matter to be remitted to the Personal Injury Commission.
The second defendant is the President of the Personal Injury Commission. The third defendant is the Panel. The second and third defendants have filed submitting appearances.
The first defendant opposes the orders sought by the plaintiff.
The assessment process works in this way. The assessor examines the plaintiff (either in person or by records) and then applies guidelines for the evaluation of permanent impairment. In this case, the relevant guidelines are for psychiatric and psychological disorders and are contained in Chapter 11 of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed (the Guidelines).
The Guidelines and s 323(2) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) make provision for a deduction of 10% for a pre-existing impairment if the percentage of pre-existing impairment cannot be assessed. As seen above, this deduction was applied in the last 2 assessments of the plaintiff, but no issue is taken by any party concerning the deduction.
The Guidelines separate the behavioural consequences of a psychiatric disorder into six “scales” or categories of functional impairment. These scales are:
Self care and personal hygiene
Social and recreational activities
Travel
Social functioning (relationships)
Concentration, persistence, and pace
Employability
Each of the scales is assessed with the worker being placed within one of five classes, each of which rates the worker’s condition according to its severity. Class 1 is the least severe. Class 5 is the most severe.
Once the above classification has been made, a median class score is calculated under cl 11.14 of the Guidelines (effectively the middle value of the scores).
After arriving at a median class score, an aggregate score is calculated and then converted to a percentage using a conversion calculator in Table 11.7 of the Guidelines. The percentage will then be the WPI.
The respective assessors classified the plaintiff in this way:
Dr Kumagaya (WPI 19%):
Self care and personal hygiene – Class 2
Social and recreational activities – Class 3
Travel – Class 2
Social functioning – Class 2
Concentration, persistence, and pace – Class 3
Employability – Class 5
Dr Honey did not make an assessment because he did not think maximum improvement had been achieved.
Dr Mason (WPI 17%):
Self care and personal hygiene – Class 3
Social and recreational activities – Class 3
Travel – Class 2
Social functioning – Class 2
Concentration, persistence, and pace – Class 2
Employability – Class 5
The Panel (WPI 8%):
Self care and personal hygiene – Class 2
Social and recreational activities – Class 3
Travel – Class 2
Social functioning – Class 2
Concentration, persistence, and pace – Class 2
Employability – Class 5
The above assessments of the plaintiff show that the only difference between the Panel’s assessment and that of Dr Mason relates to self care and personal hygiene but this ‘minor’ difference translates, after conversion, to a significant lowering of the WPI. This is because the median class score has come down from 3 to 2 so that a different line in the conversion table is applied.
“38. The history the Medical Assessor obtained was that before the respondent suffered her injury she showered more than once daily, and that subsequent to suffering her injury she showers daily partly to calm herself, she changes her clothes regularly, she has fluctuating body weight, and she relies on her husband to do laundry and cooking. The Medical Assessor also took into account the respondent’s belief that she would neglect her appearance and nutrition without her husband present and would suicide if he was not with her.
- It was based on these reasons that the Medical Assessor rated the respondent’s impairment as moderate.
40. The Appeal Panel agrees with the appellant’s submission to the effect that it is speculative how the respondent would function in her self-care and personal hygiene if her husband were not with her. The Medical Assessors members of the Appeal Panel consider that no inference can be drawn based on the evidence before the Appeal Panel, which includes the history the Medical Assessor obtained, regarding how the respondent would function with her self-care and personal hygiene if her husband were not with her, given the degree of functioning she reports currently doing of her own accord. The Medical Assessor, when rating the respondent’s impairment in self-care and personal hygiene was wrong to consider the respondent’s belief about her capacity (or, in the negative, impairment) in a future hypothetical situation. What is relevant is the respondent’s function/impairment in her self-care and personal hygiene on the day of the assessment.
41. What the evidence reveals is that the respondent is able to manage all aspects of her self-care independently other than doing her laundry and cooking, in regards to which she relies on her husband. The Appeal Panel considers that it is irrelevant that the respondent suggests that her reason for showering daily is in part to calm herself down. What is relevant is that she has the capacity to undertake this aspect of her self-care daily, with no record that this requires any assistance or prompting.
42. The Appeal Panel notes that the respondent in her statement described missing meals and showers, and not brushing her teeth. But that is not the history the Medical Assessor obtained on 8 April 2025 when he examined the respondent. As said, the Medical Assessor was required to conduct his examination based on the respondent’s presentation and function at the time of assessment, that is, based on her impairment at the time of his examination of her, which is when he composed the history by reference to which he made his assessment.
