Geary v UPS Pty Ltd
[2021] NSWPICPD 47
•17 December 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Geary v UPS Pty Ltd [2021] NSWPICPD 47 |
| APPELLANT: | Peter Geary |
| RESPONDENT: | UPS Pty Ltd |
| INSURER: | Employers Mutual NSW Ltd |
| FILE NUMBER: | A1-178/21 |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| DATE OF APPEAL DECISION: | 17 December 2021 |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 10 May 2021 is confirmed. |
| CATCHWORDS: | WORKERS COMPENSATION – Application of the principles of Anshun estoppel – whether claim estopped by failure in original action to plead a disease injury pursuant to s 4(b)(ii) of the Workers Compensation Act 1987;Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 23; Secretary, Department of Communities and Justice v Miller & Anor (No 5) [2020] NSWWCCPD 38 applied |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr J Beran, counsel | |
| Walker Law Group | |
| Respondent: | |
| Mr D Adhikary | |
| Rankin Ellison Lawyers | |
| DECISION UNDER APPEAL | |
| MEMBER: | Mr M Perry |
| DATE OF MEMBER’S DECISION: | 10 May 2021 |
INTRODUCTION AND BACKGROUND
Mr Peter Geary (the appellant) was employed by UPS Pty Ltd (the respondent) as a warehouse worker, commencing this work in 2013. This was a physically demanding role which required the appellant to repetitively lift and handle boxes. The appellant alleged that he suffered injuries to both shoulders and his cervical spine/neck as a result of performing this work. The terms ‘cervical spine’ and ‘neck’ are used interchangeably throughout the evidence, however it is clear that the references are to the single body part. The appellant continued in this work until 1 February 2018 when he developed severe pain in his right shoulder. He has not worked since.
The full details of the appellant’s history which is relevant to this appeal is set out in greater detail later in this decision. The appellant has brought two applications before this Commission and its predecessor organisation, the Workers Compensation Commission. The initial set of proceedings filed by the appellant were registered by the Workers Compensation Commission on 10 September 2019, matter number 4673/19 (the 2019 proceedings). In this case the appellant claimed certain benefits which were ultimately resolved by consent orders made in the 2019 proceedings on 29 November 2019. Subsequently, the appellant commenced a second set of proceedings in matter 178/21, dated 14 January 2021 (the 2021 proceedings).
The matter came before Arbitrator M Perry (as he then was) on 24 February 2021. When the matter was unable to resolve, directions were made for the exchange and filing of written submissions which ultimately led to the Member publishing his reasons on 10 May 2021.
The Member found that the appellant was estopped from pursuing an allegation in the 2021 proceedings in relation to a disease injury to his neck, including on the basis of the nature and conditions of the appellant’s employment with the respondent. This estoppel was based upon the application of the principles in Port of Melbourne Authority v Anshun Pty Ltd.[1]
[1] [1981] HCA 45; 147 CLR 589 (Anshun).
The appellant challenges the adverse finding made against him based upon an application of the Anshun principles.
TRANSITIONAL MATTERS
This matter was commenced in the former Workers Compensation Commission but was decided after that Commission was abolished.[2] The decision appealed against in this matter was delivered on 10 May 2021. The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[3] The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act. For the purposes of this decision, I will refer to the decision maker as the Member.
[2] Clause 3 of Div 2 of Pt 2 of Sch 1 of the Personal Injury Commission Act 2020 (the 2020 Act).
[3] Section 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
ON THE PAPERS
Section 52(3) of the 2020 Act provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE EVIDENCE
Given that this is a case about Anshun estoppel, this will involve a consideration of the 2019 and 2021 proceedings in some detail as those proceedings apply to the appellant’s claimed neck injury. For ease of reference, I set out below the evidence which is germane to the matters that I must consider on appeal in each of the two separate proceedings.
The 2019 proceedings
The pleaded injury and claim
The claim subject of the 2019 proceedings is contained in a letter dated 28 June 2019, claiming 37% whole person impairment (WPI) with respect to the cervical spine, left upper extremity, right upper extremity and scarring. The appellant relies on the medical opinion of Dr Guirgis dated 26 June 2019. Whilst the letter does not provide particulars of injury, it is apparent that the nature of the injuries being claimed were those contained in the opinion of Dr Guirgis.[4]
[4] Respondent’s Application to Admit Late Document (AALD) dated 12 February 2021, p 15.
After this letter of claim, a notice was issued by the respondent’s insurer pursuant to s 78 of the 1998 Act on 8 July 2019, disputing liability for compensation in relation to the appellant’s injury to the left shoulder and cervical spine with a date of injury of 1 February 2018. In regard to the cervical spine, the notice states that the appellant had reported “long withstanding [sic] pain in [the] left shoulder and the left side of [the] neck. On 12 November 2018 [the appellant] had an MRI of [his] cervical spine. This report concluded a C4/5 broad based disc osteophyte which causes severe left neural exit foraminal stenosis and probable impingement of the exiting left C5 nerve root.” The s 78 notice considers the report of Dr Guirgis dated 26 June 2019 and relies on Dr Bosanquet’s opinion that the cervical spine injury is due to deterioration of underlying degenerative changes.[5]
[5] Respondent’s AALD dated 12 February 2021, p 17.
The appellant subsequently lodged an Application to Resolve a Dispute (4673/19) on 9 September 2019 (2019 ARD) claiming $116,250 for 37% WPI pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), with respect to injuries to the cervical spine, left upper extremity and right upper extremity. The 2019 ARD also claimed medical expenses in the sum of $20,000.00 in respect of future left shoulder surgery.[6]
[6] Reply to Application to Resolve a Dispute (reply), p 32 and AALD dated 12 February 2021, p 1.
At page 2 of the 2019 ARD, the matters in dispute are “medical expenses”, “lump sum compensation where liability in dispute” and “lump sum compensation where degree of permanent impairment is in dispute” (emphasis added).
