ORDER Issue estoppel held to arise only on limited issues.

JUDGE1 DEBELLE J In the course of the pleadings in this action, the plaintiff averred that an issue estoppel existed as to certain questions of fact. It was ordered that the points of law involved in the plea of issue estoppel be set down for determination as a preliminary point of law. 2. The plaintiff brings a claim in this Court for damages in respect of injuries alleged to have been sustained while employed by the defendant. The plaintiff has already recovered workers' compensation in the Industrial Court in respect of these injuries. In the application in the Industrial Court, the plaintiff claimed compensation pursuant to the Workers' Compensation Act, 1971 in respect of injuries alleged to have been sustained on 22 June 1984, 20 August 1984, 16 July 1985, in or about the month of November 1985, and on 11 June 1986. The plaintiff claimed that on all of those occasions he sustained injuries to his right arm, right shoulder and neck. He claimed also that there were psychological consequences in the form of an hysterical neurosis with dissociative and conversion symptomology. It should be noted that the plaintiff claimed that the incident on 20 August 1984 aggravated an injury to his right arm which he had sustained on 22 June 1984. The defendant contested the application. In the reasons for his decision published on 2 February 1988, the Judge Russell found that the plaintiff suffered injury in the course of his employment by the respondent on 22 June 1984, 20 August 1984 and 16 July 1985. He determined that the injury was an exacerbation of a right acromio-clavicular joint arthritic change and aggravations thereto and an hysterical neurosis. I will return later to the findings made by the learned Judge. 3. In this action, the plaintiff alleges that he sustained injury on 22 June 1984 and 16 July 1985. It will be noticed that there is no claim in respect of any injury alleged to have been sustained on 20 August 1984. The plaintiff alleges that his injuries were sustained as a result of the negligence, or breach of duty, either at common law or by statute, owed by the defendant to the plaintiff. The material pleas for present purposes are contained in paragraphs 3, 4 and 5 of the statement of claim. They state:- "3. On or about the 22nd day of June 1984 and on or about the 16th of July 1985, the plaintiff sustained injuries in the course of his employment with the defendant.

Particulars of incidents giving rise to injuries (a) On the 22nd of June 1984 the plaintiff in the course of his employment was engaged in the making of wooden pallets and sustained injury. The wood from which the pallets were to be made was being cut to the appropriate size and dimension by the plaintiff. The plaintiff would then nail the pieces of timber together on a steel bench which measured approximately 8 foot in length and 4 feet in width. The bench was placed against a wall

which prevented the plaintiff from performing the said work on both sides of the bench. When the plaintiff was nailing timber on the opposite side of the bench from the side from which he had to work the plaintiff was required to stretch approximately 4 feet across the bench for that purpose. The pieces of timber were nailed together by using a pneumatic nail gun which weighed approximately six kilograms. The nail gun was connected to a compressed air supplier by an air hose. When the plaintiff nailed the timber on the side of the bench opposite to that on which he was standing he was required to lean and stretch across the bench holding the nail gun in his right arm and suspending the whole of the weight of the nail gun and the drag of the air hose with his arm outstretched from the shoulder. (b) On the 16th of July 1985 the plaintiff sustained injury to his right arm, shoulder and neck when again nailing pallets in the course of his employment in the manner referred to above. 4. The plaintiff says that he sustained his said injuries solely as a result of the negligence, breach of duty and/or breach of statutory duty owed to the plaintiff by the defendant. Particulars of defendant's negligence, breach of duty and/or breach of statutory duty (The plaintiff stated the particulars of the alleged breaches of duty) 5. By reason of the aforesaid negligence, breach of duty and/or breach of statutory duty owed by the defendant to the plaintiff the plaintiff sustained injury and consequent loss and expense. Particulars of plaintiff's injuries (The plaintiff stated the particulars of his injuries). 4. By its defence, the defendant denied the allegations in paragraphs 3, 4 and 5. It is unnecessary to repeat them. The plea was in the nature of a general traverse. In addition, the defendant alleged contributory negligence on the part of the plaintiff. 5. In his reply the plaintiff pleaded the issue estoppel in the following terms: "As to paragraph 3 of the defence the plaintiff says that the

