Fletcher v Bridge

[2000] NSWCA 271

CITATION:	Fletcher v Bridge [2000] NSWCA 271
FILE NUMBER(S):	CA 41018/98
HEARING DATE(S):	4 October 2000
JUDGMENT DATE:	4 October 2000
PARTIES :	Roger James and Gail Fletcher trading as R J Fletcher & Co v Cathy Angela Bridge and Department of Community Services
JUDGMENT OF:	Handley JA at 1; Giles JA at 10; Heydon JA at 11

LOWER COURT JURISDICTION :	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC 21962/95
LOWER COURT JUDICIAL OFFICER :	Walker CCJ

COUNSEL:	J A Gracie (Appellant) M J Joseph SC/I F Butcher (First Respondent) E G Romaniuk (Second Respondent)
SOLICITORS:	Vandervords Sydney (Appellant) Walker Kissane & Plummer Burwood (First Respondent) Moray & Agnew Sydney (Second Respondent)
CATCHWORDS:	RES JUDICATA - issue estoppel - earlier workers' compensation award - no issue estoppel against worker in later claim - no finding as to worker's capacity during period of later claim - WORKERS' COMPENSATION - issue estoppel
CASES CITED:	Blair v Curran (1939) 62 CLR 464 Egri v DRG (Australia) Ltd (1988) 19 NSWLR 600
DECISION:	Appeal dismissed - costs orders made

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

41018/98
CC 21962/95

HANDLEY JA
GILES JA
HEYDON JA

4 October 2000

Roger James and Gail FLETCHER (trading as R J FLETCHER & CO) v Cathy Angela BRIDGE & Anor

RES JUDICATA - issue estoppel - earlier workers’ compensation award - no issue estoppel against worker in later claim - no finding as to worker’s capacity during period of later claim

WORKERS’ COMPENSATION - issue estoppel

The worker was awarded compensation for an injury sustained while working for the appellant for a closed period ending in January 1991. The worker sustained a further injury in May 1995 while working for the second employer and claimed compensation against both employers. The appellant argued that the previous decision created issue estoppels which protected it from liability for the further injury the worker sustained while in the employ of the second employer. Walker CCJ rejected this claim and made an award against both employers and apportioned responsibility. The appellant appealed to this Court arguing that the first Judge’s findings created an issue estoppel in its favour.

HELD , (dismissing the appeal): That the appellant did not have the benefit of any relevant issue estoppel. The first Judge made no finding that the respondent worker had fully recovered and there was no issue before him as to her condition after June 1991. Any prediction by his Honour as to the future course of the worker’s back condition after June 1991 was not legally indispensable to his decision dealing with a claim for a closed period up to that date.

ORDERS

(1) Appeal dismissed;

(2) Appellant to pay costs of first respondent on the usual basis up to 26 April 2000 and on an indemnity basis after that date being for costs thrown away as a result of the adjournment granted by this Court on 14 April 2000;

(3) Appellant to pay the costs of the second respondent on the usual basis.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

41018/98
CC 21962/95

HANDLEY JA
GILES JA
HEYDON JA

4 October 2000

Roger James and Gail FLETCHER (trading as R J FLETCHER & CO) v Cathy Angela BRIDGE & Anor

JUDGMENT

1    HANDLEY JA: The respondent suffered an injury while working for the appellant between 6 and 25 October 1988. Her claim for compensation arising out of this injury was determined by Davidson CCJ in a judgment he delivered on 16 March 1992. He found that the worker had remained partially incapacitated for work until 31 January 1991, but thereafter she was able to do the work for the second respondent, the New South Wales Department of Community Services, that she commenced to do for that employer on 6 June 1991. 2    The worker suffered a further injury on 28 May 1993 while working for the Department. Her claims arising out of this injury came before Walker CCJ who made an award in favour of the worker against both employers for weekly compensation under s 40 and for lump sum compensation under ss 66 and 67. Walker CCJ apportioned responsibility for these awards as between the two employers. The first employer argued unsuccessfully that the findings of Davidson CCJ, in his judgment of 16 March 1992, created issue estoppels which protected it from any liability for the consequences of the further injury the worker sustained on 28 May 1993. Walker CCJ rejected the claim to the benefit of an issue estoppel.
3    This claim has been the subject of the first employer’s appeal to this Court. If the appellant was entitled to the benefit of an issue estoppel further issues would arise. It is not necessary to consider these further issues because the Court is satisfied that the appellant does not have the benefit of any relevant issue estoppel.
4    Davidson CCJ found that the worker had sustained: “something akin to a chronic lower lumbar strain as a result of her employment by the appellant in October 1988”. He found that she was partially incapacitated after 11 June 1989. The only claim before him was for weekly payments for a closed period up to 6 June 1991, when the worker commenced employment with the Department. The Judge rejected the claim for partial incapacity after 31 January on the basis of his finding that from 31 January onwards:

“She would have been fit to do the work she commenced to do on a full time basis for FACS on 7 June 1991 and that the claim should, therefore, close at the date which I have indicated, 31 January 1991”.

5    The Judge added:

“It seems to me that that conclusion is consistent with the further evidence that the applicant had ceased visiting Dr Weinberg around about 21 November 1989 and that throughout 1990 whilst she had resorted to some Digesics and Naprosyn, and to the chiropractic treatment, she probably was slowly but surely overcoming the effects of the strain she had suffered in October 1988”.

6    Notwithstanding this finding, it was clear, as Mr Gracie frankly conceded, that Davidson CCJ did not find that the worker had recovered her pre-injury capacity, and indeed found that she had not. He dealt with this question at some length in his judgment on p 50 of the black book. The Judge’s finding that as from 31 January 1991 the worker was able to do the work that she commenced to do on 6 June 1991 meant that she had not suffered any economic loss after that date as a result of her reduced capacity for work.
7    Mr Gracie relied heavily on the Judge’s statement that throughout 1990 the worker was probably slowly but surely overcoming the effects of the strain she had suffered in October 1988. The effect of this finding, in my view, does not generate an issue estoppel which assists the appellant. The Judge made no finding that the worker had in fact recovered. There was no issue before him as to her condition after 6 June 1991, and any implicit finding as to her condition after that date was not necessary for his decision. 8    It is clear from both Blair v Curran (1939) 62 CLR 464 and Egri v DRG (Australia) Ltd (1988) 19 NSWLR 600 at 607 that issue estoppels only apply to findings of fact which were legally indispensable to the conclusion reached in the first proceedings. Any prediction by Davidson CCJ as to the future course of the worker’s back condition after 6 June 1991 was clearly not legally indispensable to his decision dealing with the worker’s claim up to and including that date. 9 There are other reasons why it might be thought that the claim based on issue estoppel should fail but, for the reasons I have given, there is no need for me to consider other grounds leading to the same result. It is sufficient that any explicit or implicit finding as to the worker’s condition after 6 June 1991 was not legally indispensable to a claim for partial incapacity for a closed period up to that date. In my opinion, therefore, the appeal fails and should be dismissed with costs.
10    GILES JA: I agree.
11    HEYDON JA: I agree.
12    HANDLEY JA: The Court’s order is appeal dismissed. The appellant is to pay the costs of the first respondent on the usual basis, up to 26 April 2000, subject to the special order made by this Court on 14 April for the appellant to pay the costs of the first respondent on an indemnity basis, that order being limited to the costs thrown away as the result of the adjournment granted by this Court. The appellant should pay the first respondent’s costs on an indemnity basis after 26 April 2000. The appellant should pay the costs of the second respondent on the usual basis.
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