O'Donel v Commissioner for Road Transport and Tramways (NSW) [1938] HCA 15

O'Donel v Commissioner for Road Transport and Tramways (NSW) [1938] HCA 15 - HCA 1938 case summary — Zoe

[25]

1935.' While a prisoner of war in Germany between 1917 and 1918 applicant contracted syphilis and for that disease he received an incomplete course of anti-syphilitic treatment in Germany and England prior to leaving England for Constantinople on army service. On returning to New South Wales in 1926 he entered the respondent's tramway service and sought further treatment at the New South Wales Board of Health, which treatment he was receiving periodically up to and after the time of the happening of the incident on which his claim for compensation is based. This incident occurred on Sunday, 19th March 1933, about 1.55 p.m., while standing on the footboard collecting fares from passengers when the tram was travelling along Anzac Parade near Todman Avenue, Kensing- ton ; a leaf of one of the palms growing in Anzac Parade was swept across applicant's face as he passed it on the moving tram. He reported the injury to the respondent that day in the following terms : - One of the palms alongside tram caught me across the face, blinding me for the moment. After doing another trip I noticed my eye sore and headache. I got relief.' The applicant went home, bathed his right eye, and rested, and on the Monday and Tuesday attended St. Vincent's Hospital for treatment of his right eye, but the treatment there prescribed was for the above-mentioned disease. His injured right eye was examined by the respondent's medical officer. Dr. Finlayson, on 22nd March, but he found no evidence of the injury caused by the palm leaf three days before. There was no sign of any abrasion in any part around the eye or of the eyeball itself. There was no visible redness in the eye, but on looking under both upper lids he found there was a sub-acute conjunctivitis. Applicant's vision was then 6/6. Dr. Finlayson told applicant he could resume duty the following day but for safety had better stay off the footboard for a few days. The applicant resumed duty on 23rd March 1933, and continued at work without complaint to respondent until 8th February 1934, when he temporarily ceased work for eye treatment. On the Tuesday after the palm leaf incident and on every following Tuesday applicant attended at St. Vincent's Hospital for further anti-syphilitic and eye treatment, and while receiving this treatment at St. Vincent's Hospital he also received eye treatment on Fridays

[28]

at the South Sydney Hospital and anti-syphilitic treatment at periodic intervals at the Board of Health without disclosing to either institution that he was receiving similar treatment elsewhere. He stated that he had followed this practice for nearly two years. Applicant's evidence on matters relevant to the onset of the disease in his eyes is not convincing. He stated that on his first complaint to the Board of Health about his eyes he was told to see an eye specialist ; an analysis of his evidence as to the year and month, and as to which hospital and doctor he visited as a consequence, results in contradiction. On the question of when he first sought treatment for his eyes his evidence in chief suggests that he first went to St. Vincent's Hospital, but under cross-examination when asked why he attended both St. Vincent's and South Sydney Hospitals at the one time, he said that he first went to South Sydney Hospital but its eye specialist was on vacation for some months, and it was because of that he went to St. Vincent's Hospital. Further, that his visit to Dr. Blakemore at Lewisham Hospital, whom applicant first saw in May 1934, was in consequence of the Board of Health reference. There is no medical evidence before the commission of applicant having received treatment to his eyes prior to 20th February 1934, when he was admitted to St. Vincent's Hospital suffering from acute choroiditis. Dr. R. J. J. Speight, medical superintendent of the hospital, who produced the relevant records of the hospital, agreed that this condition could be a sequela of syphilis. The applicant was discharged from St. Vincent's Hospital on 12th May 1934, and on 25th idem he went to Lewisham Hospital and consulted Dr. Blakemore, who gave evidence on his behalf. The applicant attended at Lewisham Hospital for six months, but did not tell Dr. Blakemore that he (applicant) was then receiving treatment at both St. Vincent's and South Sydney Hospitals. He did tell Dr. Blakemore that he was receiving anti-syphilitic treat- ment at the Board of Health, and on Dr. Blakemore's suggestion such treatment was temporarily suspended. Dr. Blakemore found that the applicant had iridocyclitis, or inflammation of the iris and ciliary body, and choroiditis and a detached retina in the right eye which was secondary to the iridocyclitis. The right eye was prac- tically blind, and the left eye was affected. Dr. Blakemore agreed

[29]

that mercury and arsenic are used in anti-syphilitic treatment and that too much of such treatment might quite possibly be detrimental. Optic atrophy could result from an excess of arsenic, but that condition was not then present in applicant's eyes - the condition of his eyes at that time, however, was practically hopeless. It appeared as if blindness could quickly supervene. While attending Lewisham Hospital for eye treatment the applicant resumed light duty with the respondent on 14th June 1934, but the left eye became blind, and he was compelled to finally cease work on 14th September 1934, and was later retired from the respondent's service as from 15th February 1935. Applicant claimed full wages from the respondent between 14th September 1934, and 15th February 1935, under sec. 124 of the Transport Act 1930, which provides : ' Where any officer receives personal injury arising out of and in the course of his employment he shall, except where the injury was caused by his own gross negligence or wilful and wrongful act, be entitled during the period of his partial or total disablement arising from the injury, to receive, unless and until he is retired or retires from the service of the trust, the salary he was receiving at the date of the injury.' An action was brought in the Supreme Court on 25th March 1935 by the applicant against the respondent, the question in dispute being the adequacy of the amount of salary which the respondent had paid the applicant during a period of disablement prior to his retirement from the tram- way service, and applicant recovered judgment on 27th November 1935, for £23 9s. 1d., in addition to £115 paid into court. The conten- tion on behalf of the applicant that the respondent was estopped by the Supreme Court judgment from contesting the matters in dispute in these proceedings cannot be sustained for the reason (among others) that the subject matter is different (Broken Hill Pty. Co. v. Broken Hill Municipal Council (1) ). The commission is quite satisfied that the applicant did receive an injury arising out of and in the course of his employment with the respondent on 19th March 1933, when he came into contact with a palm leaf, the injury thus caused being minor in character and one which temporarily affected his right eye. The real question in this case is whether that injury contributed in any material degree to the blindness