defendant is estopped by the judgment of His Honour Judge Russell QC delivered on 2nd February 1988 in the Industrial Court wherein the plaintiff was applicant and the defendant was respondent in Action No.3270 of 1986 in the workers compensation

jurisdiction and wherein His Honour Judge Russell QC found injuries occurred to the plaintiff on the dates as alleged in

the statement of claim herein and further that such injuries incapacitated the plaintiff for work and further that the system of work referred to in the statement of claim was likely to cause injury to the plaintiff's right arm, shoulder and neck and sequalae thereto." The defendant filed a rejoinder in which it denied the issue estoppel. 6. The plaintiff relies on a conventional issue estoppel of the kind referred to in Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 and Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446. The plaintiff could not and did not assert that the principles of res judicata apply. The pleadings, however, do not with sufficient particularity define the issues which the plaintiff asserts the defendant is estopped from contesting by reason of the decision in the Industrial Court. If a party wishes to raise an estoppel it must be clear and unambiguous: Low v. Bouverie (1891) 3 Ch 82. It must be "certain to every intent": "if a thing be not directly and precisely alleged, it shall be no estoppel": Co.Lit. 352b approved by Latham CJ in Jackson v. Goldsmith (supra) at 455. To like effect are the observations of McTiernan J in Jackson v. Goldsmith at 458: "A rule applicable to a plea in estoppel is that it 'must be certain in every particular'. The meaning of the rule is that such a plea 'must meet and remove by anticipation every possible answer of the adversary'. Pleas of estoppel are subject to this rule because they 'are regarded unfavourably by the courts, as having the effect of excluding the truth', Stephen's Principles of Pleading, 7th Ed. (1866) p.293." In Azzopardi v. Bois [1968] VicRp 18; (1968) VR 183 at 185, Adam J suggests that the strict conditions which must be complied with to sustain a plea of issue estoppel are explained by the traditional dislike shown by courts to issue estoppels, which have the effect of precluding the reception of evidence relevant to the truth of the matters to be decided. Mr Heywood-Smith, who appeared for the plaintiff, sought to remedy the deficiencies of the pleadings. In the course of his argument he handed up a list of issues of which, he contended, the defendant is estopped from contesting. They are:- 1. On or about the 22nd June 1984 the plaintiff suffered in the course of his employment by the defendant, and as a consequence of adopting the system of work provided by the defendant for the use of a nail gun while making wooden pallets, an injury in the nature of a right acromio-clavicular joint arthritic change manifested as a swelling in the right arm and a burning sensation in the right arm, shoulder and neck ("the injury"). 2. On or about the 16th July 1985 as a consequence of the plaintiff performing the same duties the injury was exacerbated. 3. From the 16th July 1985 up to and including the 2nd February 1988 the plaintiff was partially incapacitated for work as a result of the injury or alternatively as a result of the injury as aggravated by an incident occurring on or about the 20th August 1984. 4. The plaintiff suffered a further injury as a consequence of the injury or the injury as aggravated by the incident occurring on or about the 20th August 1984, which further injury is in the nature of an hysterical neurosis consequent upon the development of an hysterical conversion reaction ("the further injury"). 5. The further injury incapacitated the plaintiff for work for

some time prior to and on the 2nd February 1988. 6. Between the 16th July 1985 and the 2nd February 1988 the plaintiff performed all the work fit for him to perform that was made available to the plaintiff by the defendant during that period. 7. The principles concerning the question of issue estoppel are now well settled. The rule extends not merely to courts having the same jurisdiction but to all courts of competent jurisdiction: Hoystead v. Federal Commissioner of Taxation (1926) AC 155, 167. The rule therefore applies to judgments of the Industrial Court. The rule operates to preclude parties and their privies from contending to the contrary of any point or matter of fact which, having been once distinctly put in issue between them in prior litigation, has been solemnly found against them: Outram v. Morewood [1803] EngR 498; (1803) 3 East 346, 355[1803] EngR 498; , 102 ER 630, 633; Hoystead v. Federal Commissioner of Taxation (supra). The doctrine is founded on the public policy that there should be an end to litigation. The rule was stated by Dixon J in Blair v. Curran (1939) (supra) at 531 in these terms: "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". 