The injury pleaded under the heading “Injury Details - 1/02/2018”, is a “personal” injury with a date of 1 February 2018. The mechanism is described as:
“The Applicant suffered physical injuries to his right shoulder while at work. As a result of overcompensation, the Applicant suffered consequential injuries to his left shoulder and neck”.[7]
[7] Application to Resolve a Dispute (ARD), p 5.
However, this injury description was amended in the Certificate of Determination – Consent Orders dated 29 November 2019 (the 2019 COD) to insert the words “cervical spine” after the words “right shoulder”.[8] It is apparent that the intention of Order (2) was to claim a cervical spine injury, as follows:
“The [appellant] suffered physical injuries to his right shoulder, cervical spine, while at work. As a result of overcompensation, the [appellant] suffered consequential injuries to his left shoulder and neck” (emphasis added).
[8] Reply, p 1.
Following this amendment, Order (3) of the 2019 COD determined (by agreement) the cervical spine injury in favour of the respondent, ordering an:
“Award in favour of the respondent in respect of the allegation of injury and/or consequential condition to the cervical spine”.
Order (1) of the 2019 COD discontinued the claim for WPI pursuant to s 66 of the 1987 Act, while Order (4) directed the payment of the claimed medical expenses associated with the left shoulder surgery.
The statement evidence
In an updated statement dated 10 July 2019, the appellant describes his left shoulder pain arising as a consequence of his right shoulder injury, and that he:
“also developed neck pain. I was in a sling for a long time and I believe that is the catalyst and it is now confirmed that I have a crushed nerve at C 4-5. I am seeing Simon McKechnie, neurosurgeon and I have had cortisone injection already paid for by EML. It was effective for about two weeks but not after that and then it has come back”.[9]
[9] Respondent’s AALD dated 12 February 2021, p 14.
The medical evidence
In support of his claim for 37% WPI, the appellant relied on the medical opinion of Dr Medhat Guirgis, consultant orthopaedic surgeon, dated 26 June 2019.[10]
[10] Respondent’s AALD dated 12 February 2021, p 34.
Dr Guirgis takes a history of the appellant injuring his right shoulder on 1 February 2018 after stacking boxes onto a pallet, noting these were duties the appellant had engaged in since 2013. The appellant informed Dr Guirgis that on “busy day they would handle some 160 similar boxes stacking them on top of each other onto a pallet”, and that “since the initial incident the pain in his right shoulder extended to involve the top of his right shoulder blade and adjoining area of his neck … this right sided neck pain and stiffness continued to slowly worsen as time passed and on presentation, he continued to complain of neck pain and stiffness with radiation into the right and left shoulders …”. The appellant was referred to Dr McKechnie who administered a CT guided C4/5 injection which was of benefit for only two weeks.[11]
[11] Respondent’s AALD dated 12 February 2021, pp 34–35.
Dr Guirgis’ opined that the incident on 1 February 2018 caused “post-traumatic mechanical derangement of the cervical area of the spine. This was caused by musculo-ligamentous sprain/strain with C4-5 intervertebral discophytic involvement. This had also triggered and aggravated the effects of underlying asymptomatic age appropriate degenerative changes. Such changes would render the spine more vulnerable to the effect of the traumatic stresses generated by an accident like the one described.”[12]
[12] Respondent’s AALD dated 12 February 2021, pp 40–41.
In diagnosing the appellant’s right shoulder injury, Dr Guirgis also considered the cervical spine, stating that “the nature and conditions of [the appellant’s] employment since 2013, including excessive loading of his shoulders and neck, would gradually, but progressively, reduce the tissue failure tolerance …”.[13]
[13] Respondent’s AALD dated 12 February 2021, p 39.
In assessing the appellant’s WPI, Dr Guirgis turned to the question of whether the “acute presentation in [the appellant’s] right shoulder and the consequential problems in his left shoulder and in his neck could have happened without the traumatic incident that happened on 1 February 2018”. To this, Dr Guirgis answered:
“No – but what happened on 1 February 2018 representing [sic] ‘the straw that broke the camel’s back’ and it would need an equally abnormal extra-loading stress to the shoulder joint to produce the same effects”.[14]
[14] Respondent’s AALD dated 12 February 2021, pp 41–42.
In considering the causative factors to the cervical spine injury, Dr Guirgis apportioned 10% to the incident of 1 February 2018 and 90% to the “nature of employment”.
The doctor assessed 6% WPI in respect of the cervical spine, pursuant to DRE Cervical Category II. This assessment, combined with 9% WPI of the left upper extremity, 22% WPI of the right upper extremity, and 2% WPI for scarring resulted in a total assessment of 37% WPI.
The 2021 proceedings
The pleaded injury and claim
On 28 September 2020, approximately 11 months after the 2019 COD was issued, the appellant served on the respondent’s insurer a notice of claim for 46% WPI, relying on the medical reports of Dr Endrey-Walder dated 17 September 2020. Like the 2019 letter of claim, the letter does not provide particulars of injury, although it is apparent that the nature of the injuries pleaded were those contained in the opinion of Dr Endrey-Walder. The letter also requests that the denial of liability for the appellant’s cervical spine injury be revoked.
In response, on 5 January 2021, the respondent’s insurer offered the appellant lump sum compensation pursuant to s 66 of the 1987 Act in the sum of $29,410.00 for 13% WPI in respect of the right shoulder only, as assessed by Dr Bosanquet. This offer was not accepted.
The appellant instead commenced proceedings, lodging an ARD (178/21) on 14 January 2021 (the 2021 ARD) claiming $161,430 for 46% WPI with respect to the right upper extremity, left upper extremity, the cervical spine, and scarring. At page 2 of the 2021 ARD, the only matter in dispute is “lump sum compensation where degree of permanent impairment is in dispute”. The 2021 ARD also cites the 2019 proceedings as having been taken in relation to the injury and/or condition.