- As said, the Appeal Panel considers the Medical Assessor was wrong to rate the respondent’s impairment as Class 3. This is because the respondent’s impairment is not such that she cannot live independently without regular support, as affirmed by the appellant herself in her statement of 11 February 2025. There is no evidence she must rely on family members or her husband or a community nurse to ensure a minimum level of hygiene and nutrition. In other words, the level of severity of her impairment in self-care and personal hygiene does not accord with a severity of impairment described by the examples for a Class 3 impairment. The level of her impairment, in the Appeal Panel’s view, accords with a level of impairment described by the examples for a Class 2 impairment in that she is able to live independently because she is able to manage most elements of her self-care and personal hygiene without the need for support and has the capacity to look after herself adequately. The Medical Assessor’s exercise of his clinical judgment in rating the respondent’s impairment in self-care and personal hygiene as Class 3 consequently involved error. The Appeal Panel, in correcting that error, rates the respondent’s impairment in self-care and personal hygiene as Class 2.”
“The nub of the plaintiff’s complaint is that the Appeal Panel’s analysis reveals that it made an error of law on the face of the record and/or jurisdictional error in concluding that the respondent’s belief about her capacity in a ‘future hypothetical situation’ is irrelevant.”
The complaint therefore is that the conclusion by the Panel that Dr Mason was “wrong” to consider a hypothetical situation was an error on the face of the record, and/or an error of law amounting to a jurisdictional error. According to the plaintiff, the Panel’s exclusion of this consideration as irrelevant discloses that it either asked itself the wrong question (although it was not clear what in fact the right question was) and/or (to the extent that the grounds are distinct) misunderstood and misapplied the Guidelines, which must be applied when assessing WPI. The plaintiff contends that, in either case, the Panel constructively failed to exercise its jurisdiction, relying on Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [41] and Zoric v Secretary, Department of Education [2024] NSWSC 131 at [55].
It is first of all necessary to set out the Class 2 and 3 definitions for self care and personal hygiene:
“Class 2: Mild impairment: able to live independently; looks after self adequately, although may look unkempt occasionally; sometimes misses a meal or relies on take-away food.
Class 3: Moderate impairment: Can’t live independently without regular support. Needs prompting to shower daily and wear clean clothes. Does not prepare own meals, frequently misses meals. Family member or community nurse visits (or should visit) 2-3 times per week to ensure minimum level of hygiene and nutrition.”
The first point made by the plaintiff is that Dr Mason was not considering a hypothetical circumstance, rather he was considering the current condition of the plaintiff in respect of her anticipation of what might happen in the future. In other words, the plaintiff’s anxiety about her husband being absent in the future was an anxiety currently operating on the plaintiff’s mind.
In turn, if the anxiety was a current influence on the plaintiff’s condition, it fell within Class 3 as being an indication that she “Can’t live independently without regular support.”
An extension of the plaintiff’s argument is that the placement of the plaintiff within Class 2 or Class 3 should involve consideration of a counterfactual, namely whether the plaintiff could live independently without her husband. The beginning words of Class 3 “Can’t live independently without regular support” are a precise summary of the plaintiff’s position, namely that she could not live independently if her husband was not present.
In addition, the plaintiff submitted that her reliance on her husband for support is itself an indication that she fits within Class 3 because her husband provides “regular support”.
The plaintiff submitted that Class 4 assumes an inability to live independently so that in distinguishing between Classes 2 and 3 it was necessary for the Panel to examine the basis upon which the worker could live independently, in particular whether or not independent living was only possible with support. If the plaintiff said, and was believed, that she could not live without her husband’s support that was a significant indication she fell into Class 3, because it meant she relied upon regular support.
The first defendant submitted that the Panel was obliged to make its assessment on the facts that it had found. Because the Panel did not re-examine the plaintiff it was confined to the facts before Dr Mason. That it had a different interpretation of those facts, was not an error, but rather the reaching of a different conclusion when the facts were “interfaced with the Psychiatric Injury Rating Scale (PIRS) criteria.”
The first defendant submitted that the Panel acted in accordance with cl 1.6(a) of the Guidelines which states:
“a. Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant’s relevant medical history and all available relevant medical information to determine:
• whether the condition has reached Maximum Medical Improvement (MMI)
• whether the claimant’s compensable injury/condition has resulted in an impairment
• whether the resultant impairment is permanent
• the degree of permanent impairment that results from the injury
• the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines.”
