Kassandra Laratae v Dean's P/L

The Defendant is bound by the determination of Her Honour Judge K L Bourke of the County Court of Victoria on 18 February 2014;

The Defendant is estopped from pleading that the Plaintiff has not suffered a compensable injury in relation to the Plaintiff's cervical spine;

The Defendant is estopped from pleading that the Plaintiff had no need for surgery which resulted from the neck injury in relation to which employment was a cause;

2. The Amended Notice of Defence dated 3 June 2014 to the extent responsive to the amended complaint and the question of the doctrine of estoppel as pleaded is in these terms:

1. IT ADMITS the allegations contained in paragraph 13

2. IT ADMITS the allegations contained in paragraph 14

3. IT DOES NOT ADMIT the allegations contained in paragraph 15

4. IT DENIES the allegations contained in paragraph 16

The defendant intends to adduce medical and lay evidence in support of its denial of the allegations contained in paragraph 16.

1. IT DENIES the allegations contained in paragraph 17

_The defendant intends to adduce medical and lay evidence in support of its denial of the allegations contained in paragraph 1_7.

1. No viva voce or documentary evidence was adduced before me.

2. Mr Johnstone of counsel appeared for the plaintiff and Mr Mackenzie of counsel appeared for the defendant.

3. The parties agree that the matter is appropriate to be referred to a Medical Panel for an opinion pursuant to s 45 (1) (b) of the Accident Compensation Act 1985 (the Act) and have prepared material to give effect to the same. The plaintiff disputes that question 2 is a proper question to be included to the panel. The questions formulated are:

What is the nature of the plaintiff's medical condition relevant to the injuries alleged in paragraph 4 of the amended statement of claim ("the alleged injuries"), namely:

• (c) Injury to cervical spine ("the alleged cervical spine injury");

• (d) Psychiatric/psychological injury including but not limited to Chronic Pain Syndrome, depression and anxiety?

Was employment in fact, or could it possibly have been, a significant contributing factor to the alleged cervical spine injury?

At the time of examination by the Medical Panel, does the plaintiff have:

• (b) no current work capacity (as defined by the Act)?

If yes to question 5 (b), is the plaintiff likely to continue indefinitely to have no current work capacity?

If yes to question 5 (b), does the plaintiff's incapacity for work result from or is it materially contributed to by any and if so which of the alleged injuries?

Was the provision of a nerve sheath injection for the alleged cervical spine injury:

4. The application commenced by the plaintiff in this Court is a claim for reinstatement of weekly payments of compensation however a necessary consideration for determination is the extent if any of the defendant's liability for payments and medical and like expenses for injury to the cervical spine. The plaintiff has claimed bilateral injury to the upper limbs and in addition to the cervical spine. The defendant has accepted liability for the bilateral upper limbs but disputes liability for the cervical spine. The parties have agreed that there should be a referral to the Medical Panel but are apart on asking the panel its opinion whether the plaintiff's work was a significant contributing factor of the cervical spine injury.

5. The plaintiff submitted that the nature of a question arising in the County Court and answered by it is the same question of fact that the defendant would have the medical panel opine upon by question 2, - that is, whether or not employment was a significant contributing factor. The terminology of a significant contributing factor is not unimportant in the nature of the plaintiff's cervical spine injury being a claimed aggravation. Conformably with s 82 (2C) of the Act there is no entitlement to compensation in respect of injury unless the worker's employment was a significant contributing factor to it. The plaintiff submitted, and the defendant accepted, that Her Honour must have had this in mind and been satisfied of it in order to conclude as she did that the plaintiff had satisfied the threshold required for serious injury[1]. Counsel for the defendant conceded that Her Honour found that employment was a cause of the cervical spine injury and that Her Honour considered the factors required for the employment to amount to a significant contributing factor. In response to Mr Johnstone's contention that the defendant's concession involved an acceptance that question 2 "is the same question that Her Honour decided," Mr McKenzie responded, "Yes, that is correctly stated Your Honour". The concessions and acknowledgement by Mr Mackenzie helpfully confined the factual issues to be resolved

6. Mr McKenzie nonetheless submitted that there remained the threshold question whether the doctrine of estoppel has work to perform in relation to the question of the injury to the cervical spine and he proceeded to develop his submission in a number of ways.

