ACCIDENT COMPENSATION - Workplace injury - Psychiatric injury - Damages - Assessment of damages - Leave granted to plaintiff to commence proceeding under s 134AB(16)(b), Accident Compensation Act 1985 - Consequences in later proceeding at common law for damages - Ambit of issue estoppel - Appeal dismissed.

ACCIDENT COMPENSATION - Case Stated - Workplace injury - Psychiatric injury - Opinion of Medical Panel pursuant to s 67, Accident Compensation Act 1985 that degree of impairment in excess of 30 per cent - Injury deemed to be serious injury pursuant to s 134AB(15), Accident Compensation Act 1985 - Consequences for later proceeding at common law for damages.

1 Before the Court, in Brumar (Vic) Pty Ltd v Norris, ('Norris'), is an appeal against a judgment for damages entered in favour of the respondent in the Trial Division on 9 June 2009. It raises, inter alia, a question as to the consequences, in a proceeding at common law for damages, of a decision made under s 134AB (16)(b) of the Accident Compensation Act 1985 (Vic) ('the Act') granting leave to the plaintiff to commence that proceeding.

2 Also before the Court, in Brown v Maurice Blackburn Cashman ('Brown'), there is a special case stated by a County Court judge pursuant to s 76(1) of the County Court Act 1958. It raises a question as to the consequences, in a proceeding at common law for damages, of it being deemed, pursuant to s 134AB(15) of the Act, that the plaintiff suffers from a serious injury.

3 In each case, though in different ways, s 134AB of the Act as it stood prior to amendment by Act No 9/2010 falls for consideration. One of the amendments was to sub-s (19), which in its unamended form is of central importance in Norris.

4 Another section of the Act which requires consideration, in this instance in the Brown matter, is s 104B. Again, that section has been amended from the form in which it stood at relevant times.

5 In these reasons, except if the contrary is stated, all references to ss 134AB and 104B are to the sections as they stood prior to amendment. That is so even where the language of my reasons is expressed in the present tense.

6 Broadly, the questions identified in [1] and [2] require determination, according to the legislation operative in the particular case, whether a defendant is precluded from contending at trial of a common law proceeding that the worker did not suffer serious injury - this preclusion encompassing the findings fundamental to the conclusion that the injury constituted 'serious injury' - a term with a defined meaning under s 134AB; or whether there is some other, and lesser, preclusion.

7 Patricia Norris worked for the appellant Brumar as a service station attendant. Shortly after midnight on 11 December 1999, the service station was the subject of a violent robbery by a man who was disguised and armed. On her account, the incident caused her severe psychiatric injury - post traumatic stress disorder and severe depression.

8 In July 2005 a County Court judge heard an application made by Ms Norris under s 134AB(16)(b) of the Act for leave to bring a proceeding for damages. In February 2006 he delivered reasons for judgment in her favour, and made an order granting her the leave sought. To find in her favour, the judge was required to be satisfied on the balance of probabilities that 'the injury is serious injury'.[1]

9 Ms Norris's proceeding came to trial in late May 2009. What relevantly occurred is set out in the reasons for judgment of the learned judge below:

The trial of this proceeding commenced on 26 May 2009 before a jury. However, during the course of the trial it became apparent that the plaintiff had obtained the leave of the County Court pursuant to s 134AB(16)(b) to commence this proceeding. After hearing argument, I ruled that the granting of leave by the County Court created an estoppel in favour of the plaintiff on the issue of 'serious injury'. Specifically, I ruled that the defendant was estopped from denying that as at July 2005[2] the plaintiff suffered from a permanent severe mental or permanent severe behavioural disturbance or disorder. It was severe by reference to the consequences to the plaintiff of the mental or behavioural disturbance or disorder with respect to pain and suffering and loss of earning capacity - when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders. Further, it was severe because the pain and suffering consequences and loss of earning capacity consequences when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders were more than serious - to the extent of being severe. This was permanent as at July 2005 - at least in the sense of being 'likely to last for the foreseeable future'.[3]

Upon the delivery of this ruling, the plaintiff made application pursuant to Rule 47.02 for the jury to be discharged and the proceeding to continue before me as a cause. The application was made on the basis that the defendant, in cross-examining the plaintiff and the plaintiff's psychiatrist, Dr Kruse, had sought to dispute the matters the subject of the estoppel. Further, the defendant had asserted that it would call evidence from psychiatrists contradicting the serious injury determination made in July 2005 by the County Court. Indeed, the tenor of the defendant's cross-examination of the plaintiff and her witnesses up until the time of the estoppel ruling was to the effect that the plaintiff was not severely impaired and had for many years been fit for suitable employment. I acceded to the plaintiff's application and discharged the jury because of these matters and the fact that under s 134AB(23) the jury could not be informed of the basis upon which the estoppel arose. In the circumstances I was of the view that a fair trial with the empanelled jury was no longer possible.[4]

10 To that account of events, I add the following: First, it was the judge who raised the possible operation of an estoppel. He did so after cross-examination of Ms Norris disclosed that there had been a previous court case. That led on to it being revealed that the previous matter had been a contested application under s 134AB(16)(b). Second, assuming that an estoppel could have been pleaded,[5] it was not. But once the matter was raised by the judge, its substance was argued. In this Court, no point of form was raised. Again, the substance of the matter was debated. Third, in this appeal Brumar also challenges the judge's discharge of the jury, and his Honour's assessment of damages. These are issues to which I will later return.

11 The circumstances in Brown are conveniently set out in the ruling of the learned judge that a special case should be stated for the opinion of this Court:

This proceeding was commenced by the plaintiff by writ dated 18 July 2007. The defendant is a firm of legal practitioners. At relevant times the plaintiff was employed by the defendant as a salaried partner in the Family Law Section of the defendant's legal practice in Melbourne.

A statement of claim delivered with the writ claims that between 8 January 2003 and 17 November 2003 the plaintiff was 'systematically undermined, harassed and humiliated' by a fellow employee, and that complaints and requests for intervention by the plaintiff to the managing partner went unanswered.

As a result the plaintiff claims to have been injured in her workplace, and to have suffered loss and damage. The particulars of injury pleaded by the plaintiff are as follows:

(a) Adjustment disorder with severe anxiety and depression.

(b) Resultant somatic symptoms, including eczema and headaches.

(c) Resultant agoraphobia.

(d) Pain and suffering.

The cause of action arises in negligence. The plaintiff claims that she has suffered the injuries as a result of the negligence of the defendant. The proceeding can only be commenced in compliance with the provisions of S.134AB of the Accident Compensation Act 1985 ('the Act').

On 24 March 2006 GIO Workers Compensation (Australia) Ltd, as agent for WorkCover, referred the plaintiff for opinion of a medical panel set up under the Act. The panel was asked to answer two medical questions pursuant to s.104B(9) of the Act. Those questions and answers were in the following terms... :

(a) What is the degree of impairment resulting and the accepted injury/s assessed in accordance with s.91, and is the impairment permanent?

The answer was: 'The panel is of the opinion that there is a 30 per cent psychiatric impairment resulting from the accepted psychological injury when assessed in accordance with s.91(2) for the purposes of ss.98C, and 134AB(3) and (15) of the Act. The degree of psychiatric impairment is permanent within the meaning of the Act.'

The second question was:

(b) Does the worker have an accepted injury which has resulted in a total injury mentioned in the table in s.98E(1)?

Answer: 'No'.

Because of the degree of impairment of the plaintiff had been assessed by the medical panel to be 30 per cent, her injury was deemed to be a serious injury within s.134AB(15) of the Act. There was thus no hindrance to the plaintiff to commence the proceeding.

In its amended defence the defendant denies that it owed a duty to the plaintiff in the circumstances, and it denies that the plaintiff has suffered injury.

In its amended reply to the amended defence the plaintiff joins issue with the defendant, and raises other matters including the fact that the defendant is estopped, or precluded from going behind the opinion of the medical panel. By its rejoinder to the amended reply the defendant joins issue.

[Senior counsel for the plaintiff] has advised me pre-empanelment that he will be objecting to [senior counsel for the defendant] cross-examining the plaintiff or other medical witnesses called by the plaintiff in a way which suggests the plaintiff suffered no injury, or no serious injury. [He]will also object to the calling of evidence to that effect.

12 As the learned judge noted, counsel for Ms Brown relied upon ss 68(4) and 104B(12) and 134AB(15) of the Act. Those provisions do not fall for consideration in Brumar.

13 In order to understand the ruling, and the submissions made in this Court, I should set out s 134AB(16)(b) and (19) of the Act. Later in these reasons, it will be necessary to mention other parts of s 134AB.

(16) If the assessment under section 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless -

...

(b) a court, other than the Magistrates' Court, on the application of the worker made within 30 days after the worker received advice under sub-section (7) or, with the consent of the Authority under sub-section (20), after that period, gives leave to bring the proceedings.

...

(19) For the purposes of subsection (16)(b) -

(a) a court, other than the Magistrates' Court, must not give leave unless it is satisfied on the balance of probabilities that the injury is a serious injury;

(b) for the purposes of proving a loss of earning capacity in accordance with subsection (38), a worker bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional employment and the extent of such inability;

(c) no finding (other than a finding that the injury is a serious injury) made on an application for leave to bring proceedings shall give rise to an issue estoppel.

14 The relevant parts of the ruling were as follows:

1. During the course of cross-examination of the plaintiff and her first medical witness (Dr Kruse), Senior Counsel for the defendant put to the plaintiff that the defendant would be calling psychiatrists who would give evidence that the plaintiff's psychiatric injury (if any) was (and has been for many years) mild. The present proceeding is brought by the plaintiff pursuant to leave having been given in the County Court by Judge Dove on 15 February 2006 pursuant to s 134AB(16)(b). That section provides:

'If the assessment under s 104B of the degree of impairment of the worker as a result of the injury is less than 30 per centum, the person may not bring proceedings for the recovery of damages in respect of the injury unless -

(a) ...; or

(b) a Court, other than the Magistrates' Court, on the application of the worker made within 30 days after the worker received advice under subsection (7) or, with the consent of the authority under subsection (20), after that period, gives leave to bring the proceedings.'

1. The plaintiff obtained leave to bring this proceeding because she established that she had sustained a 'serious injury' within the meaning of s 134AB. The relevant part of the definition of serious injury which was established by the plaintiff was paragraph (c), namely that she had a 'permanent severe mental or permanent severe behavioural disturbance or disorder'.
2. The issue in this ruling is whether or not the defendant can seek to re-agitate the question of whether the plaintiff has a permanent severe mental or permanent severe behavioural disturbance or disorder. Section 134AB(19)(c) provides:

'For the purposes of sub-s (16)(b) -

(c) no finding (other than a finding that the injury is a serious injury) made on an application for leave to bring proceedings shall give rise to an issue estoppel.'

1. In Dwyer v Calco Timbers Pty Ltd, Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ said at p 130 [11]:

'If leave had been given, the statutory barrier to the bringing of proceedings by the appellant for the recovery of damages would have been removed. In that action for damages the appellant would have had in his favour an issue estoppel arising from the finding that his injury was a "serious injury", but no other estoppel. This would have followed from paragraph (c) of sub-s (19). The provision respecting the issue estoppel both reflects the importance (by reason of its finality) of the determination in any leave application of the issue of "serious injury" and highlights the requirement that the reasons of the County Court be as extensive and complete as those at a trial of the action.'

1. On a plain reading of the High Court's judgment, the plaintiff in this case has in her favour an issue estoppel arising from the finding that her injury was a 'serious injury'. In answer to this proposition, Senior Counsel for the defendant contended that the issue of serious injury and its definition was merely a gateway for the bringing of common law proceedings. However, this submission simply ignores the High Court's judgment.
2. The defendant's next response was to rely upon s 134AB(23)(b). That section provides:

'In the trial of a proceeding brought under this section, a jury must not be informed -

(b) that any injury in respect of which the proceeding has been brought has been deemed, found, or required to be found, to be a serious injury.'

1. However, this section is of no assistance to the defendant. First, the defendant's submissions contain the implicit assertion that the High Court overlooked, or wrongly disregarded, s 134AB(23)(b). There is no basis for this contention. Secondly, if one was to accept the defendant's submissions, then an issue estoppel would exist in a trial conducted by a judge alone but not in a jury trial - s 134AB(23)(b) only applying to jury trials. There is no basis for such a distinction. It cannot have been the intention of the Parliament to have injured workers treated so differently - dependent upon whether their cases were heard by juries on the one hand or judges sitting alone on the other hand.
2. Section 134AB(23) sets out four matters that juries must not be informed about. They are matters that are irrelevant to the determinations of juries. So far as the prohibition on telling juries of a serious injury finding is concerned, such a matter is irrelevant if the proceeding is conducted on the basis that there is an estoppel in favour of the plaintiff as identified by the High Court in Dwyer. Thus, the work of s 134AB(23) is to ensure that irrelevant matters, and matters about which there is no issue, are not put before the jury.
3. During the course of argument, the defendant referred to the Second Reading speech in relation to s 134AB(23). In the written submissions of the defendant, the defendant said:

'10 In the second reading speech on 13 April 2000, the Minister said:

"The Bill further provides that at the trial of an action before a jury, the fact that a worker has been granted a serious injury certificate or deemed to have a serious injury and the existence of the monetary threshold and caps shall not be made known to the jury. The government considers such a provision to be consistent with the serious injury threshold not being an influence in a common law trial".

11 The role of the tribunal of fact in a damages trial would be impermissibly constrained and made unworkable if the only basis upon which the jury was permitted to assess damages was upon the assumption that the injury was Humphries serious.'

1. The defendant submitted that I should not follow Dwyer. While it may be accepted that paragraph [11] of the High Court's judgment is obiter, it is powerful obiter, directly on point, from five judges and delivered only 13 months ago. In the circumstances, and for the reasons already given, I propose to follow it. As the High Court said, subsection 19(c) reflects the importance 'by reason of its finality' of the determination in any leave application of the issue of 'serious injury'. Further, to the extent that anything said in earlier Court of Appeal decisions on a different section (section 135A) might be said to be in conflict with Dwyer, I prefer the specific consideration of s 134AB(19)(c) in Dwyer.
2. The defendant is estopped from disputing or questioning the finding that, at least as at July 2005 the plaintiff had a permanent severe mental or permanent severe behavioural disturbance or disorder.
3. The real issue in this case is the extent of the estoppel. As the High Court said in Dwyer, the only estoppel in favour of the plaintiff is that the plaintiff's injury was a 'serious injury'. In the terms of s 134AB and Judge Dove's decision, 'serious injury' in this case means 'permanent severe mental or permanent severe behavioural disturbance or disorder'. However, that is not the end of the matter. Further content is provided to these words by s 134AB(38) and the decisions of the Court of Appeal which have considered the four sub-paragraphs of the definition of 'serious injury' in s 134AB(37). Specifically, the word 'permanent' in the definition of 'serious injury' in s 134AB(37) conveys the probability that the impairment or other condition will last and not mend or repair - or at least not to any significant extent. Further, the word 'permanent' is used in the sense of 'likely to last for the foreseeable future.'
4. Further elucidation as to the extent of the estoppel can be found in paragraphs (b) and (d) of s 134AB(38). Those paragraphs provide:

'For the purposes of the assessment of serious injury in accordance with subsections (16) and (19) -

...

