HRNG ADELAIDE, 3 June 1991 #DATE 11:7:1991 Counsel for Appellant: Mr. A.R. Harris Solicitors for Appellant: Finlaysons Counsel for Respondent: Mr. A.S. Martin Solicitors for Respondent: Stanley and Partners

JUDGE1 KING CJ This is an appeal on a question of law pursuant to s.47 of the Workers Compensation Act 1971 against a decision of the Full Industrial Court whereby it held that the respondent was not precluded from claiming compensation for a condition of vertigo by the fact that there had previously been a consent award in respect of loss of the senses of taste and smell resulting from the same accident. 2. On 25th October 1982 the respondent suffered a head injury in an accident while travelling to work. As a result of that injury, the respondent lost his senses of taste and smell and suffered vertigo. He was aware of his vertigo by 22nd November 1983. 3. On 27th January 1984, the respondent issued an Application out of the Industrial Court seeking the following orders: "1. That the applicant's entitlement to compensation in respect of the injury sustained in the course of his employment with the respondent on or about the 25th day of October 1982 be assessed pursuant to section 69 and 70 of the Workers Compensation Act 1971-1982. 2. In the alternative to paragraph 1 hereof, that the respondent's liability to the applicant to make future payments of compensation in respect of the said injury be redeemed by payment of a lump sum of compensation pursuant to section 72 of the Workers Compensation Act 1971-1982." 4. One of the grounds set forth was as follows: "(b) On or about the 25th day of October, 1982 in the course of his employment with the respondent the applicant

sustained an injury to his head with consequent loss of senses of smell and taste." 5. When the application came on for hearing on 4th June 1984, a determination was made by consent. The preamble reads: "WHEREAS (i) personal injury arising out of or in the course of his employment with the employer, namely injury to the worker's skull and head was caused to the workers on 25th day of October 1982 (hereinafter, whether more than one injury or not, called "the injury") (ii) the injury is the subject of such proceedings between the parties as are specified in the above heading (hereinafter called "the proceedings") (iii) the parties have reached agreement on all questions and disputes between them concerning the employer's liability to pay and the amount of compensation under the Workers Compensation Act, 1971 as amended, (hereinafter called "the Act") in respect of the injury (iv) the parties have requested that the terms of their agreement be made the subject of the order which appears hereunder" 6. The orders were: "NOW by consent this Court orders as follows:- 1. that, subject to the provisions of the Commonwealth Social Security Act, 1947 as amended, the employer pay to the workers within 14 days of this date

(a) the sum of $7400.00 representing an assessment of compensation pursuant to section 69 of the Act for loss of sense of smell and taste

2. that the employer pay pursuant to section 59 of the Act all reasonable medical and like expenses incurred by the worker as a result of the injury to the date of this order as are agreed by the parties or failing agreement as are assessed by the Court on a further consideration of the question 3. ... 4. ... 5. that such of the remaining claims set forth in the proceedings, as may not already have been determined by this order, be dismissed 6. the worker having expressly agreed (in consideration of the sum of $100.00 to be paid within 14 days of this date by the employer to the worker) not to bring any proceedings against the employer in respect of the injury independently of this Act, that that agreement be incorporated in the judgment herein"
3. The respondent continued to work for the appellant until 5th February 1989 when he was dismissed following development of an unrelated sight problem.
4. The respondent subsequently brought the present claim for weekly payments of compensation from 5th February 1989 together with medical expenses and costs. He alleged the injury or injuries in respect of which he claimed entitlement as follows: "As to each injury separately: (a) the date on which 25th October, 1982 it was caused to the worker; (b) the nature and extent Head injury of the injury resulting in an anosmia and vertigo (c) the disabilities Loss of smell, resulting from the vertigo injury dizziness, incapacity for work."
5. Notwithstanding the reference to anosmia (which is loss of taste and smell) and vertigo, both parties acknowledged in the Industrial Court that the respondent's claim for weekly payments was based on vertigo only.
6. The appellant contended before the Industrial Court that the claim was barred as res judicata by reason of the 1984 award. The learned primary judge upheld this contention, but his decision was reversed in the Full Industrial Court by the decision against which this appeal is brought.
7. Res judicata, or cause of action estoppel, arises where "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..." Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 per Dixon J at p 532; Port of Melbourne Authority v. Anshun Pty. Ltd. [1981] HCA 45; (1981) 147 CLR 589 per Gibbs CJ, Mason and Aickin JJ at p 597. Res judicata in the strict sense applies where a cause of action, having been litigated in a prior proceeding, has merged into judgment in that proceeding. It applies also, however, in an extended sense to matters which were not litigated in the prior proceeding but belonged properly to the subject matter of the prior proceeding and could have been raised in that proceeding: Port of Melbourne Authority v. Anshun supra at p
8. The principle was expressed by Wigram VC in Henderson v. Henderson [1843] EngR 917; 3 HARE 100 at p 114-115; [1843] EngR 917; 67 ER 313 at p 319: "In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to