8. His Honour went on to analyse the rule (at 531-533): "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(1855) 4 E and B 780 at 794, 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. 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. Commissioner of Taxation (1926) AC 155). 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 rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish

or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation. The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order." 9. As Dixon J observed, it is not every fact which might have been in controversy in the prior litigation which attracts the operation of the rule. The estoppel is confined to ultimate facts, it does not extend to evidentiary facts. There can be no estoppel unless what is put forward is inconsistent with a former finding or decision. The principle is illustrated by Brewer v. Brewer [1953] HCA 19; (1953) 88 CLR 1. In that case a husband had obtained a decree for dissolution of marriage on the ground of his wife's adultery. The suit was undefended but at the hearing the wife was called as a witness. She admitted her adultery and made no allegations against her husband. Sometime after the decree absolute, the wife applied for maintenance. In an affidavit in support of her application, the wife alleged a number of facts concerning her husband's behaviour during the marriage including an allegation that he had had affairs with various women including one with whom he admitted he had had sexual relations. It was held that the wife was not precluded by an estoppel from proving the facts concerning her husband's behaviour, because the facts did not controvert any issue decided when the decree for dissolution of marriage was granted. Estoppel extended only to setting up in a subsequent action a defence which was necessarily and with complete precision decided by the previous judgment. In his reasons for judgment in Brewer v. Brewer at 14-15, Fullagar J (with whom Dixon CJ agreed) cited with approval dicta in earlier English decisions to the effect that a defendant is not precluded from setting up a defence in a second action because he did not avail himself of the opportunity of setting it up in the first action. The last observation must be read in light of the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. It might now be better expressed by saying that a defendant is not precluded from setting up a defence in a second action which he could not reasonably have been expected to have set up the first action: Heid v. Connell Investments Pty Ltd (1989) 16 NSWLR 629, 631; Chamberlain v. Deputy Commissioner of Taxation (1991) 98 ALR 617: A fortiori, a defendant is not precluded from setting up in the second action a defence upon which he could not as a matter of law succeed in the first action. Once it is concluded that issue estoppel is confined to what is 'legally indispensable to the conclusion' and that there is no estoppel as to evidentiary facts, there is nothing to prevent a party from tendering in a later proceeding in relation to a particular issue facts negatived in an earlier proceeding when they were tendered in relation to a different issue: Brewer v. Brewer at 15. 10. One means of determining what are evidentiary facts as distinct from ultimate facts is to identify the issues in the first action and determine whether they are identical with what is sought to be litigated in the second action: New Brunswick Railway Co. v. British and French Trust Corporation Ltd (1938) 4 All ER 747; Ramsay v. Pigram [1968] HCA 34; (1968) 118 CLR 271, 277. 11. When determining a claim for worker's compensation, the Industrial Court determines whether the personal injury caused to the worker arose out of or in the course of the employment. In discharging that task, the Industrial Court does not have to decide whether there is any causal connection between the injury and the performance by the employee of his duties or of something incidental to the actual performance of his duties. A worker is entitled to compensation if no more is shown than that the personal injury arose while he was doing something that was part of or incidental to his employment: Kavanagh v. The Commonwealth [1960] HCA 25; (1960) 103 CLR 547. In other words, the ultimate issue for the Industrial Court to determine is limited to the question, whether the personal injury was suffered by the worker while he was doing