(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to -

(i) pain and suffering; or

(ii) loss of earning capacity - when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;

...

(d) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;

...'

1. Giving application to paragraphs (b) and (d) of s 134AB(38) and applying the reasoning in AMP Workers Compensation Services Limited v Chalkley, the estoppel would be that as at July 2005 the plaintiff suffered from a permanent severe mental or permanent severe behavioural disturbance or disorder. It was severe by reference to the consequences to the plaintiff of the mental or behavioural disturbance or disorder with respect to pain and suffering and loss of earning capacity - when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders. Further, it was severe because the pain and suffering consequences and loss of earning capacity consequences when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders were more than serious - to the extent of being severe. This was permanent as at July 2005 - at least in the sense of being 'likely to last for the foreseeable future'.
2. While a first reading of paragraphs (e) to (g) of s 134AB(38) might suggest that they have some role in further defining the extent of the estoppel, these paragraphs concern the assessment of loss of earning capacity by reference to terms defined in the Accident Compensation Act and terms which have a specific relevance in workers compensation matters - rather than the assessment of common law damages (see for example the reference to 'suitable employment' and its definition in s 5 of the Act). In my view paragraphs (e) to (g) do not give content to the estoppel over and above that to which I have already referred. It follows, for the reasons already given, that the estoppel on the issue of 'serious injury' is as I have previously explained it. That is, the defendant is estopped from denying that as at July 2005 the plaintiff suffered from a permanent severe mental or permanent severe behavioural disturbance or disorder. It was severe by reference to the consequences to the plaintiff of the mental or behavioural disturbance or disorder with respect to pain and suffering and loss of earning capacity - when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders. Further, it was severe because the pain and suffering consequences and loss of earning capacity consequences when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders were more than serious - to the extent of being severe. This was permanent as at July 2005 - at least in the sense of being likely to last for the foreseeable future.
3. During the course of argument, the defendant referred me to Petkovski v Galletti, and in particular the statement of Brooking J (in relation to s 93 of the Transport Accident Act 1986) that 'the question of "serious injury" as defined will not arise on the trial of the action'. While that may be accepted, it does not provide an answer to the fact that the defendant is estopped from contending the contrary of the serious injury point which was in issue before Judge Dove and 'solemnly found against it.'
4. Finally, it was said by the defendant that if I ruled there was an estoppel 'it would be impossible for the tribunal of fact to deal with evidence that, for example, showed beyond doubt that the plaintiff now presented, or had always presented, as very mildly affected by the injury'. However, that is merely the lament of any party held to be precluded by an issue estoppel from relitigating a matter. Further, AMP Workers Compensation Services Limited v Chalkley (to which I have already referred) shows that evidence may be given as to how the plaintiff 'now presents' provided that in doing so no attempt is made to relitigate the matter already determined against the defendant. It is the concept of 'had always presented' in the defendant's submissions that is the one that the defendant cannot now seek to relitigate as if no court has ever considered the matter.

1. The learned trial judge erred in construing and applying Section 134AB(19)(c) of the Act and holding that findings made by His Honour Judge Dove on the serious injury application gave rise to issue estoppels to the effect that the Appellant was estopped from denying that -

(a) as at July 2005, the Respondent suffered from a permanent severe mental or permanent severe behavioural disturbance or disorder (the 'Respondent's disorder');

(b) the Respondent's disorder was severe by reference to the consequences to the Respondent of the mental or behavioural disturbance or disorder with respect to pain and suffering and loss of earning capacity - when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders; and

(c) the Respondent's disorder was severe because the pain and suffering consequences and loss of earning capacity consequences when judged by comparison of other cases in the range of possible mental or behavioural disturbances or disorders were more than serious - to the extent of being severe; and

(d) the Respondent's disorder was permanent as at July 2005 in the sense of being likely to last for the foreseeable future -

(Estoppel Ruling, paras [16] & [18]; Final Judgment, para [3].

1. The learned trial judge erred in failing to hold that the 'the serious injury point', which was in issue in the serious injury application before His Honour Judge Dove, did not arise at the trial of the damages proceeding (Estoppel ruling, para [19].
2. The learned trial judge erred in construing and applying Section 134AB(19)(c) of the Act such that the estoppel so found would and did prevent the Appellant from -

(a) adducing evidence before the jury relating to the extent to which the Respondent was, up to and at the time of the determination of the serious injury application, affected by the injury; and

(b) contending that the plaintiff had always presented as very mildly affected by the injury -

(Estoppel Ruling, para [20]).

16 I should describe the principal submissions advanced by the parties in this Court.[6]

17 Senior counsel for Brumar submitted, first, that the purpose of s 134AB(19)(c) (conveniently, 'sub-s (19)(c)') is to prevent the serious injury gateway which is opened by a favourable determination under s 134AB(16)(b) (conveniently, 'sub-s (16)(b)') being revisited at trial. According to this submission, the effect of s 134AB(2) - absent sub-s (19)(c) - would be that damages would not be recoverable in a proceeding, the commencement of which is authorised by a grant of leave under sub-s (16)(b), without it being re-established at the trial of the proceeding that the plaintiff suffers serious injury. The bracketed words in sub-s 19(c), counsel submitted, prevent that issue being litigated twice over.[7]

18 Counsel submitted, second, that the issue of 'serious injury' decided on the hearing of the application did not arise at the trial of the common law proceeding. No such issue was joined on the pleadings. It did not arise on the assessment of damages. Further, 'serious injury' fell for determination at the time of the hearing of the application: vide s 134AB(38)(j). But damages were to be assessed as at date of trial.

19 There is a strict requirement, counsel submitted, that the issue the subject of an estoppel be the same. He cited Kuligowski v Metrobus,[8] ('Metrobus') in which the High Court adopted and explained a passage in the judgment of Barwick CJ in Ramsay v Pigram.[9] He contended that findings fundamental to an ultimate finding are not the subject of an issue estoppel, which is concerned with issues.[10]

20 In support of his contention that the issues were not the same, counsel relied upon passages in the judgments of Latham CJ and Evatt J in O'Donel v Commissioner for Road Transport and Tramways (NSW).[11] He also relied upon passages in DA Christie Pty Ltd v Baker,[12] Egri & Anor v DRG Australia Ltd,[13] Petkovski v Galletti[14] and Brambles Ltd v Wail.[15]

21 Counsel's third proposition was that the learned trial judge had misconstrued sub-s (19)(c) by failing to read the negative direction that no issue estoppel arose 'other than a finding that the injury is a serious injury'. His Honour, it was submitted, had 'clothed' the permissible issue estoppel with 'other findings'. (Pressed, counsel submitted that the exception would not foreclose agitation at trial of the question whether the plaintiff had been a worker at the relevant time, and - as I understood his submission - the question whether the plaintiff had suffered compensable injury).

22 Counsel submitted, fourth, that the learned judge had failed to construe sub-s (19)(c) in its statutory context. In particular, his Honour had failed to take sub -ss (22) and (23) properly into account. The former sets thresholds and caps in respect of damages, and the latter, by paragraph (b), precludes a jury being informed 'that any injury in respect of which the proceeding has been brought has been deemed, found, or required to be found, to be a serious injury'. If there could be an issue estoppel in respect of 'serious injury', counsel submitted, in some instances the estoppel might be pleaded, and the jury would have to be directed in a way that would cut across the prohibition stated in sub-s (23).

23 The learned judge, counsel submitted, had also failed to consider sub-s (37) when construing sub-s (19)(c). By definition, 'serious injury' can be constituted by any one of four different situations, and the judge hearing the application need not determine which alternative is satisfied. So, it was contended, the subject-matter of the asserted estoppel could be or would be opaque.

24 Again, counsel argued, his Honour had failed to properly appreciate the significance of the elaborate regime set up by sub-s (38), particularly paragraphs (e), (f) and (g), which necessitate findings removed from any issue arising on assessment of damages at common law. His Honour had put those paragraphs to one side; but his reasoning, it was submitted, had been faulty.

25 Counsel referred, fifth, to the Second Reading Speech.[16] The passage to which he referred us was directed to what became sub-s (23)(b). In answer to questions from the Court, counsel stated that he had not found any discrete reference to what is now sub-s (19)(c). That absence of reference - specifically with respect to an explanation for the bracketed words in the sub-section - was explained in counsel's reply. When the Bill which inserted sub-s (19)(c) came into the parliament, the bracketed words in sub-s (19)(c) were not present. All that is known is that they were introduced as one of a raft of amendments, possibly as a result of 'concern being raised with the (parliamentary) opposition'. Counsel referred us to remarks made in debate by an opposition member, and sought to call them in aid of his construction of sub-s (19)(c).

26 It is convenient to immediately express my opinion that the remarks, not made by the responsible minister, were in any event equivocal. I will say nothing more about this submission.

27 Counsel's sixth submission was that if there was an estoppel as found by the judge below, it would create the anomaly that persons with very serious impairment - vide s 134AB(15) - would not have the advantage of an estoppel available to persons whose impairments were the less.

28 Counsel's seventh submission was that the judge below had misunderstood [11] in the judgment of the High Court in Dwyer v Calco Timbers Pty Ltd.[17] That case was not concerned with the nature of the issue estoppel. But in any event, what the High Court had said at [11] identified the 'issue' as the issue of 'serious injury'. This fitted in with the Court's reference at [7] to s 134AB(2). In effect, counsel submitted, the Court had said that the purpose of the estoppel was to meet any attempt to revisit the serious injury issue at trial in the context of sub-s (2) - and this was precisely the argument now advanced for Brumar.

29 Senior counsel for Ms Norris submitted, first, that the proper starting point is that there is an issue estoppel at the trial of a substantive proceeding which is authorised by a sub-s (16)(b) grant of leave. That is because subs-s (19)(c) says there is, and because the High Court said so in Dwyer. The High Court's recognition of the existence of an issue estoppel at trial disposed of any uncertainty created by the opening words of sub-s (19). Further, as a matter of simple timing, the issue estoppel could not be usable in the sub-s (16)(b) application - for it depends upon the issue having been finally decided, and that happens when the application is resolved.[18]

30 Counsel secondly submitted that the appellant's argument that there was no identity of issues was based on fallacy. It was no answer to there being an identity of issues that it is irrelevant to proof of damages that a worker has been found to suffer 'serious injury' as statutorily defined. The findings of fact necessarily made in order to establish the ingredients of serious injury - not the evidentiary findings - constituted the disposition of an issue, or issues, which arise at trial - though not a disposition of all questions which arise at trial. Counsel relied upon the statement of Barwick CJ in Ramsay, cited in Metrobus, to which I have earlier referred. He relied also upon a passage in the judgment of Dixon J in Blair v Curran.[19]

31 Counsel then referred to the reasons for judgment of the learned judge in the County Court, Judge Dove, who heard the sub-s (16)(b) application. He submitted that the findings of fact critical to establishing 'serious injury' as well his Honour's conclusion that the findings had the effect that the statutory requirements were satisfied, were found in the following passages:

The experience the plaintiff suffered when she was the victim of the hold-up in December 1999 has left her with profound psychological injuries, which to my mind are permanent in nature. I am satisfied that she has a deep and persistent post-traumatic stress disorder. She suffers from anxiety, depression, insecurity, and has panic attacks. Her symptoms are deeply ingrained and have stabilised. She is dependant upon considerable medication. I believe it is unlikely that she will show any improvement in her condition, having regard to the period of time in which it has been entrenched in her. The severity of her condition is impressively stated in the reports of Dr Sutcliffe, Dr Kruse, Dr Kaplan, Dr Cole, and Ms Mossop. Indeed, confirmation that her condition is both severe and permanent is to be obtained in reports obtained by the defendant from Drs. Cole, Entwisle and Mendelson. I do not accept the conclusions stated to the contrary by Dr Shan and Dr Kornan, based upon their limited knowledge of the plaintiff, in Dr Kornan's case based upon a single consultation, as they conflict with the views expressed by the overwhelming majority of experienced psychiatrists.

The effect of the mental or behavioural disturbance suffered by this plaintiff is profound and permanent. I am satisfied that the pain and suffering consequence to her, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being very considerable and more than serious to the extent of being severe. The nature of the incident causing injury is likely to lead to severe psychological disturbance and I am satisfied that it has done so in this case. Consequently, I conclude that the consequences of the injury and impairment suffered by the plaintiff are sufficient to satisfy the criteria relating to leave to issue proceedings for pain and suffering damages.

(2) Loss of Earning Capacity

As I have endeavoured to state earlier, the tests required to be satisfied by the plaintiff in relation to loss of earning capacity are substantial and demanding and, in the result, it is not easy for a plaintiff to satisfy the burden which is imposed upon him or her.

However, in the present case, I am satisfied that the plaintiff has discharged the considerable burdens placed upon her.

Bearing in mind the onus imposed upon the plaintiff by, and the requirements of, s.134AB (19)(a) and (b), I note the following -

1. The plaintiff is now 56 years old.

2. Over 6 years have passed since the incident causing injury.

1. By reason of the incident, the plaintiff has suffered a profound and permanent psychological injury.
2. Dr Sutcliffe has concluded that the plaintiff was totally and permanently unfit for employment. Dr Kaplan has stated that the plaintiff does not have a capacity for suitable employment and that it is unlikely that she would be capable of retraining. Dr Kruse expresses views which accord with those set out above. Ms Mossop, whilst qualifying her opinions by stating that she lacks legal qualification, expressed the opinion that the plaintiff's prospects 'with respect to retraining or return to work are significantly impaired ...'. In September, 2001, Dr Cole stated that, on the face of it, the plaintiff's nervous disorder promised to be permanent. Dr Cole said that, accepting her account, she would be unemployable in any capacity. The defendant has not given Dr Cole the opportunity to confirm or revise those opinions.
3. By reason of the above, I determine that the plaintiff has satisfied me that she is unable to be retrained or rehabilitated or to undertake suitable employment. I am satisfied that such inability is complete and permanent.
4. I am satisfied that the plaintiff has been totally incapacitated for work since the incident in December, 1999, and that such incapacity is permanent.

