Brumar (Vic) Pty Ltd v Norris; Brown v Maurice Blackburn Cashman [2010] VSCA 206

Brumar (Vic) Pty Ltd v Norris; Brown v Maurice Blackburn Cashman [2010] VSCA 206 - VSCA 2010 case summary — Zoe

[16]

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]

[19]

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.

[36]

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'.
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.
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.'
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.

[57]

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.

[128]

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.

[206]

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.

At a glance

Court

Decision date

Before

Source

Judgment (361 paragraphs)

Brumar (Vic) Pty Ltd v Norris; Brown v Maurice Blackburn Cashman [2010] VSCA 206 (25 August 2010)

Legislation Cited (6)

Cases Cited (20)