EDWARDS v ALLMEN ENGINEERING PTY LTD and ANOR

"That the respondent pay the applicant as compensation under s66, the sum of $880 representing ten percent loss of the applicant's right ringfinger." In the earlier claim (CC 03401/90) Allmen denied incapacity. It put the appellant to the proof. It denied other aspects of the claim for weekly compensation. Burke CCJ, in his earlier decision of 30 August 1990, recorded that the appellant:

"Claims weekly payments in respect of incapacity alleged to result from (his injury with Allmen)."

His Honour describes an injury of 29 October 1981 when the appellant "was engaged in fabricating a gasket for a flange".

Burke CCJ went on to describe the appellant's claims then before him:

"There may have been a temporary exacerbation of symptoms, but one could not on the totality of the evidence, come to the conclusion that the applicant had suffered a relevant injury or that the loss, which the medical panel found, was the consequence of work performed at William Wallbank between 8 and 16 October 1981. In relation to the claim in respect of the right hand or the finger, the applicant demonstrated in the witness-box that he was suffering from a problem with his left little finger." (sic)

URJ EDWARDS v ALLMEN ENGINEERING PTY LTD and ANOR (Kirby P) 5

"Ts there a causal nexus between the problem and the short period of a week or thereabouts that he performed for Allmen Engineering back in October/November 1981. On the totality of the medical evidence it appears to me that it is certainly not established that there is any incapacity consequent upon that employment, nor that there is any permanent loss of efficient use of the left little finger consequent upon any such injury. In those circumstances in the claim against both employers there will be an award in favour of the respondent."

Against a background of these earlier determinations, it is unsurprising that Wallbank was dismissed from the proceeding. It is also unsurprising that Allmen and Pacific should have contended that the claims brought again before Burke CCJ by the applications of 5 October 1990 had already been determined in substance in favour of each employer.

Nevertheless, perhaps as a result of the way in which the respondents chose to defend the claim brought against them, Burke CCJ proceeded to hear evidence. He forbore from determining the claims against Allmen and Pacific upon the basis of issue estoppel. He appears to have thought that there might be some legal problems in applying such principles to determinations of the Compensation Court. Why exactly that should have been so is not disclosed by his Honour's reasons. The large power of the Compensation Court to re-open proceedings and to reconsider awards, by virtue of provisions in the applicable legislation, necessitates care in the application of the principles of estoppel to workers' compensation litigation. But these difficulties aside, there is no doubt that determinations of the Compensation Court in earlier proceedings between the same parties in respect of which there is no application for statutory reconsideration, can give rise to various forms of estoppel. See eg Somodaj v Australian Iron and Steel Ltd (1961) 61 SR (NSW) 305; (1963) 109 CLR 285, 297f; Egri and Anor v DRG Australia Ltd (1988) 19 NSWLR 600 (CA), 601, 604, 607; see also Lambidis v Commissioner of Police, Court of Appeal (NSW), unreported, 1 September 1995; [1995] NSWJB 94.

As was observed in Lambidis, a number of the earlier decisions on issue estoppel "may be... somewhat anonymous". See Caffoor and Ors v Commissioner of Income Tax, Colombo [1961] AC 584 (PC). The unyielding pressure upon courts and judicial tribunals today, the heightened appreciation of the values of efficiency and finality in litigation, the enhanced appreciation of the need to protect litigants from vexation by repeated, costly and distracting claims and the spread of judicial work to a range of courts and tribunals make it appropriate (with adjustments necessary to the terms of particular legislation) to extend estoppel principles to determinations of the Compensation Court.

Before this Court, neither Allmen nor Pacific abandoned their claims of issue estoppel. However, in respect of the matters already determined by Judges of the Compensation Court, each asserted that they were also entitled to maintain the awards in their favour upon the footing that such awards were supported on the merits of the appellant's claims in the Compensation Court.

There would appear (particularly in the case of Allmen, and in the case of Pacific to the extent of the claim in respect of the appellant's left arm) that there is much apparent justification in the defences of issue estoppel.

However, as Burke CCJ decided the appellant's claims, the subject of this appeal, on the merits of the evidence which the appellant presented to support them, and as each respondent before this Court sought to sustain the awards additionally on that footing, I will adopt the same course.