In relation to s.134AB (38)(e), (f) and (g), I am satisfied that the plaintiff had a pre-injury wage, and earning capacity, of $570.00 per week or $29,640.00 per annum. Her earning capacity since the incident has been $0, and will remain so permanently. Consequently, she has a past and permanent loss of earning capacity in excess of 40 per centum.

I am satisfied that the plaintiff's mental or behavioural disturbance is both severe and, when judged by comparison with other cases in the range of possible impairments, is fairly described as being very considerable.

In the light of my conclusions, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity also.

32 Upon the question whether findings as to the matters dealt with by s 134AB (38)(e)(f)(g) should be regarded as findings necessary to establish the ingredients of serious injury, I took counsel to submit that the learned judge had correctly analysed the position at [18] in his ruling.

33 Third, counsel submitted that sub-s (19)(c) should not be read so as to confine the bracketed words only to the finding of the ultimate fact - that the compensable injury constituted, in its consequences, serious injury. So to read the sub-section would impose an unjustified qualification on the common law concept of issue estoppel. Counsel resisted the suggestion that, because the bracketed words create an exception, so to read sub-s (19)(c) would leave little scope for the operation of broad prohibition contained in the sub-section. He identified a number of findings which, he said, would fall within the prohibition: (1) a finding that the applicant was employed under a contract of service at the relevant time, or was brought under the protection of the Act by one of the extension provisions; (2) a finding as to the circumstances of the compensable incident; (3) a finding that the applicant had sustained compensable injury;[20] (4) a finding as to 'the cause of a serious injury' -citing Sejranovic v Berkeley Challenge Pty Ltd;[21] and (5) a finding as to a 'timing issue'.[22]

34 Counsel submitted, fourth, that the legislation sets up a regime both necessary and apt for issue estoppels to arise:

(1) On a sub-s (16)(b) application, the applicant must prove serious injury on the balance of probabilities.[23]

(2) The decision - on the hearing of the application, or else on appeal - is final. By operation of sub-s (21), an applicant cannot re-litigate a failed application.

(3) The decision, by operation of s 134AC, 'shall not be taken to be a judgment or order in an interlocutory application for the purposes of appeal'.

(4) The judge who hears the application is obliged by s 134AC to give 'detailed reasons which are as extensive and complete as the court would give on the trial of an action'.

35 Counsel contended that this regime explained why, where issue estoppel is permitted, the enabling provision should not be narrowly read. To read it otherwise would encourage, not prevent, issues being re-litigated.

36 Counsel, fifth, disputed the appellant's contention that the purpose of sub-s (19)(c) is to prevent re-litigation of 'serious injury' in the substantive proceeding, such re-litigation being otherwise necessary. He submitted that Bowles did not stand for such a proposition. He submitted that no other authority supported it.

37 Counsel's sixth submission concerned the ambit of the asserted issue estoppel. He conceded, rightly in my view, the assessment of 'serious injury' being required to be made at the time when the sub-s (16)(b) application is heard,[24] that relevant findings would not preclude a defendant from adducing evidence at trial of changed circumstances subsequent to that assessment. Upon the question whether a defendant would be precluded from adducing evidence of circumstances in the period between the date of compensable injury and the date of assessment which were inconsistent with findings on which the determination of 'serious injury' rested, counsel submitted that it would depend on the findings of fact in the individual case. He referred to Sejranovic[25] as a case in which determination of serious injury at the date of assessment rested on findings about the appellant's presentation in the years between the time when injury was sustained and the time of assessment.[26]

38 Counsel's seventh submission concerned passages in judgments relied upon by the appellant to show that a finding of serious injury is of no operative consequence at trial. His submission was that the passages referred to other, materially different, legislation.

39 Counsel, eighth, submitted that the appellant's argument reliant on difficulties which would or could arise at trial because of conflict between the asserted estoppel and the command of sub-s (23)(b) did not provide reason why it should be concluded that the estoppel did not exist. He relied upon this passage in Metrobus:

... the difficulties that the evidence which is accepted or rejected in reaching a decision in one set of proceedings may create in a second set are immaterial in assessing whether the doctrine of issue estoppel applies.[27]

40 Senior counsel for Ms Brown, so far as it could be relevant to the special case stated concerning his client, generally adopted the arguments advanced on behalf of Ms Norris. He made the following submissions by way of qualification and elaboration -

(1) The issue estoppel was not created by sub-s (19)(c). It arose from the finality of the judicial determination on the sub-s (16)(b) application. Sub-section (19)(c) recognised that a number of issue estoppels would ordinarily arise. It whittled down their operation to the circumstances within the bracketed words.

(2) A finding of compensable injury was a finding falling within the bracketed words.

(3) What was within the brackets described the finding, not the scope of the estoppel. The restriction imposed by the generality of sub-s (19)(c) did not restrict the scope of the estoppel flowing from the finding.

(4) It was entirely improbable that the exception in sub-s (19)(c) was directed to satisfaction of sub-s (2). If that had been Parliament's limited intent, it could readily have been stated.

(5) The estoppel would prevent contrary evidence being led except if the parties seeking to limit it could demonstrate some fact showing preceding or subsequent significant change.[28]

41 For the reasons which follow, I consider that the ruling of the learned trial judge was correct in its outcome. For that reason, I would reject grounds 1-3.

42 It was not in dispute in the common law trial that Ms Norris was a worker who had sustained injury in compensable circumstances. Liability was conceded. The only issue for determination was the appropriate quantum of damages for the psychiatric injury which Ms Norris alleged she had sustained. Brumar wished to contend that any psychiatric injury had been mild in effect for many years before trial. In that context, this chronology should be kept in mind: the compensable incident occurred on 11 December 1999, the s 134AB(16)(b) application was heard in July 2005, and the common law proceeding came to trial in late May 2009.

43 It was not in debate before this Court that the decision of the County Court judge on the s 134AB(16)(b) application was a final judicial decision between the same parties, and so was capable of giving rise to an issue estoppel. The decision of the High Court in Dwyer[29] states, in considered obiter dicta, that sub-s (19)(c) does give rise to an issue estoppel in the common law proceeding which is brought after a decision favourable to the worker in a sub-s (16)(b) application. No question arises, then, about the oddity in sub-s (19) which is created by it commencing with the words 'for the purposes of sub-s (16)(b)'. It could make no sense to constitute a finding of serious injury an issue estoppel within the s 134AB(16)(b) application itself.

44 In the event, the only question is what was encompassed by the estoppel.

45 In a particular case, interesting and complex issues might arise in answering that question. Although it is at least clear that the estoppel will not operate in respect of certain issues which will or may arise in the common law proceeding - for example, breach, contributory negligence, quantum of damages, and perhaps causation[30] - other matters are more debatable. So, for instance, paragraph (c) refers to a finding that 'the injury is a serious injury'. The distinction between 'injury' and 'serious injury' is readily explicable. A finding of serious injury under s 134AB(16)(b) is predicated upon the worker having suffered compensable injury. There could be no 'injury' which was serious in its consequences for the worker if there was no compensable injury at all.[31] Again, a finding of serious injury can only be made once it is determined that the applicant was a worker - in the ordinary or extended sense - at the relevant time.[32] For if the applicant was not a worker, any injury would be irrelevant. So, it might be argued, a sub-s (19)(c) estoppel could extend to a finding that the applicant was a worker who had suffered compensable injury which by reason of findings made on the sub-s (16)(b) application was a serious injury. But whatever might be the answers with respect to the matters just mentioned, because of the way in which the issues were confined at the trial of the common law proceeding in this case, the questions which might arise in some other case did not arise here.

46 I turn, then, to a real battleground. A finding of serious injury requires conclusions, in a case of compensable psychiatric injury, that the worker suffers -

Permanent severe mental or permanent severe behavioural disturbance or disorder.[33]

(b) the terms 'serious' and severe' are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to -

(i) pain and suffering; or

(ii) loss of earning capacity -

when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;

(d) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;

(j) the assessment of serious injury shall be made at the time that the application is heard by the court;

50 The date of determination is relevant to considerations of permanency and extent of loss of earning capacity.[34]

51 The learned trial judge held, in substance, that Brumar was estopped from denying that as at July 2005 the respondent suffered from a permanent severe mental or permanent severe behavioural disturbance or disorder, the severity being expressed by reference to the consequences to the respondent with respect to pain and suffering and loss of earning capacity when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders. Further, the disturbance or disorder was permanent as at July 2005, at least in the sense of being 'likely to last for the foreseeable future'.

52 Any estoppel, of course, arose by reason of the decision in the sub-s(16)(b) application. What sub-s (19)(c) did was to provide that the decision should not give rise to an issue estoppel other than the estoppel described within the bracketed words.

53 Confronted by the language of sub-s (19)(c), the main elements of the appellant's contentions were that the reference in sub-s (19)(c) to 'a finding that the injury is a serious injury' thereby confined the estoppel to a finding in that precise language. Counsel submitted that such a finding was irrelevant to a common law proceeding except for an obligation cast upon a worker, by s 134AB(2), to prove that the injury was a serious injury in the common law proceeding, failing which damages would be irrecoverable. So, he argued, all that sub-s (19)(c) did was to obviate a requirement that the worker re-establish, in order to recover damages in the common law proceeding, that he or she had suffered serious injury.

54 It was in aid of that argument that the counsel for the appellant - (1) relied upon authorities which were said to show that a serious injury application, if successful, does no more than open a gateway to common law proceedings; (2) argued that any expansion of the issue estoppel beyond the finding of 'serious injury' - in those words - in a sub-s (16)(b) application would be to impermissibly resort to evidentiary findings; and (3), argued in any event that such findings would not mirror any issue which would fall for determination in the common law proceeding.

55 With respect to the last-mentioned matter, counsel's argument was that the pertinent issue, in the common law proceeding was the quantification of damages past, present and future, assessed at time of trial; whereas the serious injury finding spoke only of the situation at the time when the sub-s (16)(b) application was made. Thus, it was said, the serious injury finding was simply a fragment of 'the issue' which fell for determination in the common law proceeding.

56 Although one might begin with a description of what is encompassed by the concept of 'issue estoppel', and then proceed to its application in the circumstances of the case, it is convenient to begin with the rationale for sub-s (19)(c) which was advanced by appellant's counsel - that is, that were it not for that sub-section the plaintiff would have been put to prove serious injury twice over.

57 That submission is not supported, in my opinion, either by the language of s 134AB, or by the authorities to which counsel referred.

58 Section 134AB(1) precludes recovery of damages except, inter alia, 'as permitted by and in accordance with this section'.[35] The key to 'recovery' is sub -s (2). Recovery is permitted 'if the injury is a serious injury'. But there cannot be recovery except if there is a vehicle for recovery. The vehicle is a proceeding by which damages are claimed. But a person may not bring a proceeding unless he or she is deemed to have serious injury by operation of sub-s (15) - I will have more to say about sub-s (15) in respect of the Brown matter - or has a certificate of serious injury given under sub-s (16)(a), or has the leave of the Court under sub-s (16)(b) on a finding of serious injury - see sub-s (19)(a).

59 The import of the appellant's argument, as I have said, was that, but for sub -s (19)(c), 'serious injury' would have to be determined twice over; but that in the case of a determination made under sub-ss (16)(b) this obligation was avoided. He advanced no reason why there should be differentiation between a sub-s (16)(b) case and a case of deemed impairment under sub-s (15), or a case in which a certificate was given under sub-s (16)(a). There would be no logic in such a differentiation. The cases in which the requirement of 'serious injury' had been more easily satisfied, and only those cases, would face an additional burden at trial.

60 Next consider how, on the appellant's analysis, sub-s (2) would work. Whilst logic does not always accompany the provisions of the Accident Compensation Act, and whilst difficulty in giving easy application to a statutory regime will not deny that the regime exists, the following questions - and they are not exhaustive - suggest to me that the rationale for sub-s (19)(c) advanced for the appellant is to be doubted in circumstances where a different construction is possible. If the trial was by jury, is it to be supposed that the jury would decide the question - one which would likely involve a judge having to give directions with respect to multiple parts of s 134AB, a section concerning the construction of which trial judges and appellate courts have struggled? If so, would that sit comfortably with the statutory direction set out in sub-s (23)(b)(c) and (d) of s 134AB? Alternatively, should the sub-s (2) issue be resolved, even in a jury trial, by the judge? What would be the warrant for a judge removing an issue of fact joined at trial from determination by the constitutional trier of the facts?

61 I should next note that the importance of a determination under sub-s (16)(b) - in a situation which does not have the benefit of the statutory consequences, absent any hearing, which arise by operation of sub-ss (15) or (16)(a) - is emphasised by sub-ss (19)(a), (21), (21A), and by ss 134AC and 134AE. The first-mentioned provision emphasises the burden resting upon the worker on the hearing of a sub-s (16)(b) application. Sub-sections (21) and (21A) emphasise the finality of such a determination. Section 134AC specifically meets any argument which would otherwise be available that the decision on a s 134AB(16)(b) application should be accounted a judgment or order in an interlocutory application. Section 134AE, requiring the Court to give 'detailed reasons which are as extensive and complete as the Court would give on the trial of an action' both emphasises the importance of the sub-s (16)(b) determination, and at the same time facilitates any appeal - appeal being dealt with, at the pertinent time, by s 134AD.

62 Another small point: if the purpose of the bracketed words in sub-s (19)(c) had been what appellant's counsel proposed, parliament could readily have said so.

63 It was argued that Bowles v Coles Myer Ltd[36] assists, by analogy, the appellant's argument that the bracketed words in s 134AB(19)(c) are concerned only to prevent re-litigation, in a common law proceeding, of a finding of serious injury earlier made. I do not accept that argument. Bowles, and later Hanrahan v Davis,[37] concerned s 135A of the Act as it was substituted in 1992, and prior to the insertion of sub-ss (2A) and (3A). The question which arose was whether, as the section then stood, it was open to a worker to commence a common law proceeding if no determination of impairment had been made - for which reason it was impossible for the worker either to seek and obtain a certificate, or to make application for leave to bring proceedings under sub-s (4). The answer which I gave in Bowles, with which Phillips J (Winneke P and Charles JA concurring) agreed in Hanrahan, is that it was open to a worker to so proceed.

64 In Bowles, I observed that serious injury must be established, by one of the available methods, at some point. I did not say that a worker would, or might, need to establish serious injury twice over. Indeed, that is the converse of what I said. So, referring to a situation in which there was a determination of impairment of more than 30 per cent under s 135A (3), I observed -

Subs(3) is in terms simply a provision of evidentiary character. If there is a determination of degree of impairment of 30% or more, the injury is deemed to be a 'serious injury'. On its face subs (3) is not limited in time. So, a worker could have the benefit, for evidentiary purposes, of a favourable determination made before or after the bringing of proceedings. If a determination was made prior thereto there would be one less matter (ie serious injury) to plead and prove. If a determination was made subsequent thereto, but before trial, the number of issues in dispute would be reduced (on an assumption that the defence had not admitted serious injury).