1. Her Honour Judge Bourke gave judgment in the County Court of Victoria on 18 February 2014.[2] The plaintiff submits that Her Honour's reasons included a finding of fact that the plaintiff's work amounted to a significant contributing factor to the cervical spine injury. The plaintiff says that by reason of this finding an issue estoppel exists and that there is no basis in law or pursuant to statute to send the question to the panel.

2. The defendant however submits that the decision of Her Honour in the County Court is not a final decision as this expression is known and understood in law. Moreover, the defendant submits that Her Honour's findings of fact, and relevantly her finding that the plaintiff's work duties were a cause of the injury, should be construed in the context of the case before her which was an application for leave to bring proceedings for damages pursuant to section 134 AB (16) (b) of the Act for injury suffered in the course of the plaintiff's employment with the first defendant during the relevant period. The defendant says therefore that there is no warrant for the application of the doctrine of issue estoppel and to conclude that question 2 is inappropriate to be sent to a medical panel for its opinion because of a settled fact.

3. For the reasons that follow, I do not accept the defendant's submission and, accordingly, and I order that the question of the plaintiff's employment and its relation to the cervical spine in the form submitted is not to be sent to a medical panel for its opinion in accordance with the Act. Set out below are my reasons for the conclusion I have reached.

1. In this Court the plaintiff has an application seeking the reinstatement of weekly payments of compensation under the Act. Many of the facts put before me in the course of the plaintiff's counsel's opening are uncontroversial and not the subject of contest by the defendant. Whilst by no means exhaustive, some relevant facts include that the plaintiff was born in May 1965. She worked as a purchasing manager with the defendant. The work was sedentary in nature. The injury relied upon is alleged to have arisen throughout the course of the plaintiff's employment with the defendant and the deemed accepted date of injury by the defendant's insurer is 7 January 2008. There is accepted injury to the right upper limb, the left upper limb but not the cervical spine. The plaintiff underwent a sheath injection in August 2010 to the cervical spine. The question is whether the defendant should be liable for that procedure and more particularly for the cervical spine injury. In June 2011 the plaintiff's entitlements by way of statutory benefit were terminated.

1. There exists extensive authority by way of guidance to courts as to the scope and application of the doctrine of estoppel[3]. Some principles are well engrained and frequently recited. Notable among the authorities is Blair v Curran[4] in which Dixon J said:

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 proceeding 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, 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 ground work 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.

In the phraseology of Lord Shaw, "a fact fundamental to the decision arrived at" in the former proceedings and "the legal quality of the fact" must be taken as finally and conclusively established (Hoystead v Federal Commissioner of Taxation[5]). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to the rights gives rise to no preclusion".

Elsewhere, in Blair v Curran Dixon J said[6]:

"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".

1. In Rogers v R[7], in the context of the distinction between res judicata and issue estoppel, Brennan J said that:

"Issue estoppel is thus concerned with the determination of issues 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".

1. Estoppel is not a rule of law or of evidence but is one of the established equitable doctrines that may be called in aid by a party to otherwise ameliorate the harsh consequences of strict compliance with the law where there is good and sufficient reason to do so. The scope of its application is broad. One aspect of the doctrine is the significant and valuable utility it serves in underpinning the due administration of justice. As Barwick C J put it in Ramsay v Pigram[8]:

"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".

1. What sets apart this proceeding is the defendant's contention that findings made by Her Honour in the County Court in the plaintiff's application to bring proceedings for damages pursuant to the Act for injury suffered by her in the course of her employment does not constitute a final determination and so create an issue estoppel. In order to appreciate the defendant's argument, an examination of common law authority together with the applicable provisions of the Act is warranted.

