Kuppers v New South Wales Fire Brigades

Supreme Court Rules Pt 31 r 2 LEGISLATION CITED : Workers Compensation Act 1987

Egri v DRG Australia Ltd (1988) 19 NSWLR 600 R v Humphrys (1977) AC 1 Jackson v Goldsmith (1950) 81 CLR 446 Rogers v The Queen (1994) 181 CLR 251 Ord v Ord (1923) 2 KB 432 Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 Murphy v Abi-Saab (1995) 37 NSWLR 280 Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 Kuligowski v Metrobus (2004) 208 ALR 1, [2004] HCA 34 Ramsay v Pigram (1968) 118 CLR 271 CASES CITED : Somadaj v Australian Iron & Steel Limited (1963) 109 CLR 285 Beecham (Australia) Pty Ltd v Periera [2001] NSWCA 278 Blair v Curran (1939) 62 CLR 464 Sutherland Shire Council v Baltica General Insurance Company Limited (1996) 39 NSWLR 87 March v E & MH Stramare Pty Limited (1991) 171 CLR 506 Bennett v Minister for Community Welfare (1992) 176 CLR 408 Commonwealth of Australia v McLean (1996) 41 NSWLR 389 National & General Insurance Company Limited v South British Insurance Company Limited and Ors (1982) 149 CLR 327 Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed, 1996

Robbert Weibren Kuppers (Plaintiff) PARTIES : New South Wales Fire Brigades (Defendant)

FILE NUMBER(S) : SC 20942 of 2001; 20293 of 2003

Mr M A Elkaim SC, Mr R Harrington (Plaintiff) COUNSEL : Mr A C Bridge SC (Defendant)

Steve Masselos & Co (Plaintiff) SOLICITORS : Hicksons (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CIVIL LIST

20942 of 2001 and 20293 of 2003 Robbert Weibren Kuppers v New South Wales Fire Brigades

JUDGMENT 1 JOHNSON J: Pursuant to an order made by Sperling J on 28 July 2004 under Pt 31 r 2 of the Supreme Court Rules, a separate question arises for decision before any trial in these proceedings. That question, which is identical in both proceedings, seeks determination of the question whether the Defendant is prevented from disputing certain issues in the proceedings by operation of the principles of issue estoppel.

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.

(ii) As a result of the said injury, the Plaintiff suffered further injury including incomplete quadriplegia on 17 June 2000.

(iii) As a result of the said injury of 14 June 2000, the Plaintiff was totally incapacitated for work from 15 June 2000 to 26 March 2003." 8 Before me, Mr Elkaim SC, who appears with Mr Harrington for the Plaintiff, sought determination of the issues raised in paragraph 5(i) and (ii) of the Amended Reply only. He accepted that the matter referred to in paragraph 5(iii) arose from an admission made by the Defendant rather than a finding made by Campbell CJ. Mr Bridge SC, who appears for the Defendant, agreed that the questions to be determined were those contained in paragraph 5(i) and (ii) of the Amended Reply only. 9 The parties agreed that the following question ought be posed for determination by me: "Whether the judgment of Campbell CJ given on 26 March 2003 in Robbert Weibren Kuppers v NSW Fire Brigades (Matter No. 55404 of 2000), in the Compensation Court of New South Wales, operates as an issue estoppel in these proceedings so as to estop the Defendant, by reasons of the findings of Campbell CJ, from adducing evidence, asking questions of any witnesses, or making any submissions contrary to the decision determined by Campbell CJ and the Compensation Court, namely: (a) That as a consequence of psychological injury sustained by the Plaintiff in the course of his employment with the Defendant on 14 June 2000, the Plaintiff suffered further injury on 17 June 2000; (b) The said further injury on 17 June 2000 included incomplete quadriplegia".