65 In Hanrahan, having concluded that there had been a determination of impairment exceeding 30 per cent, and having stated that the consequence was that the plaintiff's injury was deemed to be serious injury, Phillips JA said, in a passage which, although it did not address the estoppel issue (for it did not arise), does not assist Brumar's argument, that:

in those circumstances, if and when the plaintiff seeks to 'recover damages' in respect of the alleged injury, he will have no difficulty in establishing 'serious injury' for the purposes of paragraph (a) of s 135A(2). The injury, which arose after 1 December 1992, must be taken to be 'a serious injury' because of s 135A(3)...' .[38]

66 I should mention Alcoa of Australia Ltd v McKenna,[39] in respect of which my reasons, dissenting on the point, were relied upon by the appellant. It was another case involving s 135A. The question was what a worker must prove in an application made under sub-s (4)(b). Section 135A(2) imposes a particular timing requirement in order that damages be recoverable. It is expressed in the alternative, and in one respect is quite unlike the timing requirement set out in s 134AB(2).

67 Chernov JA with whom Buchanan JA agreed, concluded that it was sufficient for a worker to establish that he or she had suffered serious injury. The worker's application should not be refused by reference to the timing issue unless the employer had satisfied the judge that the worker's prospect of success upon that issue at trial was absolutely hopeless or bound to fail.[40] In so deciding, Chernov JA referred to what he described, by reference to the judgment of Brooking J in Petkovski v Galletti,[41] as 'the limited nature' of the application.

68 What his Honour said does not lead to a conclusion that a s 134AB(16)(b) decision is not finally determinative of the serious injury question. Sections 135A and 134AB differ. There is no replica of sub-ss (21) and (21A) of the latter in the former. Nor is there a replica of either of s 134AC or 134AE. Further, the exact scope of the decision in McKenna is somewhat problematic. It has been distinguished on three occasions. They include Wilson v The State of Victoria[42] and Paget v JLT Workers Compensation Services Pty Ltd.[43]

69 I referred a moment ago to Petkovski v Galletti. That was another case upon which the appellant relied. It involved an appeal from a grant of leave to bring a proceeding under s 93 of the Transport Accident Act 1986, the injury being the aggravation of a pre-existing condition.

70 Brooking J bemoaned the fact that, because of what had been decided in Humphries v Poljak,[44] the law was that an applicant must establish serious injury, when seeking leave to commence proceedings, on the balance of probabilities. His Honour observed that -

while of course the question of 'serious injury' as defined will not arise on the trial of the action, the plaintiff will at trial be asserting that he has been seriously injured in the ordinary sense of those words and from a practical point of view there is little difference between the two questions. This makes it unlikely that it was intended that two such similar questions should be litigated twice. If I were not constrained by authority, I should do my best to conclude that when s 93(6) requires the Court to be satisfied that the injury is a serious injury it is contemplating not a finding of fact in those terms but rather a determination that the applicant has made out a prima facie case of serious injury, or perhaps a good arguable case of 'serious injury'.

71 His Honour was not there dealing with any question of issue estoppel. Even if s 93 of the Transport Accident Act was similar in all respects to s 134AB of the Accident Compensation Act - which it is not - the passage relied upon would not assist the appellant. His Honour did not suggest that, if leave was granted under s 93(4)(d) and (6), the plaintiff would have to re-prove serious injury for the purposes of sub-s (2) in the substantive proceeding.

72 Finally, in the present context, I should refer to Brambles Ltd v Wail.[45] Amongst many issues raised on appeal from a decision in a third party proceeding, the appellant sought to make something of the fact that a judge had granted leave to the plaintiff to bring a common law proceeding 'based on the cause of action said to have arisen on 9 August 1993,' whereas, at trial, the plaintiff sought to allege that the injury had in fact occurred on 16 July 1993. According to the appellant, the trial judge had erred by failing to strike out or dismiss the claim on the basis that there was a disconformity between the date of injury referred to in the grant of leave and the date of injury relied upon by the worker in the common law proceeding. The Court observed that there was 'no merit whatever in this ground of appeal'. It said that the trial judge had been correct to have recourse to the documentation which was before the judge on the application, and that when regard was had to that material it was evident that the date recorded by the latter had been influenced by the fact that that was the date of the first certificate given by the treating doctor. The trial judge had been correct to regard it as immaterial to the order granting leave.

73 The ground was so inconsequential that, when the decision was reported in the Victorian Reports, it was altogether omitted - though with an appropriate notation. Nonetheless, counsel for the appellant relied upon this passage from the omitted section:

By its very nature, a preliminary finding by a judge that the applicant for leave has sustained a 'serious injury' arising out of his employment does not finally determine the rights of the parties. It is merely a preliminary step along the way to establishing those rights. It does not prevent the defendant, at the trial, from challenging the seriousness of the injury, or from seeking to show that it did not arise out of the plaintiff's employment, or that such employment did not significantly contribute to it.

74 That was said in the context of s 135A of the Act, which in a number of respects, as I have said, does not replicate s 134AB. All other differences apart, there is no replica of sub-s (19)(c). The passage did not deal with the question of issue estoppel. Nor did it say that, at trial of a common law proceeding, the worker must re-litigate and re-establish 'serious injury'. The most that can be said is that the passage stands for the proposition, in the context of s 135A, that it is open to a defendant at trial to challenge the 'seriousness' of the injury, and to raise a causation issue.

75 Assuming that a worker is not put to prove for a second time, in the common law proceeding which follows a successful s 134AB(16)(b) application, that he or she has sustained 'serious injury', a 'finding that the injury is a serious injury' could not create an issue estoppel of any relevance if it was confined, literally, to the words 'serious injury'. A finding of 'serious injury' would be irrelevant to any issue which must be established by the worker in the later proceeding. The bracketed words would have no work to do at all. But in my opinion the structure of the section is opposed to so confining the estoppel. The bracketed words, in short, describe the finding made necessary by sub-s (19)(c); but they do not describe the scope of the estoppel.

76 The proceeding which is authorised by sub-s (15) requires that there be an assessment of degree of impairment 'as a result of the injury' which is 30 per cent or more. Then 'the injury is deemed to be a serious injury within the meaning of' the section. So also, under sub-s (16)(a) the WorkCover Authority or self-insurer cannot issue a certificate consenting to the bringing of a proceeding unless it is 'satisfied that the injury is a serious injury'. There is a symmetry to the circumstances in which a leave application under sub-s (16)(b) will succeed. The effect of sub-s (19)(a) is that a court must not give leave 'unless it is satisfied on the balance of probabilities that the injury is a serious injury'.

77 It is critical to any common law action brought by a worker against his or her employer that the plaintiff identify an incident, or a course of events in the employment, which it is alleged have been a cause of injury. But the Act does not distinguish between incident and injury. Not for a long time has there been a requirement of proof of 'injury by accident'. The distinction between incident and injury is conflated by the language, inter alia, of ss 134AB(1) and (2) where reference is made to 'injury arising out of or in the course of or due to the nature of employment on or after 20 October 1999'. That said, the injury which is in its consequences a serious injury must be sufficiently defined when the commencement of proceedings is authorised, for else how could it be known what proceeding was authorised?

78 It follows, in my opinion, that reference in sub-s (19)(c) to 'a finding that the injury is a serious injury' is meaningless unless it is understood to mean the compensable injury upon which the worker relies, and the consequences which render it a serious injury. 'The injury' will be the injury relied upon by the worker in a sub-s (16)(b) application, or otherwise the injury 'for which liability [has been] accepted or established' under s 104B(9)(a) and which has been the subject of assessment relevant for s 134AB(15), or consideration by the WorkCover Authority or self-insurer for the purposes of sub-s (16)(a). That injury will be serious in its consequences because it has satisfied the requirements of the statute. There is a difference between the necessary conclusion (except in the case of sub-s (15)) that the injury is, by reason of its consequences, a serious injury, and the evidentiary findings which underpin the relevant conclusion.

79 In the event, it appears to me to be wrong in principle to seek to confine the reference to 'serious injury' in sub-s (19)(c) to those words read literally. They have a necessary content in the circumstances of the particular case.

80 Having rejected the appellant's suggested rationale for the bracketed words in sub-s (19)(c), and having explained why those words have a necessary meaning in the context of any particular case, the question of the ambit of the issue estoppel can be addressed. It was said by the High Court in Metrobus[46] that it is uncontroversial that for the doctrine of issue estoppel to apply it is required -

(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.[47]

81 In the present case, no question arises about the application of requirements (2) and (3). The issue is where the 'same question' was decided. Concerning that issue, the Court referred to what was said by Barwick CJ in Ramsay v Pigram[48] as follows:

Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case.

82 What was said by Barwick CJ was wholly consistent with a passage in the judgment of Dixon J (as his Honour then was) in Blair v Curran[49] as follows:

A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.

Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue-estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter (1), the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.

That passage has been cited over and over again in the authorities. It was referred to in Metrobus, albeit in a different connection, without any suggestion of criticism.[50]

83 A number of other aspects of issue estoppel should be noticed. First, the distinction between evidentiary facts and a finding necessarily involved in making an earlier judgment or order has repeatedly been emphasised. Brewer v Brewer[51] was such a case. There, in maintenance proceedings, a woman alleged against her former husband that he had abused her, and been an adulterer. She had given no such evidence when he had sought a divorce from her on the grounds of her adultery. Had the woman given evidence in the divorce proceeding that her husband had behaved in such a way, and if that evidence had been accepted, it could conceivably have caused a discretionary refusal of the decree. But a finding that the former husband had in fact behaved in such a way, made in the divorce proceedings, would not have impugned any finding necessarily involved in making the decree.

84 Second, it is not possible to take a finding which would give rise to an issue estoppel, add additional facts, and thereby establish another estoppel. That is exemplified by O'Donel v The Commissioner for Road Transport and Tramways (NSW).[52] The plaintiff suffered a compensable incident in 1933. Later, he became blind in both eyes. In a common law proceeding, he sought and obtained a statutory entitlement to payment of his salary between September 1934 and his retirement in February 1935. In later proceedings, in which the worker claimed workers compensation payments from February 1935, the Workers Compensation Commission held that the worker's blindness from February 1935 was attributable to the progress of pre-existing (syphilitic) disease. Before the Commission, no estoppel was alleged. But after the Commission's decision, it stated a case, at the worker's request, with respect to that matter.

85 The question which the High Court considered was how far can an estoppel be extended by inference.[53] Latham CJ held that, for the purposes of the application in the Workers Compensation Commission, the determination in the Supreme Court of NSW had been a determination of past fact - that is, of an issue of causation up until, but not beyond February 1935. See also the judgments of Evatt J[54] and McTiernan J[55] to the same effect.

86 Third, unremarkably, where a statute requires an issue to be determined at one date, there is no issue estoppel if a later application requires that same issue to be determined at a later date, when circumstances may have changed. That was what was said by Brooking JA in DA Christie Pty Ltd v Baker.[56] His Honour concluded, in dissent, that the orders in question were not final. But his dissent says nothing about the statement of principle.

87 Fourth, in determining whether an issue estoppel has been made out, a court is entitled to look at the record, including the reasons for judgment, of the court or tribunal whose determination is said to create the estoppel.[57]

88 Fifth, it has been established in a series of cases that findings made in workers compensation proceedings may establish an issue estoppel in subsequent common law proceedings. In Somodaj v Australian Iron & Steel Ltd,[58] the question was whether a determination by the Workers Compensation Commission of New South Wales could give rise to an issue estoppel in subsequent common law proceedings. The particular issue concerned the occurrence or non-occurrence of compensable injury. The High Court held that there could be an issue estoppel in such a case. In Tringali v Stewardson Stubbs & Collett Ltd,[59] a question arose as to the availability of issue estoppel upon a question relevant to assessment of damages. It was held that such an estoppel could arise, even though it went to only part of the cause of action in the common law proceeding. But the doctrine of issue estoppel could not apply to some facets of damages known to the common law and not involved in an award for a respondent employer on the ground that incapacity no longer existed.[60] In Lombardo v Stuart Bros Pty Ltd,[61] the correctness of Tringali was, ultimately, accepted.[62] In the particular case, the Commission found the worker to be totally incapacitated by a number of compensable conditions, but did not accept that one particular aspect of a heart condition was employment related. The Court of Appeal concluded that the worker was not estopped from seeking to pursue a claim at common law reliant upon that aspect of the heart condition, because the conclusion that he was totally incapacitated had not been reliant upon that finding, which therefore had not been fundamental to the decision by the Commission.

89 One other aspect of Lombardo merits mention. Wallace P addressed the question of issue estoppel from the standpoint of the employer. He stated that, so far as the finding of compensable total incapacity ran against the employer, it 'related only to the period of time with which the award dealt'. His observation reflected a conventional principle of workers compensation law - that a determination of incapacity is a determination of present and (depending what is in issue) past incapacity, but that it does not speak for the future.

90 Sixth, references to 'the same question' or the 'precise matter' that has already been decided refer, in the context of an issue of fact, to a matter which the prior judgment 'necessarily established as the legal foundation or justification of its conclusion'. In Blair v Curran, Dixon J made it clear that the estoppel is not confined to the 'final legal conclusion' expressed in the earlier judgment. It extends to a 'matter which it was necessary to decide and which was actually decided as the ground work of the decision itself though not then directly the point at issue'. It follows that the reference to issue estoppel is not a reference simply to an issue in the sense of an ingredient of the cause of action. Put another way, the existence of issue estoppel does not depend upon there being precisely the same issue, in the sense of an element of a cause of action, being present in the earlier and the later proceeding. That point was made by Clarke JA in Egri & anor v DRG Australia Ltd,[63] when his Honour said -

It is not a necessary condition of an estoppel arising from such a finding that it be made in the determination of an issue which is identical with the issue in the later proceedings. It is sufficient if the finding, of fact or law or mixed fact and law, is made in respect of an identical question notwithstanding that that question may fall to be decided in the course of the determination of issues which are not identical.

91 In Metrobus, the High Court, under the heading 'Immaterial Matters', at least implicitly criticised one aspect of the judgment of Clarke JA in Egri - that is, his Honour's rejection of an argument that a failure by the worker to establish a fact in the prior proceeding was insufficient to create an estoppel preventing him from later seeking to prove that fact. This was part of an analysis by the Court of the question whether failure to prove a fact in an earlier proceeding may give rise to an estoppel. In the end, that question was left unresolved. The criticism of the judgment of Clarke JA in Egri was, however, confined to the particular point. That does not bear upon the correctness of what he said in the passage which I cited above.