I should note that the appellant asserted, as against Pacific, that procedural defaults on the part of that company entitled him to default judgment in this Court. The Court made it plain to him that it would not determine the appeal on such a footing, but would decide it on the merits. This appeared to surprise and disappoint the appellant. In common with some laymen, he seemed to nurture the hope that the Court would award the laurels of victory upon the footing of technical infractions of the rules as to the filing of submissions etc on the part of Pacific. The idea that the Court would actually scrutinise, afresh, the merits of the claims and answers of the parties seemed as surprising to the appellant as it did, at first, to one of the respondents.

So far as the appellant's claim against Allmen is concerned, it will be recalled that he had only worked for that company for a few days before his work injury occurred. That injury was to a digit of the right hand, variously described as the "ring finger" or "the little finger". The appellant also claimed that his "left arm got crook". The mechanics of that injury were never made clear.

"As against Allmen Engineering, the applicant alleges injury to the left (sic) little finger. It seems clear that such occurred. It is equally clear that, of itself it produced no incapacity. There has been a minimal loss of use of the digit and, I gather, appropriate compensation for such has probably been paid. Even the applicant negates the proposition that the finger injury is incapacitating."

There are two difficulties with this passage. The first is the identification of the injury to the left little finger. Although it is true that, in earlier proceedings, the appellant had asserted transference of disability from the right hand to the left, the basic claim of the appellant against Allmen concerned his right hand. This was not irrelevant as the right hand was the appellant's dominant one. Before the injury the appellant was a fitter. A capacity to perform intricate, fine work would, by inference, be involved in the duties of a fitter. The mistaken reference to the left little finger is therefore potentially significant. Elsewhere in Burke CCJ's judgment under appeal there are references to abrasions and injuries to the "left ring and little fingers". This Court was invited to read these as typographical mistakes and to treat them as references to the RIGHT fingers.

Nor is it completely correct to say, as Burke CCJ did of the appellant's evidence that he "negates the proposition that the finger injury is incapacitating". The following is the only evidence which Allmen could point to as sustaining that impression:

Q. You just kept working. How come you finished up with Allmen then?

A. I finished up with Allmen on the Thursday - Wednesday or Thursday, the following Wednesday or Thursday.

A. Yes. I was getting re-bandaged twice a day or something for the days I work

• for each day I work there. I never missed any days. There was no lost time. Apparently they said I've just got to take a few weeks to heal up."

URJ EDWARDS v ALLMEN ENGINEERING PTY LTD and ANOR (Kirby P) 7

It is true that this is scarcely the picture of a significant injury, or even a serious one causing incapacity. But nowhere does the appellant actually disclaim incapacity in his testimony before Burke CCJ in the subject proceedings. It is possible that he did so in unrecorded submissions.

This fact, and the wider claim which the appellant made against Allmen in respect of the left arm as well as the "right little ring finger" took this Court, as it earlier did Burke CCJ, to the contemporaneous medical evidence. Dr JR Higginbotham, in a report of 14 May 1987, stated:

"The ring finger was normal as was the rest of the right hand and the left hand was also normal with no other swelling to the small joints... he is fit for activities not involving a lot of forceful pressure on the right little finger. I estimate him to have a loss of efficient function of the right little finger of twenty-five (25) percent as a result of this condition. It is unlikely to improve and any deterioration will be slow."

However, Dr Sikander Khan on 5 July 1990 could not see any basis for continuing incapacity. He reported:

"He remains fit to work as a maintenance fitter with no restrictions due to injuries to his right hand. It is my opinion that he has been fit to work in this capacity a few weeks after the initial incident in October 1981.... The right hand injury has healed up completely and I do not anticipate any longterm sequelae arising out of it.... The persistent symptoms in his right hand and inability to work appear to be functional and would entirely depend on Mr Edwards' desire to use his hand. There was evidence of recent manual work in both hands in the form of thickening of the palms with multiple abrasions over the tips of his fingers and thumbs which were impregnated with dirt.... On examination today he appears to have completely recovered from this minor injuries long since and your client's liability for any persistent symptoms has ceased long since. Any symptoms now present may not be attributable to these injuries.

To similar effect is the opinion of Dr GE Scarf, retained by Pacific:

"This man proved to be a very difficult historian. He is a very strange individual... a tallish, thin, strange looking and strange behavioured man. He arrived one and a half hours late for his appointment. There was no evidence of any abnormality in general behaviour.... As he presents today, there is no evidence of any physical disability in relation to the left elbow. It is not likely he suffers any residual disability as a result of lateral epicondylitis... Based on today's findings he is fit to resume work, commensurate with his slight build... He is constitutionally not built about the upper limbs for heavy work. He does not require any form of treatment. There is no evidence of permanent loss of efficiency of the left forequarter as the result of any incident he described."