1. In Kuligowski v Metrobus[9] the High Court was concerned to determine if issue estoppel arose from a decision of a statutory review officer under state workers' compensation legislation such as to impede the commencement of proceedings for leave to bring common law proceedings for injuries incurred at work. The Court referred to the speech by Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2)[10] in which the following requirements were identified in order for issue estoppel to have application to a given set of circumstances. These were identified as:

"(1) that the same question has been decided; (2) that the judicial decision which is set 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 proceeding in which the estoppel is raised or their privies".

1. As I have already observed, because of the defendant's concessions at the commencement of the hearing before me, it is not contestable that the facts satisfy the first and third principles identified by Lord Guest. Rather the controversy settled on the extent if any of satisfaction of the second principle namely that there must be a final decision.

Was the decision of Her Honour Judge Bourke a final decision?

1. I doubt that it will add anything for me to recite or again rehearse the many judicial utterances as to the confluence of facts that will inform the answer to the question of whether a decision is a final decision. Rather than extract copious passages from decided authority, I suspect it is more helpful, if I distil the essential elements required.

2. A final decision is one which is not of an interlocutory character but is completely effective unless and until rescinded, altered or amended. It must be "final and conclusive on the merits" and the cause of action must be extinguished by the decision which is said to create the estoppel. Her Honour Judge Bourke's decision was published on 18 February 2014. The time allowed for an appeal has well and truly expired. Consequently Her Honour's decision will not be the subject of an appeal[11]. The defendant did not, for example, suggest that the decision was likely to be the subject of the rescission, alteration or an amendment in any material respect. Accordingly, Her Honour's decision is final. It cannot be characterised as interlocutory. Thus it satisfies the necessary tests at common law to amount to a final decision.

3. In my opinion the statement referred to earlier by Barwick CJ in Ramsay goes a very long way in making good the plaintiff's application that the question of the connection between work and injury of the cervical spine is not appropriate to be sent to a medical panel. In particular, the statement contained in the passage from Barwick CJ that it is "the issue thus determined, as distinct from the cause of action in relation to which it arose"[12] (my emphasis added) that must be identical in each case appears to be satisfied in the controversy before me.

4. Both counsel for the plaintiff and the defendant cited a number of authorities, however, none were directly on point, a matter they conceded. In particular counsel agreed and my own researchers confirm that there is no decided case marking out the extent to which a magistrate is or is not bound by findings of fact made by a judge in an application for leave to bring proceedings for damages. Given this state of affairs, Mr McKenzie directed attention to and called in aid s 134 AB (19 A) of the Act[13]. It is expressed as follows:

"Any finding made on an application for leave to bring proceedings in respect of the injury does not give rise to an issue estoppel in any proceedings for the recovery of damages brought in accordance with this section which is heard and determined on and from the commencement of section 57 (3) of the Accident Compensation Amendment Act 2010."

1. Mr McKenzie contended that it was apparent as to go without saying that the principle expressed in the provision is intended to apply in other proceedings arising under the Act. In other words, factual findings made in respect of injury, otherwise than in respect of proceedings for the recovery of damages, does not give rise to issue estoppel. In my judgement, had the legislature intended this to be the case, it would have been a simple matter for it to have expressed as much in the language of the Act. It has not done so but instead has precluded the application of the doctrine of issue estoppel to findings of fact that might otherwise be thought to be used to bind a later determination of a court (i.e. serious injury applications seeking damages.) In my respectful view, this is understandable and makes good sense so as not to use the doctrine of issue estoppel to hobble a later constituted Court in proceedings for damages in which the factual landscape relevant to the determination of damages arising from injury may alter and alter to a considerable extent over time. It is not however evident to me why the doctrine of issue estoppel may not apply in the context of the statutory benefits regime determined in the Magistrates' Court of Victoria.