The Evidence 10 For the purpose of determination of the separate question, the Plaintiff tendered a series of documents arising from the proceedings before the Compensation Court. The principal documents in evidence were the applications and answers filed in the Compensation Court and the judgment of Campbell CJ of 26 March 2003. 11 The Plaintiff tendered portions of the transcript of evidence before Campbell CJ. Mr Bridge SC objected to the tender of the transcript. It was received subject to objection. 12 It is clear that a court, in determining whether an issue estoppel has been made out is entitled to look at the record, including the reasons for judgment, of the court whose determinations in the first proceedings are said to create the estoppel in order to see what was actually decided: Egri v DRG Australia Ltd (1988) 19 NSWLR 600 at 607F. In R v Humphrys (1977) AC 1 at 41, Lord Hailsham observed, in this context, that "the court will inquire into realities, and not mere technicalities". 13 A court, in ascertaining whether a finding has been made on which an estoppel is raised, is entitled to look not only at the record, but also at any material that shows what issues were raised and decided: Jackson v Goldsmith (1950) 81 CLR 446 at 467; Rogers v The Queen (1994) 181 CLR 251 at 263. It is permissible to look at the evidence in the first proceedings to show what issues were decided: Ord v Ord (1923) 2 KB 432 at 442; Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 at 965; Murphy v Abi-Saab (1995) 37 NSWLR 280 at 288; Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, 3rd ed, 1996, paragraph 204. Accordingly, it is permissible to consider the transcript of the first proceedings, together with the other materials tendered, to show what issues were decided. As it transpired, it was not necessary to examine the transcript to determine what issues were decided by the Compensation Court.

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."

In its Amended Answer before the Compensation Court, the Defendant denied any liability to pay the Plaintiff compensation upon grounds which included the following: "1.2. That the applicant did not suffer as a result of any accident on 14 June 2000, any physical injury and post traumatic stress condition and/or psychological injury which impaired his ability to ride and control a motorcycle on 17 June 2000."

Accordingly, the question as to whether any causal nexus existed between any psychological injury sustained on 14 June 2000 and the accident on 17 June 2000 was raised squarely for determination in the Compensation Court. 19 Before turning to the arguments advanced by the parties in the present hearing, it is helpful to recite pertinent extracts from the judgment of Campbell CJ delivered on 26 March 2003. The following portions of the judgment relate to his Honour's findings concerning the causal nexus between psychological injury sustained by the Plaintiff at work on 14 June 2000 and the motor cycle accident on 17 June 2000 in which he sustained serious physical injuries. His Honour's findings included the following (the emphasis is mine): "3. The applicant, the Station Officer at Armidale Fire Station was involved on 14 June 2000 in an incident where a pumper rolled forward out of the fire station and was struck by a cattle truck after the applicant had succeeded in stopping the pumper.

On 17 June 2000 the applicant was riding a motor cycle when he lost control of the motor cycle, crossed the highway and struck an embankment, or, possibly, a tree.

Following that occurrence the applicant suffered compression of the spinal cord at the C3/4 level and underwent an anterior cervical decompression and fusion at that level. He has been left with partial quadriplegia. It is properly conceded that he is and has been at all material times totally incapacitated for work.

It was the applicant's contention that the second incident was caused by the effect upon him of the injuries suffered in the first incident. As it was not in issue that the first incident was an employment injury entitling him to relevant benefits under the Workers Compensation Acts it followed that those benefits extended to the effects of the second incident if the causal link contended for could be made out . (Ystradown Colliery Company Ltd v Griffiths (1909) 2KB 533).

As initially pleaded the causal link was based upon physical damage to the applicant, particularly to the head and neck, in the first incident and also upon his long employment as a fireman involving activities placing strain upon the neck including the wearing of a heavy helmet.

For reasons which I gave, I permitted, during the hearing of the case, amendment of the Application for Determination to rely upon psychological injury as the relevant causal link .

Following the amendment evidence was given by a psychologist who had treated the applicant between the two incidents. As I shall show that evidence supported the causal link relied upon . Also following the amendment the applicant was examined for his solicitors by a psychiatrist whose report supported the link.

Further, following the amendment the applicant was examined by a psychiatrist for the respondent. No evidence was presented as to the opinion of that psychiatrist and no satisfactory explanation proffered for the absence of that evidence.

After a consideration of all the evidence in the case and the addresses of counsel I have concluded that more probably than not the applicant suffered psychological injury as a result of the first incident and that that psychological injury was the cause (a substantial contributing factor) to the occurrence of the second incident . I should say why I have come to that conclusion. … [His Honour then considered the evidence in detail] .

60. It is of course possible that, as Mr Barter [for the respondent] pressed upon me, the applicant simply fell off his motor bike without any causal relationship to the psychological condition from which I accept that he was suffering. Having regard to all the evidence including the applicant's motor cycle riding experience, the conditions at the time and the way the event occurred described by Mr Love, I think the probability to be that the accident occurred as a result of that condition . …

66. On the view I have taken it is unnecessary for me to go to the detail of the suggested physical links between the two incidents which I consider to be possible but less probable than that which I have adopted. The contention is not by any means without support. Dr Watt and more importantly Dr Stenning of the treating doctors support such a link, as does Dr Bleasel and in a somewhat different form, Dr Ellis. On the other hand Dr Rushworth and for Dr Lowy are of a contrary view. To my mind a factor which considerably lessens the likelihood of this link, although it does not exclude it, is the findings of Dr Watt on her first examination. …

69. The conclusions I have expressed above entitles the applicant to an award . Mr Harrington [for the applicant] has put as an alternative the approach that there is a greater probability that the second accident was caused by the first, whether the link be psychological or physical, than that it was caused by the applicant losing control of his motor cycle for reasons and in a way unconnected with the earlier incident. That is a valid way to put the matter and I think that it is probably correct. However having regard to the more specific approach which has, on the evidence, been accepted by me it is unnecessary to say more as to the broader proposition .