This time, the injury pleaded is a “disease” with the same date of injury of 1 February 2021. Under the heading “Injury Details - 1/02/2018”, the cause of injury is described in the following terms:
“As a result of the nature and conditions of the [appellant’s] employment combined with an incident at work on 1 February 2018, the [appellant] sustained physical injuries to his right shoulder. As a result of overuse and overcompensation, the [appellant] has sustained consequential injuries to his left shoulder and neck. He has also sustained scarring as a result of the surgeries.”[15]
[15] ARD, p 7.
The respondent lodged a reply to the ARD on 4 February 2021. In its reply, the respondent sought leave to raise a dispute of the WPI claim in respect of the cervical spine on the grounds of estoppel and/or res judicata based on the 2019 proceedings and the 2019 COD.
On 4 February 2021, the appellant’s legal representative, Walker Law Group, wrote to the Commission’s Registry requesting that the matter be listed for a teleconference before a Member to address the dispute raised in the reply. In support of that request, the appellant provided a letter addressed to the respondent’s legal representative, dated 4 February 2021, expressing disagreement with its dispute, stating that the “prior proceedings in the WCC under matter number 4673/19 were based on a ‘personal’ injury with pleaded date 1/2/2018. These current proceedings are based on a ‘disease’ injury with nature and conditions of employment pleaded in conjunction with the 1/2/2018 date”. The letter refers to the medical opinion of Dr Endrey-Walder dated 17 September 2020 and asserts that the doctor “makes clear the relationship between nature and conditions of our client’s employment and his injuries”. Walker Law Group further states that a notice pursuant to s 78 of the 1998 Act was not issued in respect of either the cervical spine or left shoulder (which I note is a contrary assertion to that stated in the letter of claim in which they request that the cervical spine dispute be revoked, see [27] above).
On 9 February 2021 the appellant lodged an Application to Admit Late Documents containing an amended ARD which changed the 2021 ARD’s “Injury Details”, describing the appellant’s cervical spine injury in the following terms:
“As a result of the nature and conditions of his employment from 2013 to 12 December 2018, the [appellant] sustained physical injuries to his neck. In the alternative, as a result of overuse, overcompensation and overload following on from the right and left shoulder injuries and surgeries, the [appellant] sustained consequential injuries to his neck.”[16]
[16] Appellant’s AALD dated 9 February 2021, p 1.
The statement evidence
The appellant provided two statements in the 2021 proceedings.
In a statement dated 13 January 2021, the appellant describes the nature and conditions of his employment with UPS as “very heavy and arduous”.[17] He says that he was required to do a “lot of picking and packing”, lifting and handling boxes up to 30kg and stacking them on pallets, as well as forklift duties. The appellant provides detail of the incident on 1 February 2018 causing his right shoulder injury, and describes the consequential pain arising in his left shoulder.
[17] ARD, p 1, [4].
At [22], the appellant recalls beginning to develop “significant pain in the neck … due to the condition with my shoulders and the extra strain and tension being placed on the neck.” The appellant says that an MRI of the cervical spine conducted on 12 November 2018 revealed pathology, and he was therefore referred to Dr Simon McKechnie, neurosurgeon, who first examined him on 28 February 2019. He received an injection to his cervical spine on 26 March 2019. The appellant states that prior to his employment with UPS, he had not experienced any pain or injury to his shoulders or his cervical spine.
At the time of lodging the amended ARD, the appellant provided an updated statement dated 9 February 2021 in which he clarified the nature of his cervical spine injury.[18] Specifically, the appellant states that the nature and conditions of his employment “impacted both of my shoulders and also my neck” (emphasis added). He describes repetitive manual handling of heavy boxes and stacking them onto pallets over the years. The appellant also clarifies that he experienced neck pain and headaches almost immediately after the incident on 1 February 2018, which he says worsened over time, particularly following the left shoulder surgery in February 2020.
[18] Appellant’s AALD dated 9 February 2021, p 2.
The medical evidence
The appellant primarily relies on the medical opinion of Dr Endrey-Walder, general and trauma surgeon in the 2021 proceedings, dated 17 September 2020.[19] Whilst not entirely clear upon reading Dr Guirgis’ report, it appears that Dr Endrey-Walder was provided with much of the same evidence as Dr Guirgis, with the addition of updated treating medical reports and investigations administered following Dr Guirgis’ examination.
[19] ARD, p 14.
In this report, the doctor describes the nature of the appellant’s duties as physically demanding. Dr Endrey-Walder confirms the incident on 1 February 2018 where the appellant experienced severe right shoulder pain in the course of his duties. The appellant informs Dr Endrey-Walder that he came under the care of Dr Balasingham in late 2018 to complain of “on-going neck pain”, but that he had already reported this pain to a doctor shortly after the injury. The appellant informs Dr Endrey-Walder that he was referred to Dr McKechnie in early 2019, who raised concerns about radiculopathy from the left C5 nerve root. Dr McKechnie administered an injection to the C5 nerve root on 27 March 2019 which improved the appellant’s symptoms, but he was referred to Dr McKechnie again on 1 June 2020 and was offered the option of another injection or cervical decompression. Specifically, the appellant tells Dr Endrey-Walder that he experienced cervical spine pain soon after the first incident, and then experienced burning pain in his spine following his left shoulder operation in 2020.[20]
[20] ARD, p 18.
Dr Endrey-Walder considered the MRI reports of the appellant’s cervical spine, dated 12 November 2018 (incorrectly referred to as “12.11.2019”) and 13 August 2020. Both reports were indicative of a broad-based disc bulge impacting the left foramen and impingement of the left C5 nerve root.
In diagnosing the appellant’s cervical spine injury, Dr Endrey-Walder provides the following opinion:
“While the first mention that I have seen in the clinical notes regarding his neck pain relates to his complaint to Dr Balasingham in November 2018, it was his testimony, as noted above, that he had already complained of neck pain at the time of the initial right shoulder injury. [21]
He certainly has an almost single level cervical spine pathology at C4-5, where disc prominence and reactive osteophytic changes have impacted on the neural exit foramen especially on the left side, giving rise to intermittent symptoms of likely radiculopathy.