something that was part of or incidental to his employment. To adopt the terminology in Dixon J in Blair v. Curran, findings as to facts made by the Industrial Court as to how the plaintiff's injury arose in the workplace are not part of what is 'legally indispensable to the conclusion' of the Industrial Court that the injury arose out of or in the course of the employment of the worker: they are not part of the ultimate issue. Furthermore, the Industrial Court is not required to determine whether the employer was negligent or was acting in breach of some common law or statutory duty. Nor is the Industrial Court required to determine whether the worker was negligent and whether his negligence contributed to the injury being caused: Henderson v. Commissioner of Railways (WA) [1937] HCA 67; (1937) 58 CLR 281, 295 and Harris v. Associated Portland Cement Manufacturers Ltd (1939) AC 71, 76. 12. When deciding whether the plaintiff suffered an injury which arose out of or in the course of his employment, the Industrial Court might enquire into and determine how and when the injury occurred. It might also enquire into the facts concerning the nature of the work done by the plaintiff and the manner in which he sustained the injury. But such an enquiry is an enquiry into what Dixon J classified as evidentiary facts because the determination of the ultimate fact, namely, whether the injury arose out of or in the course of the employment, does not require a decision as to whether there was any causal connection between the performance by the worker of his duties or anything incidental to the performance of his duties. 13. There are, therefore, very material differences between the issue to be litigated in this common law action where an unsafe system of work is alleged and the issues which were adjudicated upon in the Industrial Court. 14. Miss Nelson QC, who appeared for the defendant, contended that because the application in the Industrial Court and the action in this Court are concerned with two entirely different matters it was not possible for an issue estoppel to arise. She contended that the word "injury" is defined in the Act in such a way that it extends beyond what the common law would regard as an injury. She contended that the question is whether a worker who is incapacitated for work can depart from common law notions, citing as an example s.67 of the Workers' Compensation Act which in the circumstances there described deems a partial incapacity for work to be a total incapacity for work. However, general considerations of this kind do not assist in the determination of whether the judgment in the Industrial Court creates an issue estoppel in this Court. As Fullagar J has observed, if 'A' sues 'B' to judgment and in subsequent proceedings between them a plea of issue estoppel is raised, the plea may succeed although the causes of action in the two cases are entirely different. The question will be whether an issue of fact or law which is raised in the later proceedings was an issue of fact or law which was also raised in the earlier proceedings and therein determined: Jackson v. Goldsmith at 467. It will, of course, be necessary, when determining whether an issue estoppel arises, to have regard to the fact that particular words or concepts might be invested with a statutory definition which extends the ordinary meaning of those words and might cause them to have a different meaning or application in workers' compensation proceedings than in a common law action. In addition to Miss Nelson's examples, one might refer to what s.9(2) of the Workers' Compensation Act deems to arise out of or in the course of the employment of a worker. Consideration will be given to those definitions for the purpose of determining what are the ultimate issues. However, there is no reason why in principle the questions of issue estoppel should not arise both in common law actions which are subsequent to workers' compensation proceedings and vice versa: see O'Donel v. Commissioner for Road Transport and Tramways (NSW) [1938] HCA 15; (1938) 59 CLR 744; Lombardo v. Stuart Bros Pty Ltd (1967) 68 SR(NSW) 159; Somodaj v. Australian Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285; Meskenas v. British Paints (Australia) Pty Ltd (1964-5) NSWR 1640; Tringali v. Stewardson Stubbs and Collett Ltd (1966) 66 SR (NSW) 335; Workers' Compensation Commission of New South Wales v. Sankey (1981) 2 NSWLR 586; El-Edelbi v. Mauri Bros and Thomson (Aust) Pty Ltd (1983) 57 ALJ 639; Egri v. DRG Australia Ltd (1988) 19 NSWLR 600. The extent to which the decision in the Industrial Court may create an issue estoppel will vary from case to case and in some cases the issues capable of precluding evidence in later proceedings may be very limited: see, for example, Egri v. DRG Australia Ltd (supra) at 609. 