70. My findings may be summarised as follows: (a) The applicant suffered psychological injury on 14 June 2000 to which injury his employment with the respondent was a substantial contributing factor .

(b) As a result of the said injury the applicant suffered further injuries including incomplete quadriplegia on 17 June 2000 .

(c) As a result of the injury on 14 June 2000 the applicant has been totally incapacitated for work since 15 June 2000.

(d) The current weekly wage rate at all material times was $1,029.49 per week.

71. I make an award for the applicant under s 36 at the rate of $1,029.49 per week from 15 June 2000 to 15 October 2000 and at a rate of $281.60 per week, as adjusted, from 16 October 2000 to date and continuing.

The Elements of Issue Estoppel 20 In Kuligowski v Metrobus (2004) 208 ALR 1 at 7; [2004] HCA 34 at paragraph 21, the High Court of Australia, applying Carl Zeiss Stiftung, above, at 935, indicated that, for the doctrine of issue estoppel to apply in a second set of proceedings, the requirements were that in the earlier proceedings:

(b) the judicial decision which is said to create the estoppel was final; and

(c) 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. 21 In the present case, there is no dispute that requirements (b) and (c) have been established. The determination of the present question involves consideration of requirement (a), namely whether the same question has been decided. 22 The onus lies upon the Plaintiff, as the party seeking to rely upon an estoppel, to establish this requirement: Spencer Bower, Turner and Handley, The Doctrine of Res Judicata, above, paragraph 98.

Same Question? 23 In Ramsay v Pigram (1968) 118 CLR 271 at 276, Barwick CJ encapsulated what was involved in answering that question by saying: "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."

24 In Kuligowski v Metrobus, above, at 12 (paragraph 40), in a unanimous decision, the High Court applied this statement by Barwick CJ in Ramsay v Pigram. 25 It is well settled that the findings of the Compensation Court are capable of sustaining an issue estoppel for the purposes of subsequent proceedings for common law damages in negligence: Somadaj v Australian Iron & Steel Limited (1963) 109 CLR 285; Egri v DRG Australia Limited, above; Kuligowski v Metrobus, above. Although there is a difference between a claim for compensation and a claim for common law damages, issues sometimes overlap so that an estoppel might arise: Beecham (Australia) Pty Ltd v Periera [2001] NSWCA 278 at paragraph 13. The question to be determined is whether an issue estoppel can be established in the circumstances of the case.

26 In Blair v Curran (1939) 62 CLR 464 at 532-533, Dixon J said that what is precluded by issue estoppel is what is legally indispensable to the conclusion. In the case of matters of fact, the issue estoppel is confined to the ultimate facts which form the ingredients in the cause of action - facts fundamental to the decision. In Murphy v Abi-Saab, above, Gleeson CJ (Kirby P and Rolfe AJA agreeing), said at 288E-F: "The difficulty is to distinguish between decisions of fact or law fundamental or cardinal to the judgment and other decisions. One thing, however, is clear. Only a decision about a matter which it was necessary to decide can create an issue estoppel. It is, therefore, essential to approach reasons for judgment which are said to create an estoppel with an accurate understanding of what the author of the reasons was required to decide. A practical test of whether a decision is fundamental is to ask whether it is possible to appeal against the finding: Spencer Bower and Turner, the Doctrine of Res Judicata, 2nd ed (1969) at 182; Talyancich v Index Developments Limited (1992) 3 NZLR 28".