92 The appellant relied upon Metrobus as a case in which a determination in a workers compensation context did not give rise to an issue estoppel in a later common law proceeding. There, in the context of provisions of the Workers' Compensation and Rehabilitation Act 1981 (WA), it was decided that the issue which a review officer had determined with respect to payments of compensation was not the same as that which would arise for the determination in the common law proceeding. The case turned upon the particular formulation of a conclusion reached by the review officer - that is, that a certain injury had 'resolved'.

93 The High Court stated that whilst it might have been possible for the review officer to have made findings which would operate as issue estoppel, he did not do so -

whether because the workers case before him was put in a particular way, or because the representative of Metrobus did not stipulate the findings which could be used as the foundation for issue estoppel, or because the issues in proceedings under the Act and in proceedings of common law in these particular circumstances are intractably different, or because of the informality of the proceedings before the second review officer.

Their Honours then explained why the finding adverse to the worker made by the review officer did not coincide with the issue of fact which the District Court would be called upon to decide in the common law proceeding.

94 Obviously enough, the possible operation of issue estoppel in Metrobus arose in circumstances which were very different to those of the present case. For here, a common law proceeding was not maintainable except for the s 134AB(16)(b) grant of leave, the grant depended upon a finding that 'the injury was serious injury', and by sub-s (19)(c) there was to be no issue estoppel except in respect of the finding that injury was serious injury.

95 What I have thus far said addresses many of the arguments raised for Brumar. But other arguments remain. One of them is the question whether the finding of serious injury necessarily correlated with and decided an issue arising on the trial of the common law proceeding. Two interrelated objections to an affirmative answer need to be considered. First, the objection that a finding of serious injury, based on statutory content, does not correlate with any issue for decision in a later common law trial. Second, the objection (it is interrelated with the first) that the finding of serious injury was fixed at a point in time which was different to, and irrelevant to, the time at which damages at common law were to be assessed.

96 I consider, albeit that 'serious injury' has a statutory content which is fundamental to the success of a s 134AB(16)(b) application, that a finding of 'serious injury' does address a factual issue which falls for determination in the common law proceeding. It does so by determining the consequences of compensable injury, in the case of mental or behavioural disturbance or disorder, to be permanent and severe. What is meant by 'severe' is to be assessed by placing the consequences of injury in the spectrum of the least serious to the most serious cases - a very obvious, though not mandated, jury methodology.

97 With respect to pain and suffering, I see no reason to think that a decision favourable to a worker on a s 134AB(16)(b) application, despite its statutory framework, should not give rise (putting aside the 'timing' question) to an issue estoppel. But then there is the matter of a determination in respect of 'loss of earning capacity'.

98 Section 134AB(38)(e)(f)(g) set out a methodology for assessing the extent of a worker's loss of earning capacity. It is relevant for the purposes of determining whether, for the purposes of the Act injury is serious in its loss of earning capacity. It involves an enquiry which is remote from the task which a judge or jury must undertake when considering, in a common law action, whether the plaintiff has established loss of earnings or loss of earning capacity.

99 In the present case, the learned County Court judge did not need to concern himself with the intricacies of sub-s (38)(e)(f) and (g). For he was satisfied that Ms Norris had been totally incapacitated for work since the compensable incident in December 1999 and that such incapacity was permanent.

100 In determining what estoppel, if any, arose in the particular case, the judge below was entitled to study the reasons of the County Court judge. Whatever difficulties might have arisen if the latter had only determined that the respondent's mental injury was severe in its loss of earning capacity consequences by recourse to the 'more than 40 per cent' regime set up by sub-s (38)(e),(f) and (g), those difficulties did not arise here. Indeed, the County Court judge decided that the respondent had been and continued to be, totally incapacitated having taken sub-s (38)(g) into account. That was probably a more onerous task than that which the respondent had to face in the common law proceeding.

101 The learned judge below confined the estoppel which he concluded arose, so far as it concerned loss of earning capacity, to the specification in sub-s (38)(d) - that is, that the loss of earning capacity consequence was, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe.

102 Again putting the 'timing' issue to one side for the moment, I incline to the conclusion of the learned judge that, for the purposes of issue estoppel, the fundamental issue determined should go no further than that. But in the present case it would make no difference.

103 I turn to the 'timing' issue. In my opinion, it does not deny that an estoppel arose. It is true, so far as Ms Norris sought to establish the quantum of damages referable to the compensable injury, that assessment was to be made as at the date of trial, and was to embrace both the past and the future. It is next the fact that the finding that the injury was serious injury, although it required a finding of permanence, did not necessarily mean that the serious consequences of the compensable injury would inevitably be permanent. The element of prediction inherent in a finding of serious injury might be shown to be erroneous by reason of later occurring circumstances. It might be accepted also, depending on the circumstances in the particular case, that a finding of serious injury would not conclude the past. But by the timing issue, what the appellant sought to do was to characterise issue estoppel as if 'quantification of damages' was an indivisible issue for the purposes of the doctrine. In my opinion, such a characterisation would be inconsistent with the principles enunciated (which is not to say the results) in Metrobus, Tringali, Lombardo and Egri. Neither could this case be described as one in which the respondent sought to take an estoppel and add other facts to it so as to create a different estoppel. An analogy with O'Donel would be inapt.

104 Next, in concluding that there was an issue estoppel in this matter, as the learned judge below characterised it, I have not ignored the appellant's reliance upon s 134AB(23)(b). Nor have I ignored, although it is not relevant in the present matter, paragraphs (c) and (d) of sub-s (23). Apart from the oddity that sub-s (23) would create a different regime depending upon whether a trial of a common law action was by a judge alone or judge and jury, the short answer to the appellant's reliance on the sub-section is that reliance upon the estoppel need not involve the jury being informed that there has been a determination of serious injury. All that would matter is that the jury be told that the employer was precluded from arguing the contrary of the content of the issue estoppel.

105 I should mention also the appellant's argument that it would be anomalous if the combined effect of sub-ss (16)(b) and (19)(c) was held to give rise to an estoppel when no such result would flow from the operation of sub-s (15) or (16)(a). So far as sub-s (15) is concerned, no disconformity would arise - see below. I doubt either, though the point need not be decided, that any disconformity would arise in the case of sub-s (16)(a).

106 I should say something more about the matter of permanency. As I have already said, the date of determination is relevant to consideration of permanency. As to the conception of permanency, see Barwon Spinners Pty Ltd v Podolak.[64]

107 A finding of permanency requires an evaluation of evidence, on balance of probabilities, with respect to the future. Because it necessitates prediction, it might, logically, be overtaken by events. A person who, at time of application, appeared unlikely to work again might, before a trial of his or her common law proceeding, in fact obtain employment of pre-injury adjusted earnings. Likewise, symptoms which were adjudged likely to remain permanent might prove, with a passage of time, not to be of that character. A finding of serious injury could not logically stand an issue estoppel on the question of serious injury for all time after the finding was made.

108 Then consider the period between a worker sustaining compensable injury and the hearing of his or her s 134AB(16)(b) application. Because the finding is required to be made at the time of the hearing, an application might succeed, even if, had the situation of some earlier time been pertinent, the applicant must have failed to establish serious injury. It is common enough that a worker does not succumb to incapacity for work until some time - often, a considerable time - after sustaining injury. Likewise, in some cases, the pain and suffering consequences of injury intensify, rather than diminish with the passage of time. So, depending upon the circumstances disclosed at the hearing of the application, determination of serious injury at that time may necessarily imply that such a state of affairs existed in the past. That would be so where, for instance, the determination reflected evaluation of symptoms and treatment, or of attempts at rehabilitation or retraining, in the period between injury and the hearing of the application. In the event, the issue estoppel may necessarily say something with respect to the period before determination of the s 134AB(16)(b) application; but not always do so.

109 Finally, I make this observation: the learned judge formulated the estoppel strictly in accordance with the language of s 134AB(37) and (38) (b) and (d). But, if the matter should in the future arise in a jury trial, I think that it would be possible to give a simpler direction which would nonetheless sufficiently describe the estoppel.

110 I noted earlier that Brumar pursued other grounds of appeal. By grounds 4-6, complaint was made about the discharge of the jury. Counsel conceded, however, that these grounds would fall away if the issue estoppel arguments failed. In the event, it is unnecessary to say anything[65] with respect to grounds 4-6.

1. The learned trial judge erred in finding, contrary to the evidence and the weight of the evidence and the probable course of events and the general medical conditions of the Respondent, that -

(a) the Respondent has been unemployable since the robbery incident in December 1999 ...;

(b) absent the robbery incident, it was likely that the Respondent would have worked to age 65 ...;

(c) an assessment of damages in relation to the Respondent's past loss of earnings and past loss of superannuation should be discounted by only 10% to take account of such matters ...;

(d) an assessment of damages in relation to the Respondent's future loss of earnings and superannuation should be discounted for vicissitudes by only 15% to take account of such matters ... -

by reason of which his Honour erred in the proper assessment and calculation of the Respondent's claims for damages for past and future loss of earnings and superannuation.

1. The learned trial judge erred in finding, contrary to the evidence and the weight of the evidence, that the Respondent did not have a 'life', did not want to go anywhere and did not want to go out of the house ... .
2. The learned trial judge's assessment of the Respondent's pain and suffering damages in the sum of $200,000 was contrary to the evidence and the weight of the evidence concerning the capacities of the Respondent and injury suffered by her and accordingly manifestly excessive ... .

112 Appellate courts are reluctant to set aside assessments of damages made at trial. As Winneke P (with whom Callaway and Vincent JJA agreed) observed in Royal Dental Hospital v Akbulut:

If it cannot be shown that the judge has acted upon any error of principle or misapprehension of relevant facts, an appellate court will only interfere with his or her assessment if it is satisfied that he or she has made a wholly erroneous estimate of the damages suffered.[66]

113 At trial, the respondent led evidence from a psychiatrist (Dr David Kruse), an occupational physician (Dr Helen Sutcliffe) and a consultant psychologist (Ms Treena Mossop); and tendered reports prepared by those experts. The defendant tendered reports from three psychiatrists: Dr Dush Shan, Dr Paul Kornan and Associate Professor Mendelson.[67]

114 The medical evidence was directed at two key contested issues, namely, the plaintiff's capacity for suitable employment, and the severity of her condition. The learned trial judge's assessment of the evidence generally, and in that context his acceptance of the opinions given by the medical witnesses called for the respondent, provided the basis for these conclusions:

• that the respondent had sustained a post traumatic stress disorder with attendant anxiety and depression, these conditions having had a 'severe and major impact' on both her personal life and her work capacity;

• that, (except for a failed attempt at part-time employment between late 2007 and mid 2008) the respondent had been unemployable since the robbery;

• that the respondent's condition and unfitness for employment was likely to persist for the foreseeable future.

115 The learned trial judge resolved a conflict in the medical evidence by preferring the evidence adduced for the plaintiff. He explained why he so concluded as follows:

The opinions of the plaintiff's treating doctors have been formed over the years after considerable numbers of consultations. The difficulty for the defendant is that its experts have, by comparison, seen the plaintiff on very few occasions. Further, much of the opinion evidence is dependent upon what the individual treater or examiner makes of the plaintiff. That is, whether the doctor accepts the plaintiff's account or whether the doctor is sceptical for one reason or another. Having seen the plaintiff give evidence over the days she was in the witness box I formed the view (for the reasons already given) that her evidence should largely be accepted. A point made by the defendant is that the plaintiff cannot be as psychiatrically disabled as she claims because she has kept up her appearance and wears makeup. Doctor Sutcliffe disposed of this suggestion by referring to the difference between psychotic patients and those with other psychiatric conditions. Further, Dr Sutcliffe was able to recall one occasion when the plaintiff 'arrived with her hair not neatly done and with her makeup not done, shaking and overwhelmed with the anxiety of the situation'. In the end, for the reasons given above, I prefer the opinions of the plaintiff's treaters rather than the defendant's medico-legal experts.[68]

116 The appellant's challenge to the learned trial judge's assessment of damages, as developed orally, centred on the paragraph in his reasons just cited. According to the appellant's submissions, the judge's conclusion, favourable to the respondent, was founded on a misapprehension as to the tenor of the evidence given by Dr Kruse, or else an unwarranted failure to bring to account concessions made by the doctor that the respondent had some work capacity.

117 Counsel's further oral submission was that the respondent's failure to manage work in 2007 and 2008 did not gainsay her having some work capacity, because the work which she had attempted had been 'clearly unsuitable'.

118 In writing, counsel submitted also that the learned judge had not given a valid reason for rejecting the evidence of his client's medico-legal witnesses. True it was that none of them had interviewed the respondent very often, and that two of the three had not examined her since 2005. But, as against that, counsel submitted, the principal medical witnesses for the respondent had not treated her for some years before trial. Further, although each of them had re-interviewed her in 2009, those interviews were temporally removed from the period when they had treated her; and the interviews thus left them no better placed than the appellant's witnesses to assess the respondent's condition and employability.

119 In dealing with these arguments it is helpful to first focus on the reasoning process adopted by the learned trial judge. Important in that process was his observation that 'much of the opinion evidence is dependent upon what the individual treater or examiner makes of the plaintiff ... whether the doctor accepts the plaintiff's account or ... is sceptical for one reason or another'. The correctness of that observation was not challenged before us. It was in that context that the learned trial judge had regard, inter alia, to the number of times the various experts interviewed the plaintiff.

120 The evidence clearly established that the respondent attended Dr Kruse, Dr Sutcliffe and Ms Mossop on many more occasions than she attended the respondent's medico-legal experts:

• Dr Kruse first interviewed the respondent in October 2000. She consulted him on a regular basis until late 2003. He reviewed the respondent on 29 July 2004 and 14 April 2005. He conducted two further assessment interviews, on 30 March 2009 and 12 May 2009. His reports dated 31 October 2000, 5 September 2001, 15 January 2003; 5 May 2005 and 20 May 2009 were tendered at trial.

• Dr Sutcliffe treated the respondent at regular intervals over the period from 18 February 2000 until May 2005. She further interviewed and assessed the respondent on 5 March 2009. Her reports dated 4 December 2001, 7 February 2003, 29 November 2004, 5 May 2005 and 20 March 2009 were tendered in the proceedings below.

• Ms Mossop treated the respondent on a regular basis between 19 March 2000 and 25 October 2004. She conducted an assessment interview with the respondent on 16 February 2009. Her reports dated 27 November 2002, 11 April 2005, 24 April 2009 and 29 May 2009 were tendered below.