2. Neither do I think it is odd that s 134AB (19 A) be confined on it language to preclude a finding made in a serious injury application giving rise to an issue estoppel in any action for the recovery of common law damages but not have like application in relation to the conduct and determination of statutory benefit claims. No use is intended to be made of Her Honour's finding of serious injury otherwise than on a factual basis as to the occurrence of work and injury to the cervical spine.

3. The defendant did not suggest that Judge Bourke for example failed to disclose a clear and sufficient path of reasoning to arrive at the conclusion of fact she did. A reading of Her Honour's detailed decision would preclude any such suggestion and, in any event, it would not be competent for me to encroach on that matter had I been invited to. Her Honour's reasons contain a clear and detailed analysis of the facts, and I note that the plaintiff submitted and it was not contested by the defendant, that it would rely on any additional facts including the relevant medical opinions such that I could not regard Her Honour as having arrived at findings of fact in regard to the injury to the plaintiff that includes the cervical spine. I can see no reason in law or principle, why it should not be thought in light of Her Honour's findings that the fact of the injury to the cervical spine is not a concluded final and binding fact.

4. A good part of Mr McKenzie's helpful submissions were directed to the proposition that a finding by a Judge in the County Court in which leave is granted to bring proceedings at common law for serious injury, is not the same question that presents itself when there arises a need to make findings of fact about the extent of that injury for the purpose of a determination of common law proceedings. I take no issue with that proposition. In my view there can be no serious contest that issue estoppel will not apply to a finding of a judge of serious injury on an application for leave to bring a claim for damages as to the effect of the injury for the purposes of damages and therefore, to this extent, will not amount to a final decision as expressed in Ramsay. This seems to be the almost inevitable conclusion derived from the decision of His Honour Judge R H Smith in Cancarevic v Cancarevic & Anor [14] and the very detailed analysis of the authorities discussed by His Honour and a conclusion therein expressed that:

"However, the fallacy in this line of reasoning is, in my opinion, the suggestion that the granting of leave has "determined" a "right". It does no such thing. The "right" is the cause of action, if there is one, in tort to recover damages for negligence. That "right" can only be determined by the judgment of the court following the trial of the proceeding. The granting of leave in no sense finally determines the rights of the parties. It is but a preliminary step along the way towards establishing those rights."

1. Therefore, I think if the question is examined from the perspective whether findings made in an application for leave can bind a court in a subsequent action for damages, then the answer is very likely to be answered in the negative and that this would be the case irrespective of express provision contained in s 134AB(19A) of the Act. However, can it be argued that the observe is true to bind a determination of weekly payments and medical and like expenses liability where the question of work and injury are elemental matters in the mix?

2. The question before this court as to the application of estoppel does not present itself for consideration with the same or similar consequences as it does from the perspective of the superior courts. For example, Brooking J in the decision of the Full Court of the Supreme Court in Petkovski v Galletti [15] in relation to the procedure for the grant of leave to commence common law proceedings then prescribed in s 93 (17) of the Act said:

"When, after a hearing lasting several days, the judge comes to decide whether to give leave under the section, he may well be in a position or virtually in a position where he could if required assess damages for the injury. If he gives leave, the whole process must then be gone through again at trial, with or without a jury."

1. I respectfully adopt the reasoning of His Honour Judge Smith in Cancarevic, who after referring to the passage by Brooking J, did not regard His Honour as considering that any issues estoppel would be established stemming from the leave application. By comparison claims for statutory benefits heard and determined in this Court are different and do not involve the threshold "gateways" required to be passed through in applications brought in the County Court. Also in turn, the rights to compensation under the workers' compensation legislation differ markedly in nature from the rights to damages for a wrongful act conferred by the common law, and the means provided for enforcing claims for workers' compensation are also very different from the common law remedies.

2. In addition to the matters mentioned, I am mindful to not extend the reach of s 134 AB (19 A) of the Act beyond the ordinary meaning conveyed by the language used by the drafter. There is nothing contained in the Minister's Second Reading Speech that gives rise to the inclusion of the provision in the Act to be accorded any intention beyond the ordinary application of the language used.

