Plaintiff v Defendant

Supreme Court of Victoria|2012-05-18|Before: BEACH J

ACCIDENT COMPENSATION - Negligence - Claim for damages - Trial of preliminary question - Claim by plaintiff that defendant estopped from denying plaintiff had suffered compensable injury - Issue estoppel - Previous County Court proceeding between the parties - Consent declaration made by County Court - Accident Compensation Act, ss 98C and 134AB.

1 This is a claim for damages for injuries allegedly sustained by the plaintiff during the course of his employment with the defendant between 20 October 1999 and August 2006. The plaintiff's claim is brought pursuant to of the . permits workers, in certain circumstances, to bring proceedings for damages in respect of injuries arising out of, or in the course of, employment engaged in on or after 20 October 1999.

2 By paragraph four of his statement of claim, the plaintiff alleges:

"The plaintiff sustained injury, which arose out of or in the course of his employment with the defendant between 20 October 1999 and August 2006, as a result of performing the work duties[1] and, in particular, on or about 27 January 2008 (sic, 27 January 2001) when a heavy reel containing paper struck the plaintiff on his neck and right shoulder ("the injury")."

3 By paragraph four of its defence, the defendant pleads:

"Save that it admits that on 29 January 2001, the plaintiff reported sustaining injury by way of bruising to his right shoulder when he was struck on the right shoulder by a reel of paper on or about 27 January 2001 it otherwise denies the allegations contained in paragraph four thereof."

4 By paragraph two of his reply, the plaintiff pleads:

"As to paragraph four of the defence, he says that the defendant is estopped, by reason of the declaration made by his Honour Judge Wischusen on 22 October 2009 in proceedings between the plaintiff and the defendant in County Court proceeding number CI-09-00335 whereby it was declared that pursuant to s 98C of the Accident Compensation Act 1985, the plaintiff had suffered compensable injuries with right shoulder, neck and consequential impairment of his upper and lower limbs and anxiety and depression, from asserting in this proceeding that the plaintiff did not sustain compensable injury arising out of or in the course of employment with the defendant."

5 On 27 April 2012, Daly AsJ ordered the following question to be tried as a preliminary question:

"Is the defendant estopped, by reason of the declaration made by his Honour Judge Wischusen on 22 October 2009 in proceedings between the plaintiff and the defendant in County Court proceeding number CI-09-00335 whereby it was declared that pursuant to s 98C of the Accident Compensation Act 1985 the plaintiff had suffered compensable injuries to his right shoulder, neck and consequential impairment to his upper and lower limbs and anxiety and depression, from asserting in this proceeding that the plaintiff did not sustain compensable injury arising out of or in the course of employment with the defendant?"

7 By writ issued 30 January 2009, the plaintiff commenced proceedings in the County Court against the defendant and CGU Workers Compensation (Vic) Limited ("CGU"). By his original statement of claim, the plaintiff alleged that:

(a) CGU was an authorised agent of the Victorian WorkCover Authority and was liable for any liability or potential liability of the Victorian WorkCover Authority; and

(b) the plaintiff was employed by the present defendant.

8 By paragraph five of his original statement of claim in the County Court proceeding, the plaintiff pleaded:

"On or about 27 January 2001 and throughout the course of the plaintiff's employment with [the present defendant] the plaintiff was subjected to heavy repetitive and stressful employment and suffered injury to his neck, legs, arms and right shoulder (hereinafter referred to as 'the injuries')."

9 By paragraph five of their defence filed 13 March 2009 in the County Court, the present defendant and CGU denied the allegations in paragraph five of the plaintiff's original County Court statement of claim.

10 In the County Court proceeding, the plaintiff sought declarations of entitlement to compensation pursuant to provisions of the Accident Compensation Act 1985 and orders that the defendants to that proceeding make such payments of compensation to the plaintiff.

11 In October 2009, the County Court proceeding came on for trial. At trial, the plaintiff amended paragraph five of his statement of claim. As amended, paragraph five provided:

"(a) On or about 27th January 2001 and throughout the course of the plaintiff's employment with [the present defendant] the plaintiff was subjected to heavy repetitive and stressful employment and suffered injury to his neck, legs, arms and right shoulder (hereinafter referred to as 'the injuries').