the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." 12. The application of these principles to claims under workers compensation legislation presents difficulties. If the claim were a claim for damages at common law, the position would be clear. Where there is a judgment in an action for damages at common law for bodily injury resulting from a wrongful act, all claims for damages for bodily injury resulting from that act merge in the judgment and no action can subsequently be maintained for any further bodily injury subsequently discovered: Fetter v. Beal [1792] EngR 320; 1 Ld Raym 339; 91 ER 1122; Brinsden v. Humphrey (1884) 14 QBD 141 per Bowen LJ at p 148. The rights to compensation under the workers compensation legislation, however, differ markedly in nature from the rights to damages for a wrongful act conferred by the common law and the means provided for enforcing claims for workers compensation are also very different from the common law remedies. 13. The Workers Compensation Act 1971 does not create a single cause of action for compensation for injury sustained in a particular accident. A worker may under this Act, as was the case under the Commonwealth Employees' Compensation Act 1930 which was considered in Commonwealth v. Matheson [1955] HCA 24; (1955) 93 CLR 403, be compensable separately in respect of disparate injuries sustained in the same accident and may pursue separate claims in respect of such injuries. Thus where a worker sustained a leg injury and a back injury in the same accident, it was held that the receipt of a lump sum for the leg injury did not disentitle the worker to subsequent weekly payments in respect of the back injury: Lee v. Commonwealth (1971-1972) 18 FLR 400. 14. Moreover the remedy conferred by the Act is not an action to recover compensation analogous to the remedy at common law. The Act provides for the giving of notice of injury and the making of a claim on the employer (section 27). There is an obligation on the employer to commence weekly payments "as soon as possible after the occurrence of the incapacity" (s.53(1)), and provision for an employee's application to the Court to be released from that obligation (s.53(2)). There is provision for the registration of agreements for lump sums by way of compensation (Part III Division III). 15. Those provisions provide what appears to be contemplated by the Act as the ordinary method by which compensation will be obtained. The jurisdiction conferred on the Industrial Court is "to hear and determine any question or dispute concerning any matter or thing arising out of, or connected with, the liability to pay, or the amount of, compensation under this Act and all matters and things ancillary thereto". (Section 21) Such a question or dispute may, of course, extend to the whole issue of liability to pay, or to the amount of, compensation and there is express provision for such disputes to be brought before the Court (s.39(1)). Where the dispute extends to the whole question of liability to pay, the proceedings in the Industrial Court bear a resemblance to common law actions and there is reference in s.27 to "proceedings for the recovery of compensation". That must not be allowed to obscure, however, the essential point that the jurisdiction of the Industrial Court as envisaged by the Act is to determine questions and disputes arising in the compensation process rather than to be the vehicle for the pursuit of claims for the recovery of compensation. That role of the Industrial Court is incompatible with the notion that where a dispute is brought to the Court as to liability for a particular injury, the worker is obliged to raise all other injuries arising out of the accident notwithstanding that they may not be in dispute at all. 16. In my opinion a worker who seeks to have a disputed right to compensation in respect of a particular injury determined by the Industrial Court, is not required to raise in the proceedings all injuries or impairments which he has sustained in the accident or even all injuries or impairments of which he is then aware. He may obtain an award in respect of one or more injuries or impairments, and subsequently pursue his claim in respect of other injuries or impairments suffered in the same accident. If, however, a claim in respect of a particular injury or impairment is pleaded in the proceedings and is the subject of a determination either granting compensation or dismissing the claim, the claim in respect of that injury or impairment merges in the determination and subsequent proceedings for the determination of a disputed claim in respect of the same injury or impairment would be barred as res judicata. It is therefore necessary to examine the pleadings in the prior proceedings and the terms of the award, in order to determine whether the subsequent claim is barred. 17. The claim in the present proceedings is for vertigo resulting from the head injury. The question is whether the claim in respect of that injury or impairment was determined by the consent order made in the prior proceedings. 