The words “present on the day” emphasise the need to assess the worker’s functioning on the day of the assessment, and not on the basis of a future hypothetical scenario “in which the worker’s circumstances might be worse.” I observe here that the scenario envisaged by the plaintiff is not one in which her condition has worsened, rather it has remained the same, but she has lost the support given to her by her husband.
The first defendant concluded that even if the Panel had made an error in not taking into account the counterfactual, that would amount to an error within jurisdiction and would not lead to relief by way of judicial review. Two cases were quoted in support of this submission (Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [17]-[31] and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3, at [81]-[95]).
“This is because the respondent’s impairment is not such that she cannot live independently without regular support, as affirmed by the appellant herself in her statement of 11 February 2025. There is no evidence she must rely on family members or her husband or a community nurse to ensure a minimum level of hygiene and nutrition.”
“I am reliant on my husband to undertake laundry, cooking and cleaning, as I find my motivation is generally very low.”
I would have thought that a reliance on another person for cooking is potent evidence going towards the maintenance of a minimum level of nutrition. On the plaintiff’s statement, and on the findings made by Dr Mason, I think the plaintiff more obviously falls within Class 3 than Class 2.
Having made this observation, I nevertheless do not think that my view of which class the plaintiff should have been put into, would be enough to allow the judicial review. In addition, the submission made by the plaintiff that the Panel had asked itself “the wrong question” may also not be an appropriate inquiry in this context. I think these excerpts from the decision of Basten AJ in Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [64] and [68] explain this conclusion.
“64. These examples are apposite because the plaintiff complained that he had been placed in class 2, rather than class 3, with respect to social functioning. Two observations may be made about such a complaint. First, as the guidelines indicate, ‘[e]valuation of psychiatric impairment is conducted by a psychiatrist who has undergone appropriate training in this assessment method’. It is, self-evidently, no function of this Court to review the classification by the Appeal Panel. Nor, as has occasionally been considered, would it be appropriate for this Court to identify from the reasons that the Appeal Panel has asked itself ‘the wrong question’, thereby establishing error of law. While extreme cases where error may be established can be imagined, they will be readily apparent because the Appeal Panel has confused one appellant with another or made some equivalent manifest error, sufficient to constitute an error of law on the face of the record, or jurisdictional error.
…
68. The Appeal Panel set out the relevant criteria, considered the evidence and concluded that there was no error in classifying his condition as falling within class 2. The proposition set out above does no more than state a degree of disagreement about the proper classification. It has been said that mere disagreement with the outcome does not give rise to a basis for intervention. That is true, but that is because such a ‘disagreement’ relates to a factual assessment and, in its terms, engages no legal principle and therefore cannot demonstrate error of law on the face of the record.” (footnotes omitted)
It must follow that the mere fact that I think the Panel placed the plaintiff into the wrong class is a factual assessment which “engages no legal principle and therefore cannot demonstrate error of law on the face of the record.”
The plaintiff’s submissions as to the relevant error of law fall within this passage from Yusuf at [41]:
“For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be ‘an actual failure to exercise jurisdiction’. On the other hand, there is said to be a ‘constructive failure to exercise jurisdiction’ when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.” (footnotes omitted)
The plaintiff’s point is that the Panel failed to take a relevant matter into account, the relevant matter being the plaintiff’s inability to live independently without her husband’s support if he were not present.