I believe that the nature and conditions of his work, the extra strain on the neck on account of the shoulder related difficulties, are significant contributing factors to his current neck pain and the documented restriction in the range of movement at the neck.” (emphasis added)[22]
[21] This is corroborated in a referral letter served in the Appellant’s AALD dated 19 February 2021. Dr Balasingham of Woodville Road Medical Centre referred the appellant to Dr Gobind Krishna in a letter dated 11 February 2021 for abdominal pain. Whilst unrelated to the matter at hand, the “past history” provided to Dr Krishna includes “neck pain with radiculopathy” on 4 February 2018, days after the incident on 1 February 2018. The clinical records of Merrylands Family Practice served in the 2019 ARD also reveal earlier complaints of neck pain dating back to 30 April 2018, with the doctor suspecting it may have been caused by his right shoulder injury (page 56 of the Respondent’s AALD dated 12 February 2021).
[22] ARD, pp 20–21.
I consider this noteworthy, as Dr Endrey-Walder appears to have reached a similar conclusion to Dr Guirgis in that a significant causative factor of the appellant’s cervical spine injury is the nature and conditions of employment.
Likewise, Dr Endrey-Walder also assesses the appellant’s cervical spine at 6% WPI pursuant to DRE Category II. The difference in both doctors’ total assessment of WPI is accounted for in the other body parts, with Dr Endrey-Walder assessing 23% WPI with respect to the right shoulder, 24% WPI with respect to the left shoulder, and 1% WPI with respect to scarring. Combined, Dr Endrey-Walder’s assessment of the appellant’s WPI is 46%.
Dr McKechnie’s reports are contained in the 2021 ARD.[23] As reported by both Dr Guirgis and Dr Endrey-Walder, Dr McKechnie first examined the appellant in respect of his complaints to the cervical spine on 28 February 2019. Whilst Dr McKechnie does not provide an opinion on causation, the appellant tells Dr McKechnie that he experienced pain in his neck at the time of the incident on 1 February 2018, which has continued. This mechanism of injury is repeated in all of Dr McKechnie’s subsequent reports.
[23] ARD, pp 52–57.
The respondent has relied on medical reports of Dr John Bosanquet, orthopaedic surgeon, dated 29 June 2019 and 12 November 2020.[24] I have not placed weight on Dr Bosanquet’s opinion as the doctor does not consider that the appellant’s cervical spine injury is work-related. However, it is of interest that the doctor opines that the nature of the cervical spine condition is a degenerative disease (cervical spondylosis with C4/5 nerve root impingement). The doctor specifically provides the opinion that the appellant’s “cervical spine is constitutional and symptoms arising from that area are due to the deterioration of those underlying degenerative changes”.[25] These underlying degenerative changes are also recognised by Dr Guirgis.
[24] Reply, pp 5–12.
[25] Reply, p 9.
THE MEMBER’S REASONS
The Member had before him several issues requiring determination in the 2021 proceedings. These were:
“(a) Whether the [appellant] should have leave to rely upon the [amended ARD] (The First Issue).
(b) Whether the respondent should have leave to dispute previously unnotified matters pursuant to s 289A of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act - The Second Issue).
(c) Whether the [appellant] is estopped, by the principles in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 (Anshun), from making a claim on the basis of a disease injury for his cervical spine and left shoulder (the Third Issue).
(d) Whether the [appellant] is estopped by res judicata principles from making a claim on the basis of a disease injury to his cervical spine (The Fourth Issue).
(e) Whether the [appellant] has sustained a disease injury to his neck and/or left shoulder and/or right shoulder (The Fifth Issue).”[26]
[26] Reasons, [10].
Submissions
The parties were called to provide written submissions on the issues at hand. Noting the nature of the matters raised, I provide a detailed summary of the submissions considered by the Member, to give context to his reasoning.
The appellant submitted that leave should be granted to rely on the amended ARD, as the appellant’s case was clear on the evidence and as there was no prejudice to the respondent. The appellant was not opposed to allowing the respondent to dispute the matters raised in the reply.
The respondent argued that until the amended ARD was lodged, the proceedings did not pertain to a disease injury in the left shoulder or cervical spine, and they were therefore entitled to respond to the claim and raise that:
(a) the appellant is estopped by Anshun from claiming a disease injury in relation to his cervical spine and left shoulder;
(b) the appellant was estopped by virtue of res judicata principles from making a claim based on a disease injury to his cervical spine, and
(c) the appellant did not sustain disease injuries to his cervical spine and/or left shoulder and/or right shoulder.[27]
[27] Reasons, [44]–[45].
The appellant conceded a res judicata and issue estoppel in respect of any claim for WPI with respect to the cervical spine by way of a frank injury or as a consequential condition. However, his statements revealed that the nature and conditions of his employment had been physically demanding in the years prior to the incident, and that Dr Guirgis and Dr Endrey-Walder confirmed the nature of injury being a disease type injury in the shoulders and cervical spine arising from the nature and conditions of employment.[28]
[28] Reasons, [38]–[43].
In respect of res judicata, the respondent asserted that a consent judgment can create estoppels “only as to matters which are necessarily decided”,[29] and a reasonable person would have construed the 2019 COD to have decided the cervical spine issue with finality. Furthermore, a reasonable person would have also understood that the words “in respect of the allegation of injury … to the cervical spine” were intended to include a disease injury, particularly when construed in consideration of the opinion of Dr Guirgis. The appellant disagreed, submitting that the 2019 COD must be read in light of the pleadings which claimed a frank injury, and that the implication that they related to a cause of injury not pleaded belied common sense.
[29] Citing Rail Services Australia v Dimovski [2004] NSWCA 267; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, [186].