18. In the prior proceedings the injury in respect of which compensation was sought was described as "an injury to his head with consequent loss of senses of smell and taste" and the application was for compensation to be assessed under ss.69 and 70. The preamble to the consent order recites that there was an "injury to the worker's skull and head" and that agreement has been reached as to "all questions and disputes... in respect of the injury". Mr. Harris who appeared for the appellant before us argued that the expression "the injury" must refer to the injury to the worker's skull and head. It seems to me, however, that the expression must be read in the light of the description of the injury in the application as "an injury to his head with consequent loss of senses of taste and smell". This is reinforced by the fact that the amount ordered to be paid is the amount prescribed in the s.69 table, and is described in the order as, "for loss of sense of smell and taste". The order, following the common form, dismisses all remaining "claims set forth in the proceedings". There were, however, no other claims in the proceedings. The order incorporates an agreement "not to bring any proceedings against the employer in respect of the injury independently of this Act", but that has no bearing upon subsequent proceedings under the act. 19. Loss of senses of taste and smell is tabulated as an injury in the s.69 table and a sum is prescribed in the table as the compensation for that injury. It is that amount which was awarded in the consent order in the 1984 proceedings. Mr. Harris pointed out that the 1984 application also referred to s.70 and that that section is apt to provide compensation for vertigo and any other consequence of the head injury. He contended that that indicated that the 1984 application embraced the head injury and all its consequences and that the implicit claim in respect of consequences other than loss of taste and smell was dismissed by the consent order. I think that that is reading altogether too much into the reference to s.70. The claim was for lump sum compensation. Sections 69 and 70 are the sections which provide for lump sum compensation. I think that the reference to the two sections implied no more than that the worker sought ss.69 and 70 type compensation, that is to say compensation by way of a lump sum. I consider that the application, on its true construction, limited the injury which was its subject to loss of sense of taste and smell. 20. It follows from what I have said that the claim for compensation for vertigo did not merge in the consent determination and is not barred by it. Section 69 provides, by implication, that there is no right to weekly payment in respect of a period of incapacity occurring after an assessment of compensation under s.69 but that provision is limited to incapacity "resulting from that injury", that is to say the loss of taste and smell. The determination under s.69 does not impair the right to weekly payments during incapacity resulting from vertigo. 21. One ground of appeal is that the Full Industrial Court erred in law in finding that the institution of these proceedings was not an abuse of process. The learned primary judge had held that the application was an abuse of process on the authority of Port of Melbourne Authority v. Anshun Pty. Ltd. supra and the Full Industrial Court disagreed. The application could only be an abuse of process if the respondent ought to have included the claim for vertigo in the 1984 application. For reasons which I have given above, I am of the opinion that he was under no obligation to do so. 22. In my opinion the appeal should be dismissed.

JUDGE2 COX J I would dismiss this appeal for the reasons that the Chief Justice has given. I add two brief comments. First, res judicata, like issue estoppel, can only be held to have arisen in a clear case. The appellant's argument here, while having a degree of plausibility about it on one view of the 1984 application and minutes of order, had too many loose ends and uncertainties to satisfy the requirement that the point be established clearly and unambiguously. Secondly, while the workers compensation legislation permits a worker to make successive claims for different injuries suffered on the one occasion, it is obviously desirable that all table injury claims, for instance, be made at the same time if that can reasonably be done, and it would be unfortunate if the decision in this case were to lead anyone to think otherwise. Sometimes the latency of a second injury or the need to wait before a final medical assessment can be made will justify splitting the claims, but the worker who brings multiple applications without some such justification is likely to be met with an argument that he be penalised in costs.

JUDGE3 BOLLEN J I agree with the reasons of an order proposed by the Chief Justice.