15. Once regard is had to the established principles, the consequence is that, in the particular circumstances of this action, the issues which might be the subject of an issue estoppel are few. I turn to deal with each of the issues which Mr Heywood-Smith contends the defendant is estopped from contesting in this action. 16. For the purpose of determining these questions, the parties agreed that I was at liberty to refer to documents in the Industrial Court file, namely, the application for compensation, the answer to the claim filed by the defendant, the reasons for judgment, and the order for compensation. The parties correctly understood the legal position that a court is at liberty at their record for the purpose of ascertaining what has been determined in legal proceedings and for the purpose of determining what might be the subject of an issue estoppel: O'Donel v. Commissioner for Road Transport and Railways (NSW) [1938] HCA 15; (1938) 59 CLR 744, 757; Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446, 467; Somadaj v. Australian Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285, 299; Workers' Compensation Commission of New South Wales v. Sankey (1981) 2 NSWLR 586, 591; Egri v. DRG Australia Ltd (1988) 19 NSWLR 600, 607. 17. Paragraphs 1 and 2 of Mr Heywood-Smith's list of the facts which the plaintiff alleges that the defendant is estopped from contesting is a summary which should be analysed to ascertain each of the separate facts. Those separate facts are: (a) that on 22 June 1984 in the course of his employment by the defendant the plaintiff suffered an injury (b) the injury was a consequence of adopting a system of work provided by the defendant for the use of a nail gun while making wooden pallets (c) that the nature of the injury was a right acromio-clavicular joint arthritic change manifested as a swelling in the right arm and a burning sensation in the right arm, shoulder and neck ("the injury") (d) that on or about 16 July 1985 in the course of his employment by the defendant, the plaintiff suffered an injury (e) that the injury was a consequence of performing the same duties as those referred to be paragraph (b) hereof (f) the nature of injury was an exacerbation of the injury

suffered on 22 June 1984. In his reasons for judgment, Judge Russell made the following findings of fact: "2 On 22 June 1984 the applicant, in the course of his employment, was engaged in the making of wooden pallets. The wood of which the pallets were to be made was cut to size by the applicant and he then nailed the pieces of timber together on a steel bench which measured eight feet long and four feet wide. The bench was placed up against a wall which prevented the applicant from performing his work from both sides of the bench and when he nailed the timber on the opposite side of the bench from the side from which he had to work, he had to stretch approximately four feet across the bench for that purpose. 3. The pieces of timber were nailed by using a pneumatic nail gun, which weighed six kilograms. The nail gun was connected to a compressed air supply by an air hose. Thus, when the applicant nailed the timber on the side of the bench opposite to that on which he was standing, he had to lean and stretch across the bench holding the nail gun in his right hand and suspending the whole of the weight of the nail gun and the drag of the air hose with his arm outstretched from the shoulder. 4. Although the applicant had done this work before 22 June 1984, he had not previously experienced any pain. However, on that occasion, he began to experience pain: it was a burning pain and he noticed that his arm was becoming swollen. ... 8. On 20 August 1984, having operated a forklift machine for the purpose of moving material in the respondent's workshop, the applicant stepped down from the machine somewhat awkwardly and, as he did so, he experienced pain in his neck. ... 18. Upon those findings of fact and upon the evidence as a whole I find, on the balance of probability:- a) As a result of the incident referred to in paragraphs 2,