The respondent submitted that the medical opinion of Dr Guirgis relied on in the 2019 proceedings was evidence demonstrating that the nature and conditions of employment had caused a disease injury. Despite the s 78 notice dated 8 July 2019 disputing injury to the cervical spine and left shoulder following consideration of Dr Guirgis’ opinion that the injuries were a disease; the appellant chose not to plead or litigate a disease injury. To this, the appellant submitted that the s 78 notice did not place injury in issue.
The respondent relied upon the comments of McColl JA in Habib v Radio 2UE Sydney Pty Ltd,[30] and that it was unreasonable for the appellant not to plead and ventilate a disease injury in the 2019 proceedings. The dispute in the 2021 proceedings was the same as the 2019 proceedings, and there was no valid reason these were not pleaded or litigated at that time, noting that the medical opinions of Dr Endrey-Walder and Dr Guirgis were premised on a similar history, and made similar findings.
[30] [2009] NSWCA 231, [81]–[84] (Habib).
The appellant submitted that the only dispute to be determined in 2019 was the claim for the left shoulder surgery, and therefore it was not unreasonable that the disease injury to the cervical spine and left upper extremity were not pleaded. The appellant submitted that discontinuance of the lump sum claim meant Anshun estoppel did not apply, and that it would not align with the practice of the Commission to apply Anshun to “mechanisms of injuries and body parts, the liability for which was only required to be determined in respect of a claim that was discontinued and hence not so determined”. The appellant submitted that a “worker is entitled to pursue his rights independently”.
The respondent submitted, that in the alternative to the estoppel argument, the Commission should not be satisfied that the appellant had sustained disease injuries to his cervical spine or shoulders.
Findings
In regard to the First and Second Issues, the Member granted leave to the appellant to rely on the amended ARD, and granted leave to the respondent to raise the disputes previously un-notified pursuant to s 289A(4) of the 1998 Act.
In regard to the Third Issue, the Member determined that the appellant was estopped by Anshun from making a claim in the 2021 proceedings for a disease injury to the cervical spine on the basis of the nature and conditions of his employment; but was not estopped from making a claim on the basis of a disease injury to the left shoulder.
In reaching the conclusion for the cervical spine, the Member considered the principles in Fourmeninapub Pty Ltd v Booth,[31] Habib and Secretary, Department of Communities and Justice v Miller & Anor (No 5),[32] and assessed whether the claim made in the 2021 proceedings was so closely related to the 2019 proceedings that it would have been reasonably expected to have been raised at the time, having regard to the substance of the proceedings. The Member accepted the respondent’s submission that the disease injury was “integral to the dispute between the parties about injury”, noting that Dr Guirgis clearly described the nature of the disease injury and opined that the appellant’s injuries were 90% attributable to the nature and conditions of employment.[33]
[31] [2019] NSWWCCPD 25.
[32] [2020] NSWWCCPD 38 (Miller No 5).
[33] Reasons, [75].
The Member was of the view that not only Dr Guirgis suggested a disease injury; but so did Dr Bosanquet and Dr Herald (in respect of the shoulder). The Member also agreed with the respondent’s submission that Dr Endrey-Walder’s report was based on a similar history, and came to a similar finding, to that of Dr Guirgis.
At reasons [79], the Member states:
“I believe reliance on a disease type injury in the 2019 proceedings was very much a ‘point which properly belonged to the subject of (the 2019 proceedings), and which the … (applicant) … exercising reasonable diligence, might have brought forward at the time…” (cf Anshun at [598]; Habib at [81]). I also believe this is a ‘claim or issue … so connected with the subject matter of the (2019 proceedings) as to have made it unreasonable in the context of that … proceeding for the claim not to have been made or the issue not to have been raised in that proceeding’ (Tomlinson v Ramsey Food [Processing] Pty Ltd [2015] HCA 28; 256 CLR 507; 323 ALR1 at [22] – Tomlinson).”
The Member did not accept that discontinuance of the lump sum claim meant that Anshun estoppel should not apply, finding that this was an “overly technical” approach to the Third Issue as the doctrine of Anshun is concerned with substance and not form (Habib).[34] The Member referred to Ling v Commonwealth of Australia[35] in which it was held that all aspects of a case are to be examined when considering reasonableness, including the overlap of facts. The Member held that there was a “great overlap between the facts underlying the 2019 proceedings and the 2021 proceedings”, finding that they were “essentially the same”.[36]
[34] Reasons, [81].
[35] [1996] FCA 1646; 68 FCR 180, 184 (Ling).
[36] Reasons, [81]–[83].
The Member maintained that consent orders may create estoppel and may be considered for the purposes of determining whether subsequent proceedings would lead to conflicting judgments with respect to those matters “which are necessarily decided”.[37] The Member considered that it was clear that the parties intended for an injury to the cervical spine to be pleaded, and for there to be an award for the respondent in respect of the alleged injury and/or consequential injury to the cervical spine. The Member referred to the matter of Thompson v George Weston Foods Ltd[38] and held that it did not matter that the lump sum claim was discontinued as the consent determination “makes it clear enough that the applicant ‘could not succeed in gaining compensation for a consequential benefit’, including lump sum benefit notwithstanding that aspect of the proceeding being discontinued”.[39]
[37] Reasons, [85].
[38] [1990] NSWCC 18; 6 NSWCCR 370 (Thompson).
[39] Reasons, [86]–[87].
At [88], the Member referred to the importance of “public policy in the finality of litigation and the preservation of confidence in the administration of justice”, and determined that allowing the appellant to reframe his case in respect of the alleged injury or consequential injury to the cervical spine would produce “conflicting or contradictory judgments ‘though they may not be pronounced on the same cause of action as long as they appear to declare rights which are inconsistent in respect of the same transaction’.”[40]
[40] Citing Habib, [83]; Anshun, [603]–[604].
In determining the Fourth Issue, the Member concluded that the appellant would not have been estopped by virtue of res judicata from making a claim for a disease injury to the cervical spine. In coming to this view, the Member thought Miller No 5 to be analogous to the present case in that the cause of action in the 2019 proceedings was based on a s 4(a) injury, being “a separate and distinct cause of action” to the 2021 claim for a disease injury.[41]
[41] Reasons [93]–[95].