3. In consideration of the defendant's submissions I have had regard to the application of reasoning expressed by the High Court in Maurice Blackburn Cashman v Brown[16] various passages of which were relied on by the defendant. The decision of the High Court involved the extent to which the legislative imperative expressed in the Act that the opinion of a Medical Panel binds "any court, body or person_"_ gives rise to an issue estoppel and therefore precludes the availability of plea of a denial that a plaintiff has suffered injury, loss and damage. At [26] the Court said:

".....In this case, no application for leave to commence proceedings was made or was necessary. The plaintiff was deemed by operation of s 134AB (15) to have a serious injury. It is important to notice, however, that if s 134AB (19) (c) were to be construed as speaking to proceedings other than leave proceedings brought under s 134AB (16) (b), the only estoppel that could arise from the determination of an application for leave would preclude debate about whether there was a finding that the injury in question was a serious injury (citation omitted). That is, the preclusion provided by s 134AB(19)(c) would prevent the defendant in the common law proceeding from disputing whatever may have been the factual bases upon which a conclusion had been reached that the plaintiff had suffered a serious injury."

1. Counsel for the plaintiff submitted that it was no part of his argument that anything be made in particular of the grant of leave by Her Honour Judge Bourke for serious injury or of any question relating to incapacity but only that in context of a necessity for the plaintiff to obtain leave in order to open a gateway to a claim for common law damages, Her Honour made the requisite findings about the work and the cervical injury.

2. I do not accept the defendant's submission that the decision by Her Honour Judge Bourke is not a final decision within the purport of the ordinary meaning of that expression because of the existence of s 134 AB (19A) of the Act. Her Honour made an express finding of fact that it is not proper to contest.

3. It strikes me to be highly artificial to treat the clear factual finding made by Her Honour as not constituting a final decision because the found fact relied upon occurred in the course of the determination of a serious injury application. In my view the litigation before Her Honour may be classified as falling within that class of case described by Lord Diplock in Thoday v Thoday[17] . There his Lordship referred to the public policy imperatives that underpin "issue estoppel" and noted that although there are many causes of action conceivable which can only be established by proving that two or more different conditions are fulfilled and that such causes of action involve as many separate issues between parties as there are conditions to be fulfilled by a plaintiff in order to establish his cause of action, and in some cases it may be prescribed that there is a requirement common to two or more different cause of action, but that:

"If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was".

1. In this case, for the reasons I have expressed I am satisfied that the defendant is estopped from contesting the cervical injury and so question 2 is not a proper question to be sent to a Medical Panel.

2. I direct that the parties file a minute of order to the extent necessary to give effect to this decision including a revised set of questions to go the panel within 14 days. The question of any order for costs of the plaintiff's application in the proceeding the subject of this decision if not otherwise agreed upon between the parties is to be listed for mention on a date to be fixed. I also grant general liberty to apply.

[1] Dalton v Dandenong Scaffolding Hire Co Pty Ltd [2003] VSCA 183

[2] [2014] VCC 103

[3] It is wrong to treat estoppel as one body of settled principles.

[4] [1939] HCA 23; (1939) 62 C.L.R. 464 at 532

[5] [1921] HCA 56; (1921) 29 C.L.R 537

[7] [1994] HCA 42; (1994) 181 C.L.R. 251

[8] [1968] HCA 34; (1968) 118 C.L.R. 271 at 276

[9] 2004] HCA 34

[11] Although appeals may be the subject of applications for leave to appeal out of time, it was not suggested the decision was so attended. In any event the fact that an appeal lies from a decision does not render it any less final: The Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 C.L.R. 353 at 454 per Gibbs J

[13] Prior to amendment the relevant statutory provision was expressed in the guise of s 134AB (19)(c) in the following language:

"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] No 02234 of 2000 Date of Judgment 20 April 2001

[15] [1994] VicRp 32; [1994] 1 V.R. 436 at 437

[16] [2011] HCA 22

[17] [1964] P 181 at 198