(b) Further to what is alleged in sub-paragraph (a) and on or about the 27th January 2001 the plaintiff when working in the course of his employment with [the present defendant] sustained injury when a large and heavy roll of paper fell and struck his neck and right shoulder."

12 On 22 October 2009, Judge Wischusen made a number of orders by consent. So far as is relevant for the purposes of the present trial, Judge Wischusen made an order by consent in the following terms:

"It is declared that pursuant to s 98C of the Act[2] the defendants[3] are liable for injuries to the plaintiff's right shoulder, neck and consequential impairment to the plaintiff's upper and lower limbs and anxiety and depression."

13 Section 98C of the Accident Compensation Act is the provision that provides for no fault compensation for economic loss to be paid to a worker who suffers an injury which entitles that worker to compensation under the Act and which injury results in permanent impairment as assessed in accordance with s 91 of the Act. Section 98C was first enacted by s 36 of the Accident Compensation (Miscellaneous Amendment) Act 1997. By s 2(2) of that Act, s 98C was deemed to have come into operation on 12 November 1997.[4]

14 The starting point so far as the current analysis is concerned is the judgment of Dixon J in Blair v Curran.[5] His Honour 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. 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, 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."

15 Consent judgments (or judgments where no reasons are given) provide particular difficulties. This is all the more so where such a judgment has been entered for a defendant. As the learned author of Spencer Bower, Turner and Handley, Res Judicata (3rd Edition) put it:[7]

"Though consent judgments and orders are decisions and their operative parts binding, it may not be clear what questions were concluded. The court will examine the available evidence to ascertain the matters in dispute. Any issue which the parties recognised was the subject of the litigation and was fundamental to the judgment or order will be conclusively determined. Where, however, there are no such materials neither party is estopped from disputing anything but the actual judgment or order. The proper approach to determining the scope of a consent judgment was stated by Lord Herschell LC:

'a judgment by consent is intended to put a stop to litigation between the parties, just as much as is a judgment which results from the decision of the court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments and were to allow questions that were really involved in the action to be fought over again in a subsequent action.'"[8]

16 The issue has been discussed by Goldberg J in ACCC v Australian Safeway Stores Pty Ltd (No. 3).[9] In that case, his Honour said:[10]

"Where a judgment is given in favour of an applicant or plaintiff, it is easier to determine the issues that are fundamental to the judgment than it is when a judgment is given in favour of a respondent or a defendant in respect of causes of action that require a number of elements to be established, the failure to prove any one of which will result in the claim being dismissed. In a multi element cause of action, a dismissal of the proceeding without reasons will not demonstrate which elements were not made out. The proposition is succinctly set out in Spencer Bower, Turner and Handley at pp 56-57:

'A dismissal of an action which could succeed on establishing either X or Y, is a decision negativing both, but if the action is found on X plus Y, its dismissal does not necessarily involve a decision as to either, since the action may have failed because X had not been established, though Y had been, or vice versa, or because neither had been established.'"[11]

17 In determining questions of the present kind, it will often be important to consider what material can be looked at for the purpose of ascertaining the matters that were in dispute. The pleadings in the earlier proceeding are obviously of critical importance.[12] In Spencer Bower, Turner and Handley,[13] the position is put as follows:[14]

"It was formerly considered that the subject matter of a decision for the purposes of res judicata could only be ascertained from the formal judgment or order and the court could not examine 'what was said by the judges'. The previous author was in some doubt but preferred the view that the court's reasons could be considered. There were then many cases favouring the broader view.

Since then the law has been settled in favour of the broader view. In R v Humphrys, Lord Hailsham said: 'The court will inquire into realities, and not mere technicalities', and in Rogers v R, Brennan J said that the court would look at 'any material that shows what issues were raised and decided'. The point now seems to be assumed. Thus, in Thrasyvoulou the House considered reports of planning inspectors. In Arnold it held that issue estoppel was excluded because of the special circumstances but that question could not be investigated if the court were confined to the pleadings and the order.