As the appellant was estopped, the Member did not deal with the question of whether the appellant sustained a disease injury to the cervical spine in the Fifth Issue. After consideration of the medical evidence, the Member determined that the appellant sustained a disease injury to his shoulders as a result of the nature and conditions of his employment and was not estopped from making this claim in the 2021 proceedings.[42]
[42] Reasons [96]–[104].
The Certificate of Determination issued on 10 May 2021 records:
“1. The applicant has leave to rely upon the Amended Application to Resolve a Dispute dated 9 February 2021.
2. The respondent is granted leave to dispute previously unnotified matters pursuant to s 289A of the Workplace Injury Management and Workers Compensation Act1998 – by being able to rely upon the “matters in dispute” raised in the Reply.
3. The [appellant] is estopped from making a claim in relation to his cervical spine on the basis of a disease injury- including by reference to the nature and conditions of his employment with the respondent.
4. The [appellant] is not estopped from making a claim in relation to his right and left shoulders on the basis of a disease injury – including by reference to the nature and conditions of his employment.
5. The claim with respect to permanent impairment pursuant to s 66 of the Workers Compensation Act 1987 is remitted to the President for referral to a Medical Assessor as follows:
(a)Assessment of whole person impairment pursuant to s 66 of the Workers Compensation Act 1987 as a result of injury to:
(i)Right upper extremity (shoulder): Date of injury 1 February 2018 (deemed) - and personal/frank injury);
(ii)Left upper extremity (shoulder): Date of injury: 1 February 2018, (deemed - disease) and 1 February 2018 (condition as a consequence of on right shoulder injury);
(iii)Scarring.
(b)The documents to be reviewed by the Medical Assessor are:
(i)Application to Resolve a Dispute including the Amended Application to Resolve a Dispute and attached documents;
(ii)Reply including attached documents;
(iii)Application to Admit Late Documents by the applicant, and
(iv)Application to Admit Late Documents by the respondent.”
GROUNDS OF APPEAL
The appellant advances four ground of appeal. They are:
Ground A: The Member erred in determining that a disease injury to the cervical spine was a “claim or issue” so connected with the subject matter of the 2019 proceedings so as to have made it unreasonable not to have been raised in those proceedings.
Grounds B: The Member erred at law in determining the issue of Anshun estoppel without regard to the discontinuance of the lump sum claim in the 2019 proceedings.
Ground C: The Arbitrator erred at law in applying principles of issue estoppel to the determination of the question of Anshun estoppel.
Ground D: The Member erred in law and fact in determining that there would be the creation of conflicting or contradictory judgments.
LEGISLATION
Section 4 of the 1987 Act provides:
4 Definition of “injury”
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT
For the appellant to succeed, error must be established. Section 352(5) of the 1998 Act provides as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The nature of an appeal has been reviewed in various decisions. Perhaps the most well-known and uncontroversial description of the appellate task is described by Roche DP in Raulston v Toll Pty Ltd.[43] I refer to and rely on that decision, in particular paragraph [19].
SUBMISSIONS
[43] [2011] NSWWCCPD 25; 10 DDCR 156, [17]–[30].
Appellant’s submissions
I will deal with the details of what is submitted in each appeal point in the discussion section below. Broadly, the appellant alleges that the Member erred in his consideration and application of the Anshun principles in finding that the appellant was estopped from making a claim to his cervical spine on the basis of a disease injury, including by reference to the nature and conditions of his employment with the respondent.
In Ground A, the appellant asserts that the 2019 proceedings were concerned with compensatory relief, and not a claim or issue in respect of the disease injury to the cervical spine. It is submitted that the Member’s conclusion requires workers to bring all potential disputes to the Commission even if not relevant to the final relief claimed, and that any cervical spine dispute “ceased to become a ‘claim or issue’ connected with the subject matter of the proceedings once the lump sum claim was discontinued”.[44]
[44] Appellant’s submissions, [7]–[9].
In Ground B, the appellant’s submission is that the Member erred by “not determining that the discontinuance of the lump sum claim was a bar to Anshun estoppel in circumstances where no other relief concerning that body part was claimed”. The appellant argues that once the lump sum claim had been removed, there was no need to plead injury to the cervical spine.[45]
[45] Appellant’s submissions, [10]–[18].
Finally, the appellant submits that the Member erred in applying Thompson, which concerned principles of issue estoppel and not Anshun estoppel (Ground C); and that the Member had failed to provide reasons to support his conclusion that circumstances of the proceedings gave rise to contradictory judgments (Ground D).
Respondent’s submissions
The respondent’s submission is that Ground A is misconceived. The respondent submits that it is not relevant to the evaluative enquiry required for an Anshun estoppel that the 2019 lump sum claim did not relate to a disease injury. The respondent referred to [81]–[82] of Habib, wherein McColl JA stated that the Anshun estoppel principle:
“operates ‘not only [in respect of] 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 been brought forward at the time’…
Thus Anshun estoppel introduces ‘an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings’…”.[46]
[46] Respondent’s submissions, [24].
In response to Ground B, the respondent argues that the appellant has failed to establish an error of the kind identified in House v The King.[47] The respondent maintains that the issue of a disease injury to the cervical spine belonged to the 2019 proceedings and failing to bring the claim was unreasonable in circumstances where the appellant, if exercising reasonable diligence, might have brought it forward at the time. The respondent relies on Miller No 5 at [194] wherein it is stated:
“every decision in a workers compensation matter to litigate separate claims will always be permissible from an Anshun point of view. Rather, such a decision will only give rise to an Anshun estoppel if it was unreasonable not to have pleaded this cause in the earlier action.”[48]
[47] (1936) 55 CLR 499 at 504–505 (House).
[48] Respondent’s submissions, [41].
