Fourmeninapub Pty Ltd v Booth

[2019] NSWWCCPD 25

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
Status: Appeal to the Court of Appeal dismissed – Booth v Fourmeninapub Pty Ltd [2020] NSWCA 57
CITATION:	Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25
APPELLANT:	Fourmeninapub Pty Ltd
RESPONDENT:	Lynette Booth
INSURER:	GIO General Ltd
FILE NUMBER:	A1-4546/18
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:	6 December 2018
DATE OF APPEAL DECISION:	6 June 2019
SUBJECT MATTER OF DECISION:	Whether a claim for compensation pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 should have been brought with an earlier claim pursuant to s 4(a) of the Workers Compensation Act 1987; application of the principles of estoppel - issue estoppel, the doctrine of res judicata, and Anshun estoppel; whether the worker sustained a disease injury; application of Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626; whether the Commission has jurisdiction to enter an award for costs pursuant to s 341 of the Workplace Injury Management and Workers Compensation Act 1998, as amended by the Workers Compensation Legislation Amendment Act 2012
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Appellant:	BBW Lawyers
	Respondent:	Somerville Laundry Lomax Solicitors
ORDERS MADE ON APPEAL:	Arbitrator Edwards’ Certificate of Determination, dated 6 December 2018, is revoked and the following is substituted in its place: “An award for the respondent employer.”

INTRODUCTION

1. This appeal concerns the application of the principles of estoppel. In particular it concerns whether the worker’s claim for lump sum compensation for a disease injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act) is barred by issue estoppel and/or Anshun estoppel because a claim pursuant to s 4(a) of the 1987 Act had been previously determined. In the alternative, the appeal concerns whether the worker sustained a disease injury pursuant to s 4(b)(ii) in the absence of there being a “disease to be aggravated”.

2. For the reasons discussed below, the appeal succeeds.

BACKGROUND

1. In 1997 Lynette Booth, the respondent worker, commenced work for Fourmeninapub Pty Limited, the appellant employer. Ms Booth worked as a bar attendant in the appellant’s Commercial Hotel at Kyogle.

2. At 10.30 pm on 7 November 2002, Ms Booth was working at the hotel when one of the hotel patrons, who had been in an argument, smashed a glass on his head and tried to slash his throat. Ms Booth attempted to intervene and in doing so some of the patron’s blood got on her body. Ms Booth was concerned that she may have contracted AIDS or hepatitis. She returned to work two days after this incident, and a few days later she witnessed another fight between different patrons at the hotel. Following this incident, she was unable to continue working at the hotel. She ceased working on 19 November 2002.

3. Ms Booth was diagnosed with Post Traumatic Stress Disorder, and in 2005 was diagnosed with Bipolar Disorder. It is not disputed that Ms Booth suffered…