The court can consider the pleadings, particulars, evidence, the notice of appeal or cross-appeal, the reasons for judgment, the summing up, any questions put to the jury and its answers."

18 It is necessary to put the words of Lord Hailsham (referred to above) that "The Court will inquire into realities, and not mere technicalities" into the context in which they were stated. The words appear in the sixth proposition of a ten proposition summary of Lord Hailsham's opinion in R v Humphrys.[15] It is sufficient to set out the first six propositions of Lord Hailsham's summary:

"(1) The doctrine of issue estoppel as it has been developed in civil proceedings is not applicable to criminal proceedings. It follows that the decision in Reg v Hogan [1974] QB 398 was wrong and should not be followed. The decision in H.M. Advocate v Cairns, 1967 J.C. 37 was correct and is applicable in England. (2) Although the civil doctrine of issue estoppel as it has been developed in civil proceedings is not applicable to criminal proceedings, there is a doctrine applicable to criminal proceedings which is in some ways analogous to issue estoppel, and has sometimes been described by that name. However, (3) the civil doctrine is based on the necessity for finality between private litigants, whereas the doctrine in criminal proceedings is based on the prohibition of double jeopardy, that is, the maxim nemo debet bix vexari pro una et eadem causa. It follows (4) that whereas the civil doctrine is equally applicable to either of the two civil parties, the criminal doctrine is available to the accused but not to the Crown. (5) Whereas the civil doctrine applies to all cases where an individual issue can be isolated and identified as determined, the criminal doctrine is not so limited but is primarily concerned with verdicts, and applies to verdicts which are either in form or in substance inconsistent. (6) In general, the doctrine in criminal law precludes the Crown from adducing evidence or making suggestions which are inconsistent with a previous verdict of acquittal when its real effect is determined. The doctrine is one of substance rather than form. The court will inquire into realities and not mere technicalities."[16]

19 As is apparent from the context of His Lordship's opinion, His Lordship was discussing the doctrine applicable to criminal proceedings, not the doctrine of issue estoppel as developed in civil proceedings, when he said that the Court would inquire into realities and not mere technicalities. That is not to say that when considering the question of issue estoppel in a civil proceeding, the Court should take some different approach. Few would dispute the general proposition that a Court should always inquire into realities, rather than mere technicalities.[17] However, the application of this proposition cannot be used to ignore the existence of an issue that was alive at the time of an earlier trial, merely because it was not the main issue or the issue upon which the parties focused their primary attention.

20 The plaintiff submitted that the trial of the preliminary question ordered by Daly AsJ arose from evidence in the possession of the defendant which was to be adduced at trial. Specifically, the plaintiff referred to the following matters:

(a) a neurosurgeon, Mr Brazenor, in a report dated 11 July 2011, has expressed the opinion that "There is no evidence to link [the plaintiff's] subsequent cervical myelopathy and degenerative disease of the cervical spine with the incident on 27 January 2001"; and

(b) an orthopaedic surgeon, Mr Hooper, in a report dated 25 August 2008, has expressed the opinion that he does not believe the plaintiff's employment is a significant contributing factor to the plaintiff's medical problem of ataxia and neck discomfort.

21 There can be no doubt that, insofar as it is relevant, the defendant is estopped, by the declaration made in the County Court, from denying the fact that the plaintiff suffered injuries to his right shoulder, neck and consequential impairment to his upper and lower limbs and anxiety and depression as a result of his employment (in the sense that such injuries arose out of or in the course of his employment[18]) with the defendant at some time on or after 12 November 1997 (the date of the commencement of s 98C).[19] However, the difficulty for the plaintiff is that the present proceeding claims damages in respect of injuries suffered as a result of employment performed by the plaintiff with the defendant between 20 October 1999 and August 2006.

22 On the pleadings in the prior County Court proceeding, the declaration made by Judge Wischusen on 22 October 2009 can be supported by the existence of injury sustained in the course of the plaintiff's employment, where such employment was engaged in at some time, or during some period or periods, between 12 November 1997 and 19 October 1999. Theoretically, while the defendant might be estopped from denying the existence of such an injury caused by such employment, the existence of that fact may have little (if any) relevance to the current proceeding.