The respondent considers that the Member’s findings demonstrated this principle at [82]–[84] of the reasons, and ultimately, it was open to the Member to find estoppel having regard to his reasons as a whole (Beale v GIO (NSW) (1997) NSWLR 430 at 443-444).[49]
[49] Respondent’s submissions, [50].
In considering Ground C, the respondent disagrees that the Member incorrectly applied the principles of issue estoppel to the determination of the question of Anshun estoppel by referring to Thompson. The respondent submits that the Member’s reference to the case simply contextualised the assertion that it was unreasonable for the appellant to not have pursued a disease claim in relation to the cervical spine.
Finally, the respondent submits that the error alleged at Ground D was not an error of substance, as the existence of conflicting judgments is not a mandatory element of Anshun estoppel. It is only a relevant factor, and the Member’s findings in relation to conflicting judgments were not the sole reason relied on by the Member in concluding that the appellant was estopped. The respondent maintains, that in any event, a conflict arises by virtue of there being no claim for the disease injury to the cervical spine in the 2019 proceedings, whereas in the 2021 proceedings, the appellant had sought to allege such a claim was available.[50]
[50] Respondent’s submissions, [62]–[69].
DISCUSSION
Before turning to each of the four appeal points, it is necessary to set out the principles as they relate to Anshun estoppel and its application in workers compensation matters.
In Anshun, the following circumstances were existent. Anshun Pty Ltd (Anshun) had hired a crane from the Port of Melbourne Authority (the Authority). This hiring was governed by an agreement by which Anshun agreed to indemnify the Authority against all actions in relation to injury or loss of life related to the use of the crane. A worker was injured in the course of his employment when a load of girders being handled by the crane fell on him. The workman sued the Authority and Anshun for damages and negligence. Both defendants claimed contribution from one another, but the Authority did not in its defence plead its contractual right to an indemnity. The worker recovered damages and the Court ordered that Anshun should recover contribution from the Authority to the extent of 90% of the damages and the Authority from Anshun in the amount of 10%. The Authority later brought a second action against Anshun pleading its rights under the contractual indemnity. The question that arose for consideration was whether or not the Authority was estopped from maintaining this second action based upon the indemnity.
In not permitting the Authority to maintain its claim based upon the contractual indemnity, the plurality found as follows:
“In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. See the illustrations given in Cromwell v County of Sac.(1876) 94 US (24 Law Ed, at p 199).
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.”[51]
[51] Anshun, 602–603, per Gibbs CJ, Mason, Aickin JJ.
In terms of conflicting judgments, the High Court said as follows:
“By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.
It is for this reason that we regard the judgment that the Authority seeks to obtain as one which would conflict with the existing judgment, though the new judgment would be based on a different cause of action, a contractual indemnity.”[52]
[52] Anshun, 603–604.
The Anshun principle has been considered in a number of cases. Notably in Habib McColl JA (Giles and Campbell JJA agreeing) said as follows regarding Anshun estoppel:
“The principle commonly referred to as Anshun estoppel, established in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; [1843-60] ER 313 (at 319)), involves an extended doctrine of res judicata. It operates ‘not only [in respect of] 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’: Anshun (at 598) per Gibbs CJ, Mason and Aickin JJ. There will be an estoppel if it appears that ‘the matter relied upon ... in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it’: Anshun (at 602). The test is one of reasonableness. Gibbs CJ, Mason and Aickin JJ rejected (at 602) Lord Kilbrandon’s formulation of the test in Yat Tung (at 590) that it was ‘an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings’.”[53] (emphasis added)
[53] Habib, [81].
Further in Habib, McColl JA described the approach to Anshun at [82]–[87]. In these passages her Honour describes Anshun as “an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings”[54] (emphasis added) and that an Anshun estoppel will apply even though the parties to the second proceedings are not the same as the first.
[54] Habib, [82].
In Habib at [84] her Honour said as follows:
“A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form”.
And further at [85] of Habib her Honour provides the following warning:
“shut[ting] out a claim ... a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation ... is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’”.
I have previously discussed the application of the Anshun principle in the context of workers compensation matters. In Miller No 5 the following discussion appeared at paragraphs [185] and following:
“185. Finally, when considering the application of the Anshun estoppel principle in cases before the Commission, the statutory framework pursuant to which the Commission undertakes its functions is a relevant consideration. The respondents to the appeal have referred to some of them, for example s 354(1) of the 1998 Act: ‘Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits’ and s 354(3) of the 1998 Act: ‘The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.’ Reference is also made to the reconsideration power contained in s 350(3) of the 1998 Act, as well as the power contained in s 378(1) of the 1998 Act with respect to the reconsideration of the decisions of the Registrar or an Appeal Panel.
186. I would make one addition to this list, which for the purposes of a consideration of Anshun estoppel principles is also exceedingly relevant. Section 350(1) of the 1998 Act provides:
‘Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.’ (emphasis added)
187. The statutory scheme is that decisions, unless subject to a reconsideration application under s 350(3) or an appeal subject to s 352 of the 1998 Act, are final and binding. This is not surprising and reflects an important aspect of public policy in the finality of litigation and the preservation of confidence in the administration of justice. By administration of justice, I would remark that this not only includes the finality of litigation and the prohibition on conflicting judgments, but also the burden upon both a defendant and the court and tribunal system in having to determine disputes arising from a common substratum of facts twice in the same cause. Whilst I will deal with aspects of the respondent’s submissions regarding the Anshun principle in Commission proceedings, it is apparent from a consideration of both the statutory scheme and the principles that I have elucidated above, that Anshun estoppel is a legal principle which is available for use to defend applications brought before the Commission. Indeed in a recent Presidential decision, Deputy President Wood examined the history of Anshun estoppel in the context of the New South Wales workers compensation scheme. In Israel v Catering Industries (NSW) Pty Ltd,[55] the learned Deputy President set out at [114]–[119] various authorities, principally from the Compensation Court, dealing with the application of Anshun estoppel. It is clear from a consideration of those matters, as I have described above, Anshun estoppel is available for deployment in matters before the Commission. There is one difference between cases in the prior Compensation Court and in the present day Commission. The Compensation Court had a costs power, the Commission does not. One of the principles that the Compensation Court applied in determining Anshun estoppel was whether or not there should be a cost penalty. Given that there can be no cost penalty, that is not a factor which can be used to permit a subsequent action as the cost penalty would otherwise ameliorate the counter party’s burden. Thus, in the Commission as currently constituted, the incapacity to make a costs order means that an employer in the position of the appellant is in fact burdened with multiple costs defending a claim arising out of the same substratum of facts.