Arguments of the Parties 27 Mr Elkaim SC submits that Campbell CJ made a factual finding that it was more probable than not that the Plaintiff suffered psychological injury as a result of the first incident (on 14 June 2000) and that that psychological injury was the cause of the second incident (on 17 June 2000). The findings of Campbell CJ, which were summarised in paragraph 70(a) and (b) of the judgment, included:

(a) a finding that psychological injury arose out of or in the course of employment;

(b) a finding that the employment was a substantial contributing factor to that injury;

(c) a finding that the psychological injury caused the motor cycle accident on 17 June 2000; and

(d) a finding that the Plaintiff suffered further injuries, including incomplete quadriplegia, as a result of that accident. 28 Mr Elkaim SC submits that his Honour has applied, as an essential or fundamental part of his findings, the simple causation test which is to be applied in both common law and workers' compensation claims. Although his Honour's ultimate findings were in terms of the statutory formula in the Act, his Honour's factual findings included straight forward conclusions with respect to causation of the type which would arise for determination in the common law claim. 29 Mr Elkaim SC relies upon Sutherland Shire Council v Baltica General Insurance Company Limited (1996) 39 NSWLR 87 at 94, 96-98 in support of the submission that the concept of causation at common law as considered in March v E & MH Stramare Pty Limited (1991) 171 CLR 506 involving the application of "commonsense", has equal application to issues of causation arising under the Act. In substance, Mr Elkaim SC submits that Campbell CJ's findings of causation along the way to a finding of a "substantial contributing factor" under s.9A of the Act constitute a determination of the same question as arises in common law proceedings so as to attract the principles of issue estoppel. 30 Mr Bridge SC, for the Defendant, emphasises that the statutory test in ss.9 and 9A of the Act involves different elements to the common law test of causation in March v Stramare, above and Bennett v Minister for Community Welfare (1992) 176 CLR 408. The common law test of causation was described by Handley and Beazley JJA in Commonwealth of Australia v McLean (1996) 41 NSWLR 389 at 410 in the following way:

"Causation is a question of fact, to be resolved as a matter of commonsense. The 'but for' test has an important negative role but is not a comprehensive positive test, and value judgments and policy considerations are also relevant: see Bennett (at 412-413, 418-419 and 428) and Medlin v State Government Insurance Commission (1995) 182 CLR 1." 31 Mr Bridge SC submits that the issue is not whether his Honour went about dealing with the question of causation in the compensation claim in exactly the same way as he would have at common law. Rather, he submits, the issue is whether the Compensation Court in determining a claim under the Act, is required to inquire into the same issue as would a judge in common law proceedings. Mr Bridge SC points to the provisions in ss.9A and 11A and submits that the task to be performed by the Compensation Court is quite different from the task to be performed by a court hearing a common law claim for damages for negligence. He draws attention to the obiter comments of Deane J in National & General Insurance Company Limited v South British Insurance Company Limited and Ors (1982) 149 CLR 327 at 336 where his Honour appears to have left open the question whether the common law principles of causation are applicable to determine whether it can properly be said, for the purposes of the Workers Compensation Act 1926, that a partial incapacity results from a specified injury. Mr Bridge SC submits that Sutherland Shire Council v Baltica, above, is confined to apportionment under the Act and ought not be applied generally to claims under the legislation. 32 Accordingly, Mr Bridge SC contends that the principles of issue estoppel have no application in this case because, in his submission, the same question does not require determination in each set of proceedings.

Decision 33 In my view, the Plaintiff's submissions are correct and an issue estoppel does arise in this case. 34 Applying the test in Ramsay v Pigram, above, at 276, although the causes of action in the two sets of proceedings are different, certain issues in the first proceeding (the four findings as to causal links referred to in paragraph 27 of this judgment) were necessarily and directly decided by Campbell CJ and identical issues will arise in the second proceedings. 35 For the purpose of determining the Plaintiff's claim under the Act, it was necessary for Campbell CJ to determine whether he had established a causal link between his employment and the relevant injury. This was a necessary finding of fact to be made for the purpose of determining whether the claim under s.9A of the Act had been established. A finding as to causation is an ingredient in the Plaintiff's claim under s.9A: Mercer v ANZ Banking Group Limited, above, at 747. It has been said that a finding of causation in the context of a compensation claim involves "a commonsense evaluation of the causal chain": Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 at 463-4. The findings of Campbell CJ as to causation were fundamental or cardinal to the judgment to be made by the Compensation Court. Applying the practical test proposed by Gleeson CJ in Murphy v Abi-Saab, above, it would have been possible to appeal against the findings of Campbell CJ that the Plaintiff suffered psychological injury as a result of the first incident and that that psychological injury was the cause of the second incident.

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".

38 I am satisfied that the Plaintiff has established that the principles of issue estoppel have application to this case. The question posed for determination pursuant to Part 31 r 2 of the Rules is answered in the affirmative. 39 On the application of both parties, I reserve the question of costs. I grant the parties liberty to apply on the question of costs on two days' notice. **********

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