[101]

no evidence of a different injury or blindness subsequent to February 15th 1935, The argument involves and is based upon the fallacy that, where an issue between A and B relates to a state of things which is capable of subsequent alteration, the conclusive determina- tion in A's favour of that state of things as at one day plus conclusive proof that up to a later day there has been no alteration of such state of things establishes in A's favour as against B an estoppel as to the state of things existing at the later day. If, for instance. a court held that, on June 30th, 1935, the value of Blackacre was £50,000, and if, in subsequent proceedings between the same parties to determine the value of Blackacre as at June 30th, 1936, it was also proved that there had been no increase or decrease in the value of Blackacre between June 30th, 1935 and 1936, a court which has jurisdiction to determine the value as at the second date is not bound to find that there is an estoppel as to the value of Blackacre as at the second date. Similarly here. What the appellant is trying to do is to eke out a conclusive determination that incapacity through blindness as at an anterior point of time can, by additional proof of absence of any change in the meantime, be converted into a conclusive determination of incapacity through blindness at a later point of time. But this method, though logically sound, is not permitted by law. Estoppel by judgment estops not only as to the res determined but also as to the fundamental issues necessarily involved in the determination, but it does not authorize the use of each issue originally determined merely as the first but unbreakable link in establishing a separate and independent issue. In other words, as against a successful party the unsuccessful party is-bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be. The result is that the appeal should be dismissed.

[107]

1935, such incapacity being solely due to the progress of the pre- existing disease which had no causal connection with his employ- ment." At the appellant's request the commission stated a case for the decision of the Supreme Court raising two questions : - (a) Whether the applicant was entitled to recover the compensation claimed. (6) Whether the commission was in error in holding that the question of whether the applicant during the period for which compensation was claimed was sufferg incapacity as the result of an injury received on 19th March 1933, arising out of and in the course of his employment, was not res judicata between the parties. The determination by the Workers' Compensation Commission of the first question adversely to the applicant could not be set aside, there being ample evidence to support it, unless the respondent was estopped from putting in controversy the issue of incapacity stated in the second question. It is necessary to state more of the facts of the case before considering whether the respon- dent is estopped from litigating the question whether the appellant was from 15th February 1935 suffering from incapacity which resulted from an injury arising out of and in the course of his employment. The judgment which is relied upon to create the estoppel was recovered by the appellant against the respondent on 27th November 1935, before the application to the commission. The writ in the action was issued on 25th March 1935. The declaration shows that the respondent was sued under sec. 124 of the Transport Act 1930. That section is in these terms: " Where any officer receives personal injury arising out of and in the course of his employment he shall, except where the injury was caused by his own gross negligence or wilful and wrongful act, be entitled during the period of his partial or total disablement arising from the injury, to receive, unless he is retired or retires from the service of the trust, the salary he was receiving at the date of the injury." The declaration was framed as follows: " For that the plaintiff was at all material times an officer employed by the defendant within the meaning of sec. 124 of the Transport Act 1930 and the plaintiff as such officer received personal injury arising out of and in the course of his employment and remained for a long time disabled as a result of the aforesaid injury yet the defendant since the date of the said injury and prior

[121]

were that the appellant had met with this injury, which resulted in the disability described in the findings, while on duty as a tram conductor in the respondent's service. It may well be that the respondent was estopped from contesting before the commission whether that injury arose out of and in the course of the appellant's employment and disabled him. But the appellant seeks to take a further step and say that the respondent is estopped from contesting that this injury resulted in blindness. But that is a conclusion which is to be reached, if at all, by reasoning from the matters as to which the judgment in the action creates an estoppel. The estoppel does not bar the respondent from contesting the inference which the appellant seeks to draw from these matters. If they were the only facts to be taken into consideration it may be a natural inference, perhaps an irresistible one, that the appellant's blindness should be attributed to the blow in the eye which the appellant got on duty. But what was concluded by the action did not estop the respondent from introducing evidence repelling the inference which the appellant sought to draw. The facts show that it would be an erroneous inference. After a careful inquiry, in which it had the assistance of medical witnesses, the commis- sion came to the conclusion that the sole cause of the blindness was a disease which the appellant contracted on military service. But, in any case, if it should be assumed that an issue concluded by the action in the Supreme Court was that the injury of 19th March 1933 did result in blindness because of the existence of that con- dition during the period covered by the judgment, it should be remembered that there was no issue in the action as to the condition of the appellant after that date. It is not contradictory of the judgment or of any issue concluded by the action to say that the disability, whatever it was, in respect of which the action was brought, ceased on 15th February 1935, and that the blindness after that date had an entirely new origin and was the sequel of the disease and that nothing except the disease contributed to it.

At a glance

Court

Decision date

Before

Source

Judgment (126 paragraphs)