3 and 4 of the above findings of fact a swelling was caused to the applicant's right arm and he experienced a burning sensation in his right arm, shoulder and neck in the course of his employment. b) It is likely that the pain and swelling referred to in paragraph (a) were caused by a right acrimio-clavicular joint arthritic change, which was exacerbated by the incident referred to in paragraph (a). c) As a result of the incident referred to in paragraph 8 of the above findings of fact the applicant's condition referred to in paragraph (b) was aggravated. d) As a result of the incident referred to in paragraph 11 of the above findings of fact, the applicant's condition referred to in paragraph (b) was exacerbated. ... e) From 16 July 1985 to the present the applicant was and remains partially incapacitated for work as a result of the injuries referred to in paragraphs (a), (b), (c) and (d). f) In addition to the above mentioned injuries, a further injury has been caused to the applicant as a result of those injuries, namely an hysterical neurosis which results in his having developed an unconscious conversion reaction which has the effect of perpetuating the pain in his right arm, shoulder and neck when his mind is directed to his work situation, thus incapacitating him for work. It was not necessary for his decision that Judge Russell should find how the injury was caused: it was sufficient for him to determine that the injury arose out of or in the course of the employment of the plaintiff by the defendant. The pleadings in the Industrial Court disclose that the defendant put in issue both the question whether the plaintiff had suffered injury on the occasions alleged and other questions going to the extent of the plaintiff's incapacity for work. It is not clear from the reasons of the learned Judge if the question whether the plaintiff's injuries were caused by the system of work remained an issue. It appears from Judge Russell's summary of what he called the three primary issues, upon which the resolution of the case depended, that the real issue at the trial in the Industrial Court was the extent of the injuries sustained, not how the injury was sustained. Further, given that the plaintiff had to demonstrate only that the injury occurred in the course of his employment, there was, in a sense, little point for the defendant to engage in any contest as to whether the injury was caused by the method of work engaged in the performance of his duties. The question whether there is an issue estoppel will turn not on the evidentiary facts which led to the judge deciding in the plaintiff's favour, but on the ultimate facts, that is to say, the matters legally indispensable to the conclusion reached, "the essential foundational groundwork of the judgment, decree or order": Blair v. Curran at 533; Brewer v. Brewer at 15; Queensland Trustees Ltd v. Commissioner of Stamp Duties (Q) [1956] HCA 75; (1956) 96 CLR 131, 151. Thus, although the learned Judge makes certain findings as to what, on 22 June 1984, was the cause of the injuries to the plaintiff, those findings were not legally indispensable to the conclusion and the defendant is not estopped from contesting the manner in which the injury was caused and whether the injury was a consequence of adopting the system of work provided by the defendant. 19. The learned Judge did, however, have to determine whether the plaintiff suffered an injury on 22 June 1984 and the nature of the injury suffered. For the purpose of determining whether a partial incapacity for work resulted from the injury in accordance with s.51 of the Workers' Compensation Act, it was necessary for the learned Judge to determine the nature of the injury and the consequences of that injury. The determination of the nature of the injury is a necessary first step in an enquiry as to the consequences of that injury. The determination of the nature of the injury was therefore a matter legally indispensable to the conclusions of the learned judge. I do not think that there is any aspect of the statutory definition of injury which extends in the circumstances of this case beyond what the common law would regard as an injury. The defendant is therefore estopped from denying the fact that an injury was sustained on 22 June 1984 and the nature of that injury. 20. I turn to the question whether the defendant is estopped from contesting the facts set out in paragraphs 3, 4, 5 and 6 of Mr Heywood-Smith's list. In the workers' compensation proceedings, the plaintiff relied in part on an injury sustained on 20 August 1984. Judge Russell found that an injury was sustained on 20 August 1984 and that it contributed to the plaintiff's incapacity for work: see paragraph 8 of the findings of fact made by Judge Russell and para.(c) of his conclusions. In his conclusions, Judge Russell also dealt with the psychological injury alleged to have been suffered by the plaintiff. His Honour concluded that the hysterical neurosis was a consequence of the injuries sustained on the three occasions, namely, 22 June 1984, 20 August 1984 and 16 July 1985: see para.