121 The respondent was assessed by Dr Shan on two occasions (18 July 2000 and 29 November 2004). The duration of the second assessment was only 30 minutes. Dr Kornan interviewed the respondent on one occasion only, 5 May 2004. Associate Professor Mendelson saw the plaintiff on three occasions, 26 February 2005, 22 May 2008 and 29 January 2009.

122 As I noted above, the learned trial judge assessed the medical evidence having regard to the fact that much of it was dependent upon the assessor's acceptance, or otherwise, of the respondent's account. There was no challenge to the correctness of such an approach and, in any event, it was clearly open to his Honour to proceed on that basis in the circumstances of this case. Thus, it was logical to take account of the number of times the respondent was seen by each of the medical experts. Frequent contact with the respondent over a lengthy period was likely to provide an assessor with a considerable advantage over those assessors who only saw her on a few occasions. Frequent contact would provide an opportunity to assess the respondent's presentation at different points in time and to test the consistency of her responses to questions. It is likely also that the respondent would be more at ease with medical people with whom she had established a rapport; and so that a reliable assessment could be made of her condition and prognosis.

123 A second point to note is that each of the respondent's experts re-assessed her in 2009, whereas Drs Shan and Kornan had last assessed the respondent in 2004. Of the appellant's experts, only Associate Professor Mendelson assessed the respondent in 2009. I do not accept the appellant's submission that, in effect, the respondent's experts were not advantaged by those recent interviews in assessing her. In each case, the interview took place against a background of experience of her reported problems, and of many observations of her presentation.

124 It must next be noted that the judge's acceptance of the opinions of the respondent's medical experts did not rest only upon their acceptance of her account and presentation. For his Honour, having had an opportunity of observing her for an extended period in the witness box, made a favourable assessment of the respondent's reliability.

125 The learned trial judge's assessment of the respondent's incapacity for work was further supported, in my opinion, by her actual experience in attempting to return to employment after the robbery. I disagree with the appellant's submission that nothing could be made of the failed attempt. The evidence showed that the respondent attempted a return to work with Heathdale Community Centre, under the auspices of the Salvation Army Employment Trust. She was employed as an administrative support worker on a part-time basis, averaging 15 hour per week, between November 2007 and June 2008. Her performance was described by the manager of the Centre, Ms Monohan, as follows:

[She] struggled significantly. Pat had trouble focussing and on keeping track on the task. We struggled a little bit having to repeat things over and over and over again, and she never ever really got the idea of what it was we were doing, so it was a constant learning experience for her. We were always teaching her the same thing over and over. She got along with the staff really well, but there were numerous other tasks that she didn't really perform well over the period that she was with us.

126 When asked whether the respondent was effective in the job, Ms Monohan replied:

No, not at all, and that was one of the reasons we unfortunately had to let Pat go. My board of management see no advantage of applying for funding to keep a position where that particular person was not effective in that position.

127 The respondent's lack of success in her employment with the Centre was, in my opinion, particularly significant. It was supported employment, in the sense that the Centre received funding to subsidise her wages, and in the fact that the Centre was an employee-friendly organisation which saw its role as providing jobs for persons with difficulties entering the workforce.

128 I now turn to the appellant's contention that the learned trial judge misapprehended Dr Kruse's evidence. The essence of this submission was that his Honour made no reference to the doctor's viva voce evidence during which it was said that he conceded that the respondent had a capacity for part-time suitable employment. In support of this submission, counsel referred to an extract from the transcript of the proceedings below. There, Dr Kruse was taken to one of his reports, in which he opined that the respondent did not have a capacity to return to 'pre injury forms and levels of employment'. He said, viva voce, -

So, if she were to return to some form of part time employment, then I would want her to be careful about considering the nature of that environment.

129 That was far from a ringing endorsement of the respondent's capacity for part-time employment, particularly when placed in the context of the doctor's evidence as a whole. It is notable that, inter alia, the doctor went on to address the respondent's problems with memory and concentration, saying:

I think it is still likely that they are significant issues. ... the reports of how she functioned at work back then. I guess I'm going on some of my own experience of her. Coping with things like making appointments, getting to appointments with me, organising a referral to come and see me are things that in the last month she hasn't displayed the capacity to get very organised about. So some of those things would indicate to me that she might struggle with some of the demands of work in many situations.

130 In my view, assessment of the totality of Dr Kruse's evidence does not support the appellant's submissions. It follows that I am not persuaded that the learned trial judge misapprehended Dr Kruse's evidence.

131 Counsel for the appellant conceded, properly in my view, that if his central contentions were rejected then other points advanced by written submissions in relation to his Honour's assessment of damages would not of themselves be sufficient to disturb that assessment. It follows that ground 7, 8 and 9 should be rejected.

133 By paragraph 6 of the statement of claim[69] it is pleaded that -

By reason of the harassment by [F] and/or the failure of [B-Y] to respond, the plaintiff suffered injury loss and damage.

134 The particulars of injury subjoined in para 6 refer, inter alia, to -

Adjustment disorder with severe anxiety and depression.

135 The particulars of pecuniary loss and damage subjoined to para 6 allege that -

By reason of her injuries the plaintiff has been totally incapacitated from 17 November 2003 to date ...

The plaintiff remains totally incapacitated and is unknown when, if ever, she will recover sufficiently to resume any form of remunerative employment.

137 Paragraph 6 of the amended defence denies the allegations contained in paragraph 6 of the statement of claim. So, even if the behaviour described in paragraph 5 of the statement of claim was made out (the defence denies the occurrence of the impugned behaviour), issue is joined with respect to causation, injury and the extent of injury.

138 In the event, amongst the issues which would arise at trial, the existence and extent of the plaintiff's pain and suffering, and as well of any incapacity for work as at June 2006 - the time when the medical panel expressed its opinion under s 104B(9) and s 67 of the Act - would fall for consideration.

139 It is necessary next to note paragraphs 1A and 1B of the amended reply:

1A. The plaintiff joins issue with para.6 of the amended defence, and says that: -

(a) on or about 12 December 2005, pursuant to s.98C of the Accident Compensation Act 1995 ('the Act') the plaintiff made a claim for compensation against the defendant ('the plaintiff's claim for compensation');

(b) on or about 23 February 2006, in the course of processing the plaintiff's claim for compensation, the Victorian Work Cover Authority ('The Authority') by its authorised agent GIO Workers Compensation (Victoria) Ltd, accepted that the plaintiff had a psychological injury arising out of her employment with the defendant;

(c) on or about 22 March 2006, pursuant to s.104B(9) of the Act, the Authority referred the following medical questions to a medical panel for its opinion under s.67 of the Act: -

Question 1. What is the degree of impairment resulting from the accepted injuries assessed in accordance with s.91, and is the impairment permanent?

Question 2. Does the worker have an accepted injury which has resulted in a total loss injury mentioned in the table in s.98E(1)?

(d) on or about 28 June 2006, the Medical Panel provided its opinion ('the panel opinion') in relation to the medical questions as follows: -

Answer to question 1. The Panel is of the opinion that there is a 30% psychiatric impairment resulting from the accepted psychological injury, when assessed in accordance with s.91(2) for the purposes of s.98C and 134AB(3) & (15) of the Act. The degree of psychiatric impairment is permanent within the meaning of the Act.

Answer to question 2. No

(e) by virtue of s.68(4) of the Act, the panel opinion must be accepted as final and conclusive by, inter alia, this Honourable Court, and the defendant;

(f) on or about 15 August 2006, pursuant to s.104B(10) of the Act, the Authority advised the plaintiff of the panel opinion and her entitlements under s.98C of the Act;

(g) on or about 25 October 2006, the plaintiff made an application pursuant to s.134AB(4) of the Act;

(h) in the premises, by operation of s.134AB(15), the plaintiff was deemed to have suffered a serious injury within the meaning of the section;

(i) in the premises, in any trial of this action, the defendant is estopped from: -

(i) making any assertion whether by pleading, submission or otherwise; and, or alternatively

(ii) leading, eliciting or tendering evidence, whether in chief or in cross-examination or re-examination;

Inconsistent with: -

(A) the panel opinion;

(B) the plaintiff having, as at 28 June 2006, a serious injury as defined in s.134AB(37)(c) of the Act;

(C) the plaintiff having, as at 28 June 2006, a permanent severe mental disturbance or disorder;

(D) the plaintiff having, as at 28 June 2006, a psychological injury arising out of her employment with the defendant.

1B Further or alternatively, in further answer to para.6 of the amended defence, the plaintiff says: -

(a) by virtue of s.68(4) of the Act, the panel opinion must be accepted as final and conclusive by, inter alia, this Honourable Court, and the defendant, in any trial of this action;

(b) by virtue of the operation of s.68(4) of the Act, this Honourable Court and the defendant must accept as final and conclusive in any trial of this action, that as at 28 June 2006: -

(i) the plaintiff was suffering a 30% psychiatric impairment resulting from the accepted psychological injury (being that pleaded in para.1A(b) hereof); and

(ii) that the degree of the plaintiff's psychiatric impairment was permanent (within the meaning of that term as defined in the Act);

(iii) the plaintiff's psychological injury arose out of her employment with the defendant;

(c) in the premises, in any trial of this action, the defendant may not: -

(i) make any assertion, whether by pleading, submission or otherwise; and or alternatively

(ii) lead or elicit evidence, whether in chief, cross-examination or re-examination;

Inconsistent with: -

(A) the medical opinion;

(B) that as at 28 June 2006, the plaintiff was suffering a 30% psychiatric impairment resulting from the accepted psychological injury (being that pleaded in para.1A(b) hereof); and

(C) that as at 28 June 2006, the degree of the plaintiff's psychiatric impairment was permanent (within the meaning of that term as defined in the Act);

(D) that as at 28 June 2006, the plaintiff's psychological injury arose out of her employment with the defendant.

140 To those paragraphs, the defendant pleads by rejoinder:

1A. The Defendant joins issue with sub-paragraphs (e) and (i) and otherwise admits the allegations contained in paragraph 1A of the Plaintiff's Amended Reply.

1B. The Defendant joins issue on each and every allegation contained in paragraph 1B of the Plaintiff's Amended Reply.

141 These various allegations and responses raise for consideration the effect of the opinion of a medical panel ('the Panel' and 'the panel opinion') given pursuant to ss 104B(9) and 67 of the Act. The full text of that opinion is set out below. For the moment, I note four matters.

142 First, all the facts pleaded by paragraph 1A - including the WorkCover Authority's acceptance that the plaintiff had compensable psychological injury - are admitted. Only the legal consequences of the facts pleaded - that is, the matters pleaded by sub-paragraphs (e) and (i) of paragraph 1A - are put in issue.

143 Second, all of the matters pleaded by paragraph 1B - which express legal conclusions - are denied.

144 Third, paragraph 1A pleads an estoppel, whilst paragraph 1B pleads a specific statutory basis for the defendant being precluded from adducing evidence contrary to the panel opinion.

145 Fourth, each of paragraphs 1A and 1B limit the application of the pleaded estoppel/statutory consequence of the panel opinion to the time when such opinion was given - see paragraph 1A(i) (A)-(D) and paragraph 1B(b) and (c) (A)-(D).

146 The panel expressed this opinion on 28 June 2006:

The Medical Panel formed its opinion in response to a referral from GIO Workers' Compensation Australia Ltd, (a WorkCover Agent), received on 24 March 2006 pursuant to Section 104B(9) of the Accident Compensation Act 1985.

The Panel comprised the following members:

Dr. Diane Neill

Dr. Nathan Serry

As Presiding Member of this Penal, I have discussed the answers herein with the other Panel Member and this is the opinion of the Panel on the medical questions set out below.

Question 1. What is the degree of impairment resulting from the accepted injury/s assessed in accordance with Section 91, and is the impairment permanent?

Answer: The Panel is of the opinion that there is a 30% psychiatric impairment resulting from the accepted psychological injury, when assessed in accordance with Section 91(2) for the purposes of Sections 98C and 134AB(3) & (15) of the Act. The degree of psychiatric impairment is permanent within the meaning of the Act.

Question 2. Does the worker have an accepted injury, which has resulted in a total loss injury mentioned in the table in Section 98E(1)?

Answer: No.

The questions submitted for determination by this Court

1. Do any, and if so which, of the estoppels pleaded in para.1A(i) of the plaintiff's Amended Reply to Amended Defence arise?
2. Is this Honourable Court obliged to accept as final and conclusive in any trial of this action, any, and if so which, of the matters pleaded by the plaintiff at para.1B(a) and (b) of her Amended Reply to Amended Defence?
3. Is the defendant precluded from acting in any, and if so which, of the ways claimed by the plaintiff in para.1B(c) of her Amended Reply to Amended Defence?

148 In December 2005 the plaintiff made a claim under s 98C of the Act. That section entitles a worker who has suffered a compensable injury resulting in permanent impairment to compensation for non-economic loss assessed in accordance with s 91. In the case of psychiatric injury, the amount of compensation is determined by reference to the worker's 'degree of impairment'. Section 91 specifies the methodology whereby degree of impairment is to be assessed.

149 Next I should refer to s 104B, in its form as amended by Act no.102/2004.[70]

150 By sub-s (1), the section applies to a claim under s 98C.

(2) The Authority or self-insurer must within 120 days of receiving a claim made by the worker ...

(a) if the claim is a claim made by the worker, accept or reject liability for each injury included in the claim;

(b) obtain an assessment or assessments in accordance with section 91 as to the degree of permanent impairment (if any) of the worker resulting from the injury or injuries in respect of which liability is accepted;

(c) after taking into account the assessment or assessments obtained under paragraph (b), determine the degree of permanent impairment (if any) of the worker for each of the purposes of -

(i) section 98C;

(ii) section 134AB;

(iii) Subdivision 1 of Division 3A.

152 Pausing, the assessment made under sub-s (2)(b) would be made simply by an examining medical practitioner who had undertaken relevant training in accordance with statutory obligations. The Authority (or self-insurer) was not bound, however, by such an assessment: see s 104B(2A).

153 The section then provided, by sub-s (6B) that (in a case where the Authority or self insurer accepted liability for compensable injury) the worker had 60 days to accept or dispute the determinations of impairment and total loss.

154 Sub-sections (9)(10) (10A) and (12)(a) read as follows:

(9) The Authority or self-insurer must, within 14 days of being advised by the worker that the worker disputes the determinations of impairment or total loss in respect of the injury or injuries claimed, refer the medical questions as to -

(a) the degree of impairment assessed in accordance with section 91 resulting from the injury or injuries claimed for which liability is accepted or established; and

(b) whether the worker has an injury or injuries claimed for which liability is accepted or established which is a total loss mentioned in the Table to section 98E(1) -

to a Medical Panel for its opinion under section 67.