Against this evidentiary background, and viewed solely on the merits of the evidence adduced before Burke CCJ, his Honour's conclusion was fully justified:

"On the evidence before me I could not be satisfied that the applicant sustained injury to his left elbow or upper limb in the course of his employment with Allmen."

So far as the right little finger was concerned, the evidence that such a relatively small injury had occurred so long ago would not appear to sustain an entitlement to weekly compensation on the footing of continuing partial incapacity. Although a mistake appears to have been made in Burke CCJ's reference to the appellant's left finger, the mistake is not significant. The appellant should at least have learned from the earlier litigation that he bore the onus of establishing his case. When pressed by this Court, he could not point to

any medical evidence that supported his claim of continuing incapacity due to work injuries with the respondents. Yet that had been put in issue by Allmen's answer in the Compensation Court. It was clearly a matter which the appellant had to prove in order to win the case. The dismissal of his claim against Allmen was therefore justified on the merits. It has not been shown to have been wrong.

Nor has the appellant demonstrated that the award for Pacific was wrong. That company, in addition to relying on the legal effect of the earlier determination by McGrath CCJ, called as a witness Mr Kurt Kiefer. He was the foreman of Pacific (then Cameron Wheeler Pty Ltd) in April 1982 when the appellant alleged he was injured there. Asked about the appellant he said:

"Q. His contract with the company, how did that come to an end?

A. Well, we weren't very happy with the man's work or his attitude towards the work, and we gave him notice and paid him a week in lieu and that was it.

Q. In respect of whilst he was there, did you see him on a daily basis?

Q. Did he make any complaint to you in relation to his back or any...?

The appellant attacked the evidence of this witness. But Burke CCJ was not impressed by the attack:

"Mr Kiefer, the foreman and supervisor of the second respondent for some twenty-seven years, gave evidence before me that he recalled the brief period of employment of the applicant and that no complaint had been made by the applicant up to the time of termination concerning any injury that he may have suffered in that employ. Mr Kiefer played the duration of employment at three to four days. The applicant suggested longer and tended to suggest that Mr Kiefer was maliciously untruthful. Ironically, it seems that the same interplay had occurred before the Chief Judge when he was determining this worker's claim against the second respondent in relation to the then alleged injury to the left arm. The latter injury is now alleged to result from injury with Allmen Engineering... The Chief Judge made a careful analysis of the inter-relations between the various allegations of injury made by the applicant against the various employers at various times and of the variety of medical board or Medical Panel Certificates and the applications therefore which were before him. In this particular claim it therefore seems unnecessary to subject that evidence to further detailed analysis."

Insofar as the claim of the appellant against Pacific was in respect of any injury to his left upper limb, that claim had also been determined adversely to the appellant by McGrath CCJ. Insofar as the appellant claimed injury to his back, it was clearly open to Burke CCJ, in the second hearing, to dismiss that claim. Certainly it was not sustained by the evidence of Mr Kiefer who, working in a small factory with a person already given to making compensation claims, might have been expected to have heard of it if any back injury had occurred. Similarly, it was not sustained by the contemporaneous medical histories detailed in Burke CCJ's reasons. No error is shown in Burke CCJ's conclusion:

"The balance of evidence adduced by the applicant tends to suggest that any back problem had its genesis in employment other than with this respondent."

Finally, so far as further injury to the legs was concerned, it was clearly open in the foregoing evidence for Burke CCJ to conclude that such claim, belatedly made, was not supported by evidence.

URJ EDWARDS v ALLMEN ENGINEERING PTY LTD and ANOR (Kirby P) 9

I now turn back to consider the actual grounds of appeal filed by the appellant.

So far as ground (1) is concerned, it is unnecessary to deal with it. It relates to the absence of issue estoppel. But as Burke CCJ decided the claims on the merits, this has no relevance to the attack on his Honour's awards.

So far as ground (2) is concerned, complaining of the suggested error of Burke CCJ in "not accepting the nature and conditions of the applicant's employment", there is no substance in this complaint. The appellant appeared to think that the incantation "nature and conditions of employment" could secure him an award. But first it was necessary for him to prove relevant injuries and then that such injuries were the cause of relevant (continuing) incapacity, as claimed. He failed in both of these obligations.

