Kuppers v New South Wales Fire Brigades

Kuppers v New South Wales Fire Brigades - [2005] NSWSC 193 - NSWSC 2005 case summary — Zoe

[14]

Factual Background 2 In June 2000, the Plaintiff, Robbert Weibren Kuppers, was employed by the Defendant, the New South Wales Fire Brigades, as Station Officer at Armidale Fire Station. He had been a fireman since 1973 and a station officer since December 1985. On Wednesday, 14 June 2000, the Plaintiff was involved in an incident where a pumper (a fire-fighting vehicle) rolled forward out of the fire station and was struck by a cattle truck after the Plaintiff had succeeded in stopping the pumper. The Plaintiff was inside the pumper on the passenger side putting items into the glove box as it commenced to roll out of the station. By the time he succeeded in stopping it, the pumper was on the street and was struck by the cattle truck. 3 On 16 June 2000, the Plaintiff consulted his general practitioner, Dr Watts, with respect to complaints arising from the accident on 14 June 2000. Counselling was organised for the same day and physiotherapy for the following week. On 16 June 2000, the Plaintiff consulted Dr Allen, Psychologist, for counselling. 4 On Saturday, 17 June 2000, the Plaintiff was riding a motor cycle when he lost control of the motor cycle, crossed the highway and struck an embankment or tree, thereby sustaining serious injury. The Plaintiff was not riding the motor cycle for a purpose related to his employment. 5 On 14 November 2000, the Plaintiff filed an Application for Determination by the Compensation Court of New South Wales claiming weekly compensation and hospital and medical expenses under the Workers Compensation Act 1987 ("the Act") for injuries alleged to have resulted from the incident at work on 14 June 2000. Following a hearing extending over several days, Campbell CJ, on 26 March 2003, made findings in favour of the Plaintiff and made an award of weekly compensation under s 36 of the Act and an order for payment of hospital and medical expenses under s 60 of that Act. 6 In the present proceedings before this Court, the Plaintiff sues the Defendant for damages alleging negligence on the part of the Defendant on 14 June 2000 and alleging that such negligence caused the motor cycle accident on 17 June 2000 in which the Plaintiff sustained serious injuries. There are two sets of proceedings, No. 20942 of 2001 and No. 20293 of 2003, both of which arise from the same events. I was informed at the hearing that the second set of proceedings may be explained by reference to the Motor Accidents Compensation Act 1999. In any event, nothing turns at present on the existence of two sets of proceedings before this Court. The parties agree that the same separate question arises for determination in each case. 7 In its Defence, the Defendant denied that the motor cycle accident on 17 June 2000 occurred as a consequence of injuries and ongoing disabilities arising from the accident on 14 June 2000. The issue estoppel question arises from the Amended Reply filed for the Plaintiff which states: "5. The Plaintiff asserts that as a result of the said judgment [of Campbell CJ] the Defendant is estopped from denying and is prevented from adducing evidence to contradict the following matters: (i) The Plaintiff sustained psychological injury in the course of his employment with the Defendant on 14 June 2000.

[18]

Issues Determined by Campbell CJ 14 In the proceedings before Campbell CJ in the Compensation Court, the Plaintiff sought an award under the Act. A worker who has received an injury shall receive compensation from the worker's employer in accordance with the Act: s.9(1). The term "injury", so far as it is presently relevant, is defined in s.4 of the Act: "In this Act: injury : (a) means personal injury arising out of or in the course of employment, …". 15 Section 9A of the Act provides as follows: "9A No compensation payable unless employment substantial contributing factor to injury (1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury. (2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination): (a) the time and place of the injury, (b) the nature of the work performed and the particular tasks of that work, (c) the duration of the employment, (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment, (e) the worker's state of health before the injury and the existence of any hereditary risks, (f) the worker's lifestyle and his or her activities outside the workplace. (3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following: (a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment, (b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or occupational rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury. (4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies". 16 Section 11A(1) of that Act excludes compensation for psychological injury in certain circumstances, which have no application to the present case. However, s.11A(3) of the Act contains a definition of "psychological injury" which should be noted for present purposes: "(3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system". 17 Accordingly, the claim before Campbell CJ required determination of the question whether the Plaintiff had suffered injury arising out of or in the course of employment with the Defendant (s.4 definition of "injury") with that employment being a substantial contributing factor to the injury (s.9A(1)). For this purpose, it was necessary for the Compensation Court to determine whether there was a causal link between employment and injury and the extent of that causal link: Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 at 747 (paragraph 27). It was necessary for Campbell CJ to consider the factual circumstances of the Plaintiff's case and make a number of findings for the purposes of determining whether his claim under the Act was made out. 18 The Third Amended Application for Determination before the Compensation Court contained the following particulars of claim: "4. As a result of the accident on 14 June 2000 referred to in sub-paragraph 1, the Applicant suffered a post traumatic stress condition/psychological injury which impaired his ability to ride and control the motorcycle on 17 June 2000."

[50]

36 In Kuligowski v Metrobus, above, at 14 (paragraphs 47-48), the High Court pointed to the strict requirements for the application of issue estoppel, and circumstances which may affect the operation of the relevant principles in that case: "Obviously, if the reasoning of the second review officer is sound, there are considerable difficulties in the case that the worker wishes the District Court to consider. But 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. Not all estoppels are odious: New Brunswick Railway Co v British & French Trust Corp Ltd [1939] AC 1 at 21 per Lord Maugham LC. But all must be certain. It is for that reason that the law, as exemplified in the passage from the judgment of Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271 at 276 set out above, has strict requirements for the application of issue estoppel. It might have been possible for the second review officer to have made findings which would operate as issue estoppels in relation to the District Court proceedings. But he did not, whether because the worker's 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 at common law in these particular circumstances are intractably different, or because of the informality of the proceedings before the second review officer". 37 It is noteworthy that the High Court stated that an issue estoppel may not arise, inter alia, "because the issues in proceedings under the Act and in proceedings at common law in these particular circumstances are intractably different". In the present case, I do not consider that the issues in proceedings under the Act and in proceedings at common law for damages can be characterised as "intractably different".

At a glance

Court

Decision date

Before

Source

Judgment (52 paragraphs)

Parties

Cases Cited (18)

Cited By (5)