23 Recognising this difficulty, counsel for the plaintiff sought to overcome the problem by tendering before me the transcript of the trial heard by Judge Wischusen. He submitted that this transcript could be looked at in order to determine what, in reality, was necessarily decided by the consent declaration.

24 At the commencement of the trial before Judge Wischusen, paragraph five of the statement of claim was amended. Whilst Senior Counsel for the plaintiff initially sought to amend paragraph five to plead a single incident in the course of employment on 27 January 2001, this application was subsequently withdrawn and application was made to amend paragraph five in the form set out above. In response to this application, counsel for the defendant said:

"It doesn't take us by surprise, Your Honour. We didn't mind my learned friend relying specifically on the incident, but we've treated it all along as the incident and the work thereafter."

25 The plaintiff gave evidence before Judge Wischusen that he commenced employment with the defendant in June 1999. He described the work he performed from that time as "heavy lifting, a lot of heavy lifting". He then described the incident he alleges occurred on 27 January 2001. He described the consequences of this. He then described symptoms that developed in the subsequent years after performing further heavy work.

26 At one stage during his evidence, the plaintiff was asked a number of questions by Judge Wischusen concerning the performance of his work for sometimes up to 12 to 14 hours a day at the defendant's Paw Paw Road premises. These were the premises where the plaintiff was employed by the defendant from the commencement of his employment until approximately 2005.[20]

27 A number of medical witnesses were called in the County Court proceeding (Dr Castle, a general practitioner; Dr Martyn, a general practitioner; Mr Maartens, a medical practitioner with a fellowship in neurological surgery; and Professor Helme, a consultant neurologist). Following the conclusion of Professor Helme's evidence, the matter settled and consent orders were made. It is to be noted that paragraph one of the consent orders provided that the present defendant and CGU make various payments to the plaintiff pursuant to the Accident Compensation Act "with respect to the injuries the subject of this action as pleaded in paragraphs 5(a) and (b) of the amended statement of claim".

28 While the plaintiff's principal case at trial before Judge Wischusen related to the accident he alleged occurred on 27 January 2001 and the performance of heavy work thereafter, at no point did the plaintiff abandon his claim for injury sustained as a result of performing work throughout the course of his employment. Indeed, from time to time the fact of employment generally being a cause of the plaintiff's alleged injuries was either referred to in discussion, or the subject of evidence.[21]

29 Having examined the transcript of the trial before Judge Wischusen, I am unable to conclude that what was decided by the consent declaration was necessarily limited to injuries caused by the alleged accident on 27 January 2001 or injuries necessarily caused by work performed on or after 20 October 1999. The consent judgment is capable of being supported by reference to work the plaintiff alleges he performed between June 1999 and 20 October 1999.

30 It follows that while the defendant might be estopped from denying the existence of relevant injury caused as a result of performing work at some time (or during some period or periods) between the time when he commenced employment with the defendant (June 1999) and 19 October 1999, this would not prevent the defendant from leading evidence or contending that any injury alleged by the plaintiff in this proceeding was not caused by any incident at work on 27 January 2001;[22] nor from leading evidence or contending that any such injury was not caused by work performed on or after 20 October 1999.

31 Remembering that the defendant is only estopped from denying those matters necessarily established as the legal foundation or justification for the consent declaration made by Judge Wischusen, in the present case (and to the extent that it is relevant), the defendant will be estopped at trial from denying that, at some point in time prior to 22 October 2009, the plaintiff suffered injuries to his right shoulder, neck and consequential impairment to his upper and lower limbs and anxiety and depression, arising out of or in the course of employment that was engaged in by the plaintiff with the defendant at some point in time (or during some period or periods) on or after 12 November 1997.