That the plaintiff’s perception is relevant is not however the only consideration before reaching a conclusion that a decision is susceptible to judicial review. It is to be remembered that the Panel was making a decision within the bounds of the legislative umbrella dictating its function. Returning to the two cases relied upon by the first defendant, in Hossain this was said, at [23]:
“Jurisdiction, in the most generic sense in which it has come to be used in this field of discourse, refers to the scope of the authority that is conferred on a repository. In its application to judicial review of administrative action the taking of which is authorised by statute, it refers to the scope of the authority which a statute confers on a decision-maker to make a decision of a kind to which the statute then attaches legal consequences. It encompasses in that application all of the preconditions which the statute requires to exist in order for the decision-maker to embark on the decision-making process. It also encompasses all of the conditions which the statute expressly or impliedly requires to be observed in or in relation to the decision-making process in order for the decision-maker to make a decision of that kind. A decision made within jurisdiction is a decision which sufficiently complies with those statutory preconditions and conditions to have ‘such force and effect as is given to it by the law pursuant to which it was made’.” (footnotes omitted)
“The question, and the answer, as to whether jurisdictional error is made out is thus to be found in the statute. It is by construing the statute that conferred the power, so as to understand the limits of the power, that it is possible to determine whether a decision-maker has made an error, and whether any error is jurisdictional. Of course, that process of construction does not occur in a vacuum but is shaped by reference to principles and traditions of the common law. But for present purposes it is unnecessary to enter the debate as to whether the rules underpinning grounds of review are better understood as statutory implications or as arising from the common law. A finding of jurisdictional error is a conclusion that the decision-maker has failed to comply with an essential pre‑condition to, or limit on, the valid exercise of the particular statutory power. It reflects a distinction between acts unauthorised by law, and acts that are authorised.” (footnotes omitted)
“30. There was also broad agreement between the parties concerning the principles to apply in construing the Guidelines. Although the Guidelines are neither a statute nor subordinate legislation, they have been held to have the effect of subordinate legislation: see Ballas v Department of Education (NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [97] per Bell P and Payne JA. They are issued under s 376 of the 1998 Act and, by dint of the operation of ss 3(1) and 5(2) of the Interpretation Act 1987 (NSW), they are also an ‘instrument’ to which that Act applies subject to a contrary intention. Generally speaking, therefore, the ordinary principles of legislative construction apply to the Guidelines (see Robbie v Strasburger Enterprises Pty Ltd t/as Quix Food Stores [2017] NSWSC 363 at [61]–[63] per N Adams J). Thus considerations of text, context and purpose are important (see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] per Kiefel CJ, Nettle and Gordon JJ, [37]–[40] per Gageler J). Appropriate allowance needs to be made for the form of the Guidelines, which is not the form of primary or secondary legislation.
…
32. Pursuant to s 322(1) of the 1998 Act, the Guidelines have to be applied in assessing the degree of a person’s permanent impairment. In that sense, it may be more appropriate to describe the Guidelines as instructions, given that they are binding on decision-makers.”
“9. Where it is alleged in an application for judicial review that a decision is affected by jurisdictional error constituted by a breach of an express or implied condition of a conferral of decision-making authority by a statute which incorporates a requirement of materiality, there are two questions: has an error occurred; and, if so, was that error material.
…
13. The applicant must satisfy the court on the balance of probabilities that the alleged error in fact occurred. Unless the error is of a type such as those identified at [6] above (where the error is always material and therefore jurisdictional), whether the error is, or is not, material is determined by inferences drawn from the evidence adduced on the application.
- The question in these cases is whether the decision that was in fact made could, not would, ‘realistically’ have been different had there been no error. ‘Realistic’ is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.” (footnotes omitted)
I think it important to first of all precisely identify the error. The error is the Panel’s conclusion that it was “wrong” of Dr Mason to take into account the plaintiff’s concern about being able to live without her husband’s support, because this was a hypothetical scenario that did not exist when the plaintiff was examined.
I disagree that the scenario was necessarily hypothetical and therefore irrelevant. It was a concern held by the plaintiff when she was examined. It is to be recalled that the plaintiff was suffering mental health issues. Her diagnosis by Dr Mason, arising from the harassment, was of post-traumatic stress disorder and major depressive disorder with anxious distress. Anxiety about a possible future can be an expression of a present anxiety. At the time she was examined it was both a belief and a source of anxiety on the plaintiff’s part that she could not live independently in the absence of her husband. In my view the belief was not only relevant but a part of her condition when she was examined.
In addition, if the absence of her husband’s support is looked at as a counterfactual, the fact that he would not be present to provide the services that he currently provides, highlights the relevance as to whether she falls within Class 2 or Class 3. In order to fall under Class 3, there needs to be an inability to “live independently without regular support”. The absence of her husband’s support, looked at as a counterfactual, bears on her inability to live independently.
The next question is whether the error was material. I do not suggest that taking into account the plaintiff’s anxiety about the future would have necessarily placed her into Class 3, but I am satisfied it could have done so, in particular reading these words from Class 3: “Can’t live independently without regular support”.
It follows that I am satisfied the plaintiff has established jurisdictional error entitling her to the orders sought in the summons.
**********
Brewer
JB Hi-Fi Group Pty Ltd
[2001] HCA 30
(2018) 264 CLR 123
(2024) 280 CLR 321
(2019) 264 CLR 421
(2001) 206 CLR 323
(2020) 102 NSWLR 783
(2017) 262 CLR 362