(10) The Authority or self-insurer must, within 60 days of obtaining the opinion of the Medical Panel under section 67, advise the worker of the opinion and the entitlement, if any, under section 98C or 98E.

(10A) The worker must, within 60 days of being advised by the Authority or self-insurer of the entitlement of the worker to compensation in accordance with sub-section (10), advise the Authority or self-insurer whether the worker accepts or disputes the entitlement to compensation.

(12) No appeal lies to any court or Tribunal from a determination or opinion -

(a) as to the degree of permanent impairment of a worker resulting from an injury;

155 Then it is necessary to go to s 134AB to see what significance the opinion of a Panel obtained under s 104B is to have for the purposes of s 134AB. Subsections (3) and (4)[71] relevantly say this:

(3) A worker may not bring proceedings in accordance with this section unless -

(a) determinations of the degree of impairment of the worker have been made under section 104B and the worker has made an application under sub-section (4);

....

(4) A worker may only make an application -

(a) if sub-section (3)(a) applies, after the worker -

(i) has advised the Authority or self-insurer under section 104B(6B) or 104B(7B) that he or she accepts the determinations of degree of impairment; or

(ii) has received the advice of the Authority or self-insurer under section 104B(10; or

...

(7) The Authority or self-insurer must, within 120 days ... of receiving the application, advise the worker in writing -

(a) that the worker is deemed to have a serious injury; or

(b) if the worker is not deemed to have a serious injury, whether or not the Authority or self-insurer will issue a certificate under sub-section (16)(a).

(15) If the assessment under section 104B made before an application under sub-section (4) is made of the degree of impairment of the worker as a result of the injury is 30 per centum or more, the injury is deemed to be a serious injury within the meaning of this section.

158 The panel opinion in this case called sub-s (15) into play.

159 Counsel for Ms Brown made the following submissions:

(1) The panel opinion gave rise to an issue estoppel between the plaintiff and defendant upon the issues determined by that opinion as at 28 June 2006.

(2) The pleadings showed that when the panel opinion was sought there was a dispute between the Authority, a privy of the defendant, and the plaintiff. There must be a dispute before there can be reference of medical questions to a panel. The parties to the dispute, and the nature of the dispute, were identified by s 104B(9).

(3) The questions referred for the opinion of the panel were questions comprehended by paragraphs (d) and (e) of the definition of 'medical question' in s 5(1) of the Act. The Panel's opinion was thus sought, in accordance with s 104B(9), upon questions within its statutory function: vide s 67(1) of the Act. In the event, the Panel had come under the duty imposed by s 68(1). It had complied with that obligation, and in consequence, by sub-s (4) -

(4) For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel is to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.

(4) Section 104B(12)(a) rendered the Panel's opinion of the degree of the plaintiff's impairment resulting from the injury unappellable 'to any Court or Tribunal'.

(5) The Panel's opinion was, by operation of s 134AB(15), conclusive, for the purposes of that section, that the plaintiff's injury was a serious injury.

(6) The liabilities of an employer and the WorkCover Authority were identical by reason of s 125A(2) of the Act and ss 7(i)(a) and 9(2) of the Accident Compensation (WorkCover Insurance) Act 1993. Each was the other's privy. So there was no significance in the fact that the Authority had referred the question to the Panel but that the employer was the defendant to the common law proceeding.

(7) The doctrine of estoppel arose in respect of any findings on issues determined by the Panel's opinion. The Panel's opinion did contain findings: that the plaintiff had a 30 per cent psychiatric impairment and that the impairment was permanent. The statutory import of the deemed permanent impairment was that the plaintiff suffered from a severe mental or severe behavioural disturbance or disorder in accordance with s 134AB(37).

(8) Viewed either as an estoppel, or else by operation of s 68(4) of the Act, the defendant was prevented from challenging, in the County Court proceeding, -

a matter of fact or law in a sense contrary to that in which the precise matter has already been necessarily and directly decided by a competent Tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities.[72]

(9) Concerning s 68(4), the circumstances differed from those considered by this Court in Pope v W S Walker & Sons Pty Ltd.[73] There, the Panel opinion had been obtained on referral by a conciliation officer, and was statutorily unrelated to s 134AB.

(10) It would be inconsistent with the Panel's opinion for the defendant to conduct its case on the basis that the plaintiff was not psychiatrically impaired at June 2006, or assert that the plaintiff's psychiatric impairment was not at that date permanent. The defendant could only assert that the then-impairment did not continue if it could lead evidence of a significant change in circumstances.

(11) The case was outside the reach of s 134AB(19)(c). That sub-section is concerned with applications made under s 134AB(16)(b), and the consequences of a successful application. The present case was governed by s 68(4), or else by ordinary principles of issue estoppel.

(12) It would be anomalous if, in a case of deemed serious injury resulting from the application of s 134AB(15), the preclusion upon challenge to the findings embodied in the Panel's opinion could be less than that operating, pursuant to sub-s (19)(c), in the weaker class of case which requires a sub-s 16(b) application.

(13) The analysis of s 134AB(23)(b) by Beach J in Norris was correct.

160 Counsel for the defendant made these submissions:

(1) The 'same question' was not decided because the Panel's jurisdiction, prescribed by s 104B(9) of the Act, could go no further than to make an assessment of the plaintiff's degree of impairment, measured according to a statutory dictate, as at 28 June 2006. Assessment according to that dictate did not arise in the common law proceeding.[74]

(2) The Panel's opinion was not a final judicial decision. There were no parties to the reference to the Panel, and no question between parties. There was neither right of representation, nor right of appeal. Finally, the Panel itself made no determination. It simply formed an opinion which by force of statute, and within limits, bound the WorkCover Authority.

(4) In all the circumstances, the Panel's opinion was akin to an administrative decision, and such decisions are not the subject of issue estoppel.[75]

(5) The suggested issue estoppel was inconsistent with the scheme established by s 134AB. The common law doctrine of issue estoppel must be moulded to accommodate s 134AB(23)(b). Further, the issue estoppel could not conflict with the statutory effect of a panel opinion which is prescribed by s 68(4) of the Act.

(6) If any issue estoppel arose, it was confined to the question of the extent of the plaintiff's impairment as at 28 June 2006. It could not be used to found an inference that the plaintiff was suffering from psychiatric impairment before or after that date.

(7) Section 68(4) of the Act did not avail the plaintiff. That was because the Panel's opinion was not relevant to any issue in the common law proceeding and because Pope v WS Walker & Sons Pty Ltd[76] in substance held that the operation of s 68(4) is limited to claims for statutory benefits and to applications for leave to bring proceedings under s 134AB(16)(b).

161 In my opinion, the questions raised by the case stated are resolved by reference to the operation of s 68(4) in the context of the operation of s 134AB. The steps to that conclusion are as follows.

162 First, the Panel's reference to 'psychiatric impairment resulting from the accepted psychological injury' is to be understood this way: 'The injury' was the injury in respect of which liability was 'accepted or established'. See s 104B(9). In the present case, see paragraph 1A(a) of the amended reply, (which the defendant admits) 'the injury' was an 'accepted psychological injury arising out of the plaintiff's employment with the defendant'. Note also that the first question referred by the WorkCover Authority to the Panel referred to 'the degree of impairment resulting from the accepted injuries'.

163 Second, the Panel's opinion, for two reasons, was final and conclusive. First, because s 68(4) provides that the opinion was 'to be adopted and applied by any court, body or person and must be accepted as final and conclusive by any court, body or person'; and second, because by s 104B(12)(a) the Panel's opinion 'as to the degree of permanent impairment ... resulting from an injury' was made unappellable.

164 Third, although s 134AB(15) does not itself refer to a consequence of the relevant opinion being that the worker may commence a common law proceeding, that is the import of sub-ss (3)(a), (4) and (15) read in combination.

165 Fourth, the statutory consequence of an assessment of impairment being 30 per cent or more is that, by s 134AB(15), 'the injury' is deemed to be a serious injury within the meaning of this section. Two points should be made: first, this creates a symmetry with sub-s (16)(a), which requires satisfaction that 'the injury is serious injury', and with sub-s (16)(b) which, in combination with sub-s (19)(a), requires satisfaction that 'the injury is serious injury'. Second, the true significance of the Panel's opinion thus resides in the statutory consequence of the impairment assessment.

166 Fifth, apart from the question as to the import of Pope v WS Walker & Son Pty Ltd,[77] a Panel's opinion that a worker suffered an impairment of 30 per cent or more, assessed by reference to the AMA guides, could not of itself[78] be relevant to matters for determination in a common law proceeding. That raises a question as to the meaning of s 68(4).

167 Concerning that question, by s 68(4) the Panel's opinion is to be accepted as final and conclusive. It must be adopted and applied. In the present context, the statute says that its adoption and application means that the (accepted or established) injury is deemed to be a serious injury for the purposes of s 134AB. This means, in the case of a psychiatric injury, that the injury is one which meets the serious injury test imposed by sub-ss (37) and (38)(b) and (d). Because sub-s (15) is expressed in unrestrained language, I consider that it should be read as meaning - except if there is no claim by the worker that the consequences of injury are severe with respect to loss of earning capacity - that the worker is deemed to suffer from serious injury both as to pain and suffering and loss of earning capacity consequences.

168 In the Norris matter, in the context of a successful application for leave to bring a proceeding under sub-s (16)(b), I have concluded that, quite aside from sub-s (19)(c), a worker would not be required to establish serious injury twice over. There is even less reason to conclude the contrary in a case of sub-s (15) deemed serious injury; or in a case in which, under sub-s (16)(a), the WorkCover Authority or a self-insurer, being satisfied that the injury is a serious injury, consents to the worker bringing a proceeding.

169 The question is then whether a Panel opinion which has the effect that the injury is deemed to be a serious injury within the meaning of s 134AB is to have an operation confined within that section. I have concluded that a determination of serious injury in a s 134AB(16)(b) application has a more extensive effect - that is, that it can give rise to an issue estoppel in a subsequent common law proceeding - the estoppel resulting from the decision itself, and being saved from the general effect of sub-s (19)(c) by the bracketed words in that sub-section.

170 It would be anomalous if an injury which is deemed to be serious injury had no effect in a permitted common law proceeding. That will not occur if, which in my view is the true situation, the panel opinion which is to be adopted and applied by a court is the opinion with its mandated serious injury consequences.

171 Sixth, counsel for the defendant submitted that the decision of the Court in Pope stood in the way of giving the panel opinion any operation in a common law proceeding authorised by s 134AB(15). I do not agree.

172 In that case, a judge hearing a s 134AB(16)(b) application held himself bound by the opinion of a Panel, on referral by a conciliator, that there was no longer any medical condition relevant to a claimed injury; and that it was not the case that the worker had no current work capacity. This Court held that the judge had erred.

173 The Court concluded that the word 'any' in s 68(4) could not be read literally. The Panel's opinion had been given on a referral in a statutory benefits claim, for the purpose of that claim. Its opinion should be so confined. Section 68(4) could have no relevance to a s 134AB application except if the Panel's opinion had been sought, as it might have been, under s 45(1A) of the Act. Then, its opinion would have been final and conclusive for the purposes of the s 134AB application.

174 In my opinion, the reasoning and conclusions of Eames JA (Neave JA and Bell AJA concurring), particularly at paragraphs [36]-[40],[79] does not require the conclusion that a Panel opinion which is given operation for the purposes of s 134AB(15) is to have no effect in a subsequent common law proceeding. The question of the effect of a Panel opinion given under s 104B(9) - that is, not obtained by the Court hearing a s 134AB(16)(b) application - and having relevance to s 134AB by virtue of s 134AB(15), did not arise for consideration. Neither did the possible impact of such an opinion on common law action permitted by the combination of s 134AB(3)(a), (4) and (15). Neither again did a question arise as to the possible relevance of a Panel opinion given on reference under s 45(1A) in a later common law proceeding. There is no parity of reasoning argument which yields the result contended for by the defendant.

175 Seventh, it was argued for the defendant that if s 68(4) applied to require a Panel opinion given under s 104B(9) to be adopted and applied in a common law proceeding, then it would apply whether the impairment was assessed at more or less than 30 per cent. So, it was said, if the assessment was less than 30 per cent and the worker either obtained a serious injury certificate, or was granted leave under s 134AB(16)(b), then on the plaintiff's case the Court hearing the common law proceeding would be faced with competing directions - one that there was no serious injury, and another that there was. But that is not so. If an impairment assessment is less than 30 per cent, then s 134AB(15) has nothing to say about it with respect to serious injury. It would be irrelevant to a common law proceeding because, as I have earlier said, it is the necessary adoption of an impairment assessment of 30 per cent or more with its mandated serious injury consequences which gives that assessment its significance.

176 In the event, Pope not standing in the way, and a finding that injury is serious injury being (as I have earlier concluded) relevant to a common law proceeding, I consider that the effect of s 68(4) is that an impairment assessment of more than 30 per cent given under s 104B(9), having the operation commanded by s 134AB(15), has the effect, in a common law proceeding, that the employer is not entitled to put in issue the fact that, at the time when the opinion was expressed, the worker suffered serious injury - in the present case, a permanent severe mental disturbance or disorder. It follows, in my opinion, that the consequences specified in sub-paragraphs (A)-(D) of paragraph 1B(c) of the reply are not correct. Those sub-paragraphs are an intended reflection of the dictate of s 68(4) of the Act. But they are too narrowly stated.

177 A further question arises. It was said by Warren CJ and Hargrave AJA in Sejranovic, as I have noted, that a s 134AB(16)(b) determination does not foreclose the issue of causation in a subsequent common law proceeding - single reference being made to sub-s (19)(c) in that connection. So to say was consistent with the observations in Wail to which I earlier referred and with my obiter dictum in Ansett Australia Ltd v Taylor. But accepting that to be the case, it does not follow that a Panel opinion operates in such a way. Under s 104B(9), what is to be referred is a medical question as to, inter alia, the degree of impairment resulting from 'the injury or injuries claimed for which liability is accepted or established'. That was the request in the present case, a request which was in terms addressed.

178 It appears to me, in the event, that s 68(4) requires, where an opinion is given in response to a s 104B(9) request, that a Court must act on the footing that there is a relationship of cause and effect between the 'accepted or established injury' and the impairment assessed - and thus, if s 134AB(15) applies, the deemed 'serious injury'.

179 The defendant would not be precluded, however, from seeking to show that the 'accepted or established injury' is an injury truly different from the injury pleaded by the plaintiff in the common law proceeding - though how that could be, when it is the injury which is deemed to be serious injury in respect of which a proceeding may be commenced, is difficult to imagine. Further, assuming that 'the accepted' injury is the same injury as that pleaded, a defendant should be able to explain away, if it can, its 'acceptance' of the compensability of injury.