32 Further, the defendant will be estopped from denying that as at 22 October 2009, the injuries referred to resulted in permanent impairment as assessed in accordance with s 91 of the Accident Compensation Act, in the sense of being "likely [at that time] to last for the foreseeable future". As has been noted before, a finding that a person is totally and permanently incapacitated at a particular time does not mean that that person will in fact be totally incapacitated in the future. A number of factors subsequent to such a finding, such as an unexpected improvement in the person's condition, advances in medical science, the achievement of fresh skills, an improvement in the labour market or the opportunity to learn fresh skills from participating in an approved occupational rehabilitation service may bring an end to such incapacity or reduce it.[23]

"So far as it is relevant in the present proceeding, the defendant is estopped, by reason of the declaration made by his Honour Judge Wischusen on 22 October 2009, from asserting that the plaintiff has never suffered an injury to his right shoulder, an injury to his neck, consequential impairment to his upper and lower limbs or anxiety and depression arising out of or in the course of any employment of the plaintiff by the defendant."

34 However, it follows from what I have said above that the estoppel created by the declaration made by Judge Wischusen does not prevent the defendant from asserting that the plaintiff did not suffer any relevant injury arising out of or in the course of employment with the defendant at any time on or after 20 October 1999 or, more specifically, from asserting that the plaintiff did not suffer any relevant injury arising out of any incident that may have occurred on or about 27 January 2001. I will hear the parties as to the appropriate form of order and any question of costs.

[1] "The work duties" being defined in paragraph two of the statement of claim as being work which required the plaintiff to "repetitively unload and stack reels of paper of a variety of weights and sizes, empty recycle bins containing paper and generally perform repetitive and heavy labouring duties".

[4] The Accident Compensation (Miscellaneous Amendment) Act 1997 having been assented to on 23 December 1997.

[8] See also Isaacs v The Ocean Accident and Guarantee Corporation Limited (1958) 58 SR (NSW) 69 at 75 per Street CJ and Roper CJ in eq.

[11] Whilst an appeal against this decision was allowed in part in ACCC v Australian Safeway Stores Pty Ltd [2003] FCAFC 149; (2003) 129 FCR 339, that appeal did not concern the question of issue estoppel.

[12] See Isaacs v The Ocean Accident and Guarantee Corporation Limited (1958) 58 SR (NSW) 69 at 75 per Street CJ and Roper CJ in eq.

[13] The Doctrine of Res Judicata (third edition)

[14] Ibid, 106[204]. See also, Spencer Bower and Handley, Res Judicata (fourth edition), 119[8.29].

[15] [1977] AC 1 at 40-41.

[16] See also Rogers v R (1994) 181 CLR 251.

[17] Cf Kirby J in Forsyth v Deputy Commissioner of Taxation [2007] HCA 8; (2007) 231 CLR 531 at paragraph [53] wherein his Honour said:

"Yet it is of the first importance for the rule of law which underpins Australia's constitutional arrangements, that technical legal arguments, if found to be valid, should ordinarily be upheld. If they have merit in law, that is normally sufficient to attract relief from a court of law."

[19] See generally Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 531-2; Carl Zeiss Stiftung v Rayner & Keeler Limited (No 2) [1967] 1 AC 853, 933-935 and 963-965; ACCC v Australian Safeway Stores Pty Ltd (No 3) [2001] FCA 1861; (2001) 119 FCR 1; Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363, 373 and Maurice Blackburn Cashman v Brown [2011] HCA 22; (2011) 242 CLR 647.

[20] County Court transcript, T50,31; T71.29 - T74.20.

[21] See, for example, County Court transcript, T11.5 - .6, T109.3 - .8, T119.23 - .24, T120.25 - .31, T128.5 - .13 and T139.30 - T140.11.

[22] Cf the evidence which the plaintiff alleges the defendant proposes to lead from Mr Brazenor (set out above).

[23] AMP Workers Compensation Services Limited v Chalkley [1998] VSC 29, [37]-[38]; Norris v Brumar (Victoria) Pty Ltd [2009] VSC 214, [16].

Compensation Act 1985

Accident Compensation (Miscellaneous Amendment) Act 1997

Compensation Act 1985

Accident Compensation (Miscellaneous Amendment) Act 1997

At a glance

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Judgment (74 paragraphs)

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Legislation Cited (4)

Cases Cited (7)