(f) of his conclusions. He also found that the hysterical neurosis was an injury which in part incapacitated the plaintiff for work. The learned Judge does not attempt to determine the extent to which each of the injuries sustained on those three separate occasions might have caused the neurosis, nor was he required to do so. In the common law action, the plaintiff does not rely on the injury sustained on 20 August 1984. Mr Heywood-Smith properly conceded that the defendant would be at liberty to adduce evidence to seek to persuade this Court that the incident on 20 August 1984 might have aggravated the injury sustained on 22 June 1984 and might be the principal cause of the hysterical neurosis. Mr Heywood-Smith conceded also that, since the learned Judge did not find when the hysterical neurosis had commenced, the the defendant could not be estopped from leading evidence for the purpose of seeking to establish the cause and the commencement date of the hysterical neurosis. Any enquiry as to the nature and extent of the incapacity which results from the injury suffered on 22 June 1984 must have regard to the incident on 20 August 1984. Further, when examining the nature and extent of the injury suffered on 16 July 1985 and the extent to which that injury might have caused incapacity for work, it will be necessary to enquire as to the extent to which the injury suffered on 20 August 1984 might have exacerbated the injury sustained on 22 June 1984. 21. The finding that the injury on 20 August 1984 is one of the causes of the plaintiff's incapacity for work and one of the causes of the hysterical neurosis has the necessary consequence of limiting the issues which the plaintiff says the defendant is estopped from contesting. The extent to which the incident on 20 August 1984 caused the plaintiff's incapacity for work is not an issue into which Judge Russell had to enquire. The learned judge did not, therefore, quantify the extent to which each of the three injuries contributed to the incapacity nor the extent to which they contributed to the hysterical neurosis. The questions which the learned Judge had to determine were materially different from those which this Court will have to decide. The defendant is therefore not estopped from contesting the issues identified in paragraphs 3, 4 and 5 of Mr Heywood-Smith's list. 22. It might be added that the very manner in which paragraphs 3,4 and 5 are expressed points to the conclusion that there is no issue estoppel arising out of the findings of Judge Russell. Paragraph 3 is expressed in terms which do not satisfy the criteria required for the pleading for the issue estoppel: see the observations of Latham CJ and McTiernan J in Jackson v. Goldsmith at 455 and 458 to which reference has already been made. Paragraph 4 is not fairly based on the findings expressed in para.(f) of the reasons of the learned Judge, given that the learned Judge concluded that the hysterical neurosis was the result of the injury sustained on 22 June 1984, 20 August 1984 and 16 July 1985. Paragraph 5 begs the question as to when the hysterical neurosis commenced and the cause of that hysterical neurosis. For all of these further reasons, the defendant is not estopped from contesting the issues referred to in those paragraphs. 23. Paragraph 6 in Mr Heywood-Smith's list asserts that the defendant is estopped from denying that between 16 June 1985 and 2 February 1988 (the date of the learned Judge's determination) the plaintiff performed all the work fit for him to perform that was made available to him by the defendant during that period. When determining the extent of the plaintiff's incapacity for work it was necessary for Judge Russell to determine whether the plaintiff could perform the work made available to him by the defendant. Although Judge Russell made those findings of fact, they were made as part of his enquiry as to the extent of the plaintiff's incapacity for work. Those findings do not constitute a determination of the ultimate fact. The ultimate fact was whether the plaintiff was incapacitated for work and the extent of the incapacity. The findings are part of the evidentiary facts leading to the decision as to incapacity. The conclusion that they are evidentiary facts is reinforced by the fact that the learned Judge did not have to determine the extent to which each of the three injuries suffered by the plaintiff incapacitated him for work. No issue estoppel therefore arises in respect of the issue of fact noted in para.6. 24. For these reasons, the facts the subject of an issue estoppel are not as extensive as pleaded in the plaintiff's reply. An issue estoppel arises only in respect of the following issues of fact: 1. That on 22 June 1984 in the course of his employment by the defendant the plaintiff suffered an injury. 2. The injury was a pain in the nature of a burning sensation in the plaintiff's right arm, shoulder and neck, with his right arm becoming swollen. 3. On 16 July 1985 in the course of his employment by the defendant the plaintiff suffered a further injury which exacerbated the injury suffered on 22 June 1984.