180 It is unnecessary to decide whether the defendant would be estopped by a Panel opinion having effect under s 134AB(15) from putting in issue the matters pleaded by paragraph (1A)(i) of the reply. But I make these observations, on a tentative basis, with respect to that matter.

181 First, the Panel opinion was surely final in the sense described by the High Court in Metrobus. Its finality is made clear by s 68(4) and s 104B(12), whether considered simply or in combination.

182 Second, the Panel opinion, for reasons described earlier, addressed 'the same question' as does the common law proceeding.

183 Third, there is a question whether there were parties to the procedure which culminated in the Panel giving its opinion in response to the medical questions which were referred to it.

184 The procedures and powers of Panels are set out in s 65 of the Act. Panels are not bound by rules of evidence, and they must act informally.[80] Any attendance of a worker is to be private unless the Panel considers that it is necessary for another person to be present.[81] The person or body referring a medical question to the Panel must specify the (alleged) injury to which the question relates, and specify what facts/questions of fact are agreed, and those which are in dispute. Further, that person or body must submit all documents in his/its possession to the Panel.

185 Before a question is referred to a medical panel under s 104B(9), there must be a disputed determination of impairment or total loss. The determination will have been made by the WorkCover Authority or self-insurer. The worker will have disputed the determination.

186 In my opinion, for the reasons advanced by the plaintiff, the WorkCover Authority or self-insurer is to be regarded as the privy of the employer. But, accepting that there will be a dispute, in substance, between the worker and the employer before a medical question is referred to a Panel for opinion, should it be said that they are parties to a determination in respect of the opinion eventually given by the Panel? In my view, the nature of the Panel procedure as I have described it does mean that there are parties to the Panel's consideration of the medical question(s) referred to it. True it is that the parties will not, or at least may not, physically join issue before the Panel. But the ambit of the dispute, and the material relied upon by each side will be before the Panel, including factual matters and questions agreed or disputed. Further, the Panel may hear viva voce from the worker and from doctors. I consider also that what was said in Metrobus,[82] although addressed to the issue of finality, stands in favour of the conclusion I have reached.

187 Fourth, although the Panel opinion addressed 'the same question' as does the common law proceeding, and despite its finality, there is a question whether it was a 'judicial decision' within the meaning given that concept by Gibbs J in Administration of Papua and New Guinea v Daera Guba.[83] According to the defendant's argument, there was no decision at all; the Panel simply provided an opinion. It had no effect unless and until it was 'adopted and applied by any court, body or person'. Further according to the defendant's argument, any 'decision' was of an administrative character; and such decisions do not give rise to issue estoppel. It was in the latter connection that counsel referred to Pastras v The Commonwealth.[84] There, Lush J said this:

In Somodaj's case Owen J emphasized the standing of the New South Wales Commission as a judicial tribunal. His analysis immediately leads to the inference that some, if not all, decision-making bodies which are not judicial tribunals lack the power to bind the parties affected by their decision in the relevant way. However, the mere fact that a court is not a court of record does not place it in this latter class nor does it matter if the body is not called a court at all. It has been said the real test is one of jurisdiction: Gibbs v McCorquodale. All the authorities refer to those bodies whose decisions can be binding on the parties by estoppel as 'judicial' or as 'tribunals' and as 'having jurisdiction'. See the often-quoted judgment of Jordan CJ in Ex parte Amalgamated Engineering Union (Australian Section); Re Jackson; Attorney-General v Brickworks Pty Ltd; Bradshaw v McMullan and Torrisi v Oliver.[85]

The underlying principle of this form of estoppel is that parties who have had a dispute heard by a competent tribunal should not be allowed to litigate the same issues in other tribunals. When the decision-making body is an administrative body not affording the opportunity of presenting evidence and argument, it seems to me there is no room for the operation of this principle.

and

It appears to me that both upon the general language of the authorities to which I have referred and upon the principle which I have endeavoured to describe, no estoppel can arise from a decision of an administrative authority which cannot be classed either as 'judicial' or as 'a tribunal', and that an authority cannot be given either of those classifications if it is one which is under no obligation to receive evidence or hear argument.

188 In my opinion, the facts which arose in Pastras could not be compared with the circumstances in which medical questions were referred to the Panel for its authoritative opinion, and with the procedures which the Panel was obliged by statute to adopt. I do not accept the characterisation of what the Panel was obliged to do as 'a mere administrative decision'.[86]

189 Further, with respect, the language used by Lush J in Pastras, in the second passage which I cited does not sit comfortably altogether with this passage in the judgment of Gibbs J in Daera Guba:

Secondly, much attention was directed to authorities that deal with the nature of judicial power, for example in relation to Ch. III of the Constitution. In many of the authorities that discuss this form of estoppel, it is said that the estoppel is brought about by a judicial decision, pronounced by a judicial tribunal. Thus in a recent case, Carl Zeiss Stiftung v. Rayner & Keeler Ltd. [No. 2], Lord Guest said:

'the rule of estoppel by res judicata, which is a rule of evidence, is that where a final decision has been pronounced by a judicial tribunal of competent jurisdiction over the parties to and the subject-matter of the litigation, any party or privy to such litigation as against any other party or privy is estopped in any subsequent litigation from disputing or questioning such decision on the merits (Spencer Bower on Res Judicata, p.3).'

The use of the phrase 'judicial tribunal' in this context is convenient as indicating that, an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative: see Caffoor v. Commissioner of Income Tax, Colombo, per Lord Radcliffe.[87] [Ibid, 453]

190 In the end, in my opinion, the issue resolves itself into whether the opinion of the Panel, albeit final and conclusive, was a decision at all. It is true that the opinion, absent the command given by s 68(4), and in the particular case the deeming effect of s 134AB(15), did not affect the disputants. But it seems to me that to break up the expression of the opinion and its necessary consequence for the disputants would be entirely artificial. I therefore consider that the Panel's certification of its opinion was a final decision for the purposes of the doctrine of issue estoppel.

191 I would answer questions in the case stated as follows:

(2) and (3) The defendant is prohibited in this proceeding from -

(a) making any assertion, whether by pleading, submission or otherwise; and

(b) leading or eliciting evidence, whether in evidence-in-chief, cross-examination or re-examination;

which is inconsistent with the opinion of the Medical Panel provided on or about 28 June 2006; and in particular from making any assertion, or leading or eliciting evidence, to the contrary of the following:

(i) that the plaintiff as at 28 June 2006, suffered a permanent (in the sense of being likely to last into the foreseeable future) mental or behavioural disturbance or disorder which was severe by reference to its consequences with respect to pain and suffering and loss of earning capacity when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders.

(ii) that it was the pain and suffering and loss of earning capacity consequences of the accepted psychological injury which constituted the permanent mental or behavioural disturbance or disorder which was severe.

[2] This was the time the application before Judge Dove was heard (see s 134AB(38)(j)).

[3] See Norris v Brumar (Victoria) Pty Ltd [2009] VSC 214.

[4] Norris v Brumar (Victoria) Pty Ltd (No 2) [2009] VSC 218 [3]-[4].

[5] Cf Tringali v Stewardson Stubbs and Collett Ltd (1966) SR (NSW) 341-342.

[6] What I now set out embraces both the written outlines of argument and matters orally submitted. As to the latter, a few submissions, which I will for the most part not differentiate, were raised in reply.

[7] Reliance was placed on my judgment, dissenting on this point, in Alcoa of Australia Ltd v McKenna [2003] VSCA 182; (2003) 8 VR 452, 467 [40], a case concerned with a particular aspect of the relationship between s 135A(2) and (4) of the Act.

[8] [2004] HCA 34; (2004) 220 CLR 363, particularly 381 [47], 382-383 [51] (Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).

[9] [1968] HCA 34; (1968) 118 CLR 271, 276.

[10] Brewer v Brewer & Anor [1953] HCA 19; (1953) 88 CLR 1, 15 (Fullagar J).

[11] [1938] HCA 15; (1938) 59 CLR 744, 758-759 (Latham CJ) 762-763 (Evatt J).

[12] [1996] VicRp 89; [1996] 2 VR 582, 584, 593 (Brooking JA).

[13] (1988) 19 NSWLR 600, 609 (Clarke JA, with whom Mahoney JA agreed).

[14] [1994] VicRp 32; [1994] 1 VR 436, 437 (Brooking J).

[15] [2002] VSCA 150; (2002) 5 VR 169, [18]-[20] (Winneke P, Charles and Batt JJA).

[16] Hansard, Assembly, 13 April 2000, pp 1004-1005.

[17] [2008] HCA 13; (2008) 234 CLR 124.

[18] And is not appealed; or else after appeal.

[19] [1939] HCA 23; (1939) 62 CLR 464, 531-532.

[20] In this connection, he referred to the statements of Neave JA in Filipovski v Ogemi Services Pty Ltd & Anor [2009] VSCA 230, [103]-[104].

[21] [2009] VSCA 108, [180] (Warren CJ and Hargrave AJA). See also my observation, strictly obiter dictum, in Ansett Australia Ltd v Taylor [2006] VSCA 171, [57].

[22] Presumably, a reference to an issue agitated, in the context of s 135A, in Alcoa of Australia Ltd v McKenna [2003] VSCA 182; (2003) 8 VR 452.

[25] [2009] VSCA 108.

[27] Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, 381 [47].

[28] Counsel cited, by analogy, Ajinvan v Fry [2001] VSCA 148; (2001) 3 VR 644, 650-651 [16], and 651-652 [17] (Phillips JA).

[29] [2008] HCA 13; (2008) 234 CLR 124, 130 [11].

[30] That was said to be the situation in Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108, [180] (Warren CJ and Hargrave AJA). Their Honours referred to 134AB(19)(c) in that connection, but without explanation. Nor did I refer to sub-s (19)(c) in Ansett Australia Ltd v Taylor [2006] VSCA 171, [57].

[31] Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 [47]-[54].

[32] Kovacic v Henley Arch Pty Ltd [2009] VSCA 56, [4].

[34] See, inter alia, s 134AB(38)(e), (f).

[36] [1995] VicRp 32; [1995] 1 VR 480.

[37] [1997] 1 VR 285.

[38] In Bowles, in the context of s 135A, I drew attention to the distinction between the commencement of a proceeding and the recovery of damages. So did Phillips JA in Hanrahan. His Honour expressed uncertainty as to the meaning to be accorded to the expression 'recover damages'. But that issue was not developed, and it does not touch the principle for which the two cases stand.

[39] [2003] VSCA 182; (2003) 8 VR 452.

[40] Ibid 460-461, [19] (Chernov JA). In my dissent, I concluded that the worker must establish, on balance, that he or she had suffered compensable injury which was serious injury and which fell within the timing requirements set up by s 135A(2). If that was not so, then there was a prospect that, 'as a matter of reality, a worker might have to establish serious injury twice over.' Ibid 467, [38]-[39].

[41] [1994] VicRp 32; [1994] 1 VR 436, 437. See also Barlow v Hollis [2000] VSCA 26; (2000) 30 MVR 441, 444-5 (Chernov JA).

[42] [2004] VSCA 55; (2004) 10 VR 361, 364-366, [12]-[17] (Buchanan JA) and 367-368, [22]-[24] (Chernov JA).

[43] [2005] VSCA 144; (2005) 12 VR 692, 696, [16]-[17] (Callaway JA).

[44] [1992] VicRp 58; [1992] 2 VR 129.

[45] [2002] VSCA 150; (2002) 5 VR 169. See also [2002] VSCA 150.

[46] [2004] HCA 34; (2004) 220 CLR 363.

[47] Ibid 373, 21, citing the speech of Lord Guest in Carl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) [1967] 1 AC 853, 935.

[48] [1968] HCA 34; (1968) 118 CLR 271, 276.

[49] [1939] HCA 23; (1939) 62 CLR 464, 531-532.

[50] Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, 386 [62].

[51] [1953] HCA 19; (1953) 88 CLR 1, 10 (Williams, Webb and Taylor JJ), [16] (Fullagar J, Dickson CJ agreeing).

[52] [1938] HCA 15; (1938) 59 CLR 744.

[56] [1996] VicRp 89; [1996] 2 VR 582, 593.

[57] Egri & Anor v DRG Australia Ltd (1988) 19 NSWLR 600, 607 (Clarke JA), and the cases there cited.

[58] [1963] HCA 50; (1963) 109 CLR 285.

[59] (1965) 66 SR (NSW) 335.

[61] (1967) 68 SR (NSW) 159.

[64] [2005] VSCA 33; (2005) 14 VR 622, 632-633 [18]-[19], 639 [34] (Phillips JA).

[65] This includes the debate with respect to the significance (or otherwise) of the learned judge's reasons, [2009] VSC 218 [56].

[66] [2002] VSCA 88, [16].

[67] It also tendered a report from a gastroenterologist, Dr Andrew Jakobovitis, but that report was of limited relevance.

[69] Endorsed on the writ filed 18 July 2007.

[70] Made relevant by s 279 of the Act, the amended provision operating from 21 December 2004.

[71] Again, as amended by Act no.102/2004.

[72] Ramsay v Pigram [1968] HCA 34; (1968) 118 CLR 271, 276 (Barwick CJ), cited with approval in Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, 379, (The Court).

[73] [2006] VSCA 227; (2006) 14 VR 435.

[74] Counsel referred to O'Donel v Commissioner for Road Transport and Tramways (NSW) [1938] HCA 15; (1938) 59 CLR 744, and Radcliffe v Pacific Steam Navigation Co [1910] 1 KB 685, cited by Brooking J in Christie v Baker [1996] VicRp 89; [1996] 2 VR 582, 593.

[75] Counsel cited Pastras v Commonwealth (1966) 9 FLR 152, 155 (Lush J), and compared Tavares v Tavares [2003] VSCA 12; (2003) 6 VR 577, 581 (Phillips JA).

[76] [2006] VSCA 227; (2006) 14 VR 435.

[77] [2006] VSCA 227; (2006) 14 VR 435.

[78] There is one qualification to this. It goes to causation. See later in these reasons.

[79] Pope v WS Walker & Son Pty Ltd, [2006] VSCA 227; (2006) 14 VR 435, 444-5.

[82] [2004] HCA 34; (2004) 220 CLR 363, 377, [32].

[83] [1973] HCA 59; (1973) 130 CLR 353, 453. In Metrobus, his Honour's description of the concept was described as 'common ground'.

[84] (1966) 9 FLR 152.

[86] The language of Gibbs J in Administration of Papua & New Guinea v Daera Guba [1973] HCA 59; (1973) 130 CLR 353, 453.