As far as ground (3) is concerned, the appellant relied on medical certificates which he tendered. But whilst such certificates might demonstrate loss of function, they did not prove either what, if any, work injury caused that loss of function, or whether such loss of function resulted in a relevant incapacity for work. At least in respect of the award by Senior Commissioner Muirhead, it is clear that the appellant was paid the statutory lump sum for the percentage loss of function. What he failed to do was to demonstrate that any such loss of function caused any degree of partial incapacity. It is here that, possibly, had the appellant's case been properly presented at trial, he might have been able to demonstrate a minor degree of partial incapacity related to such an injury to his dominant hand which could have involved some interference in his performance of fine and intricate work as a fitter. However, the appellant failed to demonstrate this fact at trial. Contrary evidence was before Burke CCJ. The history of the appellant's post injury work and multiple claims for compensation appear to contradict a continuing partial incapacity. I have scrutinised the facts carefully to avoid the risk that there might have been a proper claim on this footing which should be sent back for retrial to avoid a miscarriage of justice. But in the end, I have concluded against that course.

So far as ground (4) is concerned, it repeats reliance on the assessment of the Medical Panel in respect of the right little finger. The previous comments are repeated.

So far as ground (5) is concerned, this relates to evidence of Dr K Pooviah which scarcely featured in Burke CCJ's decision and can be ignored.

So far as ground (6) is concerned, this related to the failure to provide light employment to the appellant. Unless a relevant degree of partial incapacity was established, such failure is without legal consequence.

So far as ground (7) is concerned, the appellant complains that Burke CCJ erred in "not rejecting the incredulous (sic) evidence of the second respondent's witness". This is clearly a reference to Mr Kiefer. It was open to Burke CCJ to accept Mr Kiefer's evidence. This Court, which does not see Mr Kiefer, cannot substitute its opinion on the acceptability of that evidence. Nothing referred to by the appellant would authorise this Court to disturb his Honour's obvious impression that Mr Kiefer was an honest witness who, in the small confines of Pacific's factory, would soon have learned if the appellant had suffered an injury

• whether to his left arm, his back, or his legs. Mr Kiefer denied such injuries.

The result is that none of the attacks and criticisms that have been made of the awards of Burke CCJ, or the reasons given to support those awards, has succeeded. Minor mistakes in the recall of the evidence, and in identifying the

injured finger, fall far short of the case needed to authorise this Court, on the papers, to set aside the awards or either of them.

The appeal against the awards in favour of each respondent must therefore be dismissed. The appellant must pay the costs of the appeal.

Powell JA There are two simple reasons why this Appeal should be dismissed with costs, each of which may be stated shortly:

1. in coming ultimately to the conclusion that an Award should be made in favour of each of the Respondents, Burke CCJ determined that the Appellant's claim had not been made out in fact, and the Appellant has failed dismally in his attempt to undermine his Honour's finding in that respect;

2. in the absence of any attempt by the Appellant to have the Compensation Court reconsider, pursuant to the provisions of s36(2) of the Workers Compensation Act 1926 or of s17(4) of the Compensation Court Act 1984, the Award made in his favour by Senior Commissioner Muirheard, the rights the subject of the Application upon which that Award was made have been subsumed in the Award; and, in the absence of any application to have any of the Awards made against him reconsidered - any attempt - such as was made in these proceedings - by the Appellant to put in suit the rights sought to be agitated in the Applications which led to the making of those Awards was, and will be, barred by a defence, or plea, of issue estoppel (see, for example, Somodaj v Australian Tron and Steel Ltd!; Norcal Pty Ltd v D'Amato2; Egri v DRG Australia Ltd3; Cp Lombardo v Stuart Bros Pty Ltd*)

(First Respondent - Allmen): GJ McCready (Second Respondent- Pacific): PH Greenwood/A Ridley SOLICITORS:

(Second Respondent - Pacific): Abbott Tout Russell Kennedy

• (1960) 51 SR 365; (1963) 109 CLR 285,297-298 per Kitto, Taylor and Menzies JJ . (1988) 15 NSWLR 376,386 per McHugh JA

. (1988) 19 NSWLR 600, 604-605 per McHugh JA; cp 604 et seq per Clarke JA

. (1967) 68 SR 159, 162 per Walsh JA; 167 per Jacobs JA