…
194. The mere fact that a party makes a choice to litigate a matter in other proceedings in and of itself is insufficient to ground an Anshun estoppel. This proposition has even greater resonance in the context of workers compensation cases given that the legislation does provide for various statutory benefits which can, quite properly, be asserted in different proceedings. But this does not mean that every decision in a workers compensation matter to litigate separate claims will always be permissible from an Anshun point of view. Rather, such a decision will only give rise to an Anshun estoppel if it was unreasonable not to have pleaded this cause in the earlier action. The principles distilled from the various authorities are neatly summarised by Judge Neilson in Bruce v Grocon Ltd[56] in the following terms:
‘The principles which I distil from these authorities are:
(a) the principle in [Anshun] extends to claims as well as to defences: O’Brien’s case in the Court of Appeal and Boles’ case;
(b) estoppel will arise if in second or further proceedings there would be a judgment inconsistent with a judgment in the first proceeding or the granting of remedies inconsistent with the remedy originally granted or the declaration of rights of parties inconsistently with the determination of those rights made in the earlier proceedings;
(c) the matter being agitated in the second or further proceedings must be relevant to the original proceeding; and
(d) it was unreasonable not to rely on that matter in the original proceedings; such unreasonableness would depend on the facts of each particular case: Boles’ case.’”
[55] 2017 NSWWCCPD 53.
[56] [1995] NSWCC 10; 11 NSWCCR 247, 261–262.
Miller No 5 was decided before the commencement of the 2020 Act.[57] Section 350 of the 1998 Act which I have referred to above was repealed and its modified version can be found in ss 56 and 57 of the 2020 Act. For the purposes of this argument however there is no material change to this provision which would alter or affect my remarks in Miller No 5 at [187]. The position under the 2020 Act is that decisions under the Workers Compensation Acts (as defined in s 5 of the 2020 Act) are final and binding except as provided for by the 2020 Act or the enabling legislation. There is no provision in the 2020 Act which would modify or derogate from the approach taken to questions of Anshun estoppel in the Personal Injury Commission’s legacy organisations, the Workers Compensation Commission or the Compensation Court before it.
[57] The Personal Injury Commission was established on 1 March 2021, s 6(3) of the 2020 Act.
Before I turn to deal with each of the four appeal points, I set out below a number of factual matters which are relevant to the consideration of this appeal. These matters are not in dispute. They are:
(a) The parties to the 2019 proceedings and 2021 proceedings are the same. In the 2019 proceedings, the appellant pursued, inter alia, a lump sum compensation claim (where the degree of permanent impairment was in dispute) with respect to his neck and left and right upper extremities. The percentage claimed in the 2019 proceedings was 37% WPI. In the 2021 proceedings, the appellant pursued a claim for lump sum compensation where liability was in dispute in relation to the same body parts as were pleaded in the 2019 proceedings. The percentage WPI claim pursued in the 2021 proceedings was in the amount of 46% WPI. While there is a difference in the percentage of WPI of the shoulders, both Drs Guirgis and Endrey-Walder assess 6% WPI with respect to the cervical spine, under DRE Category II.
(b) At all relevant times in both the 2019 proceedings and 2021 proceedings the appellant was legally represented. Indeed the legal representation of both parties was the same in both proceedings.
(c) The then Workers Compensation Commission and its successor, the Personal Injury Commission, are the tribunals of competent jurisdiction to hear and determine both applications which have been pursued by the appellant.
(d) By letter dated 28 June 2019, prior to the commencement of the 2019 proceedings, the appellant’s legal representatives made a claim under s 66 of the 1987 Act of 37% WPI. This was based upon a report of Dr Medhat Guirgis dated 26 June 2019 which was annexed to that correspondence.[58]
(e) Dr Guirgis’ assessment of 37% WPI included a component relating to the appellant’s cervical spine in the amount of 6% WPI. Of the total of 37% WPI, Dr Guirgis assessed that 90% of this figure related to the nature and conditions of the appellant’s employment, and 10% of the figure related to the incident which occurred on 1 February 2018.
[58] AALD 12 February 2021, p 15.
As to Ground A
The Member erred in determining that a disease injury to the cervical spine was a “claim or issue” so connected with the subject matter of the 2019 proceedings so as to have made it unreasonable not to have been raised in those proceedings
The essential argument pursued by the appellant under Ground A is this. The appellant asserts that originally, the 2019 proceedings only pleaded a consequential injury to the neck as a result of the frank injury on 1 February 2018. Consequently the 2019 COD discontinued the claim with respect to the neck whether on the basis of a frank or consequential injury. The appellant’s initial pleading in the 2019 proceedings is attached to the respondent’s reply in the 2021 proceedings commencing at p 31, and in terms of the injury description describes it thus. The date of injury is specified as 1 February 2018 and the description reads as follows:
“The Applicant suffered physical injuries to his right shoulder while at work. As a result of overcompensation, the Applicant suffered consequential injuries to his left shoulder and neck.”[59]
[59] Reply, p 35.
In the same ARD, three body parts are specified beneath the subheading “Permanent Impairment/Pain and Suffering”, they being the cervical spine, the left upper extremity and the right upper extremity claiming a total WPI of 37%.
In the settlement of the 2019 proceedings, by virtue of the consent orders made on 29 November 2019, the injury details I have just specified were amended in Determination 2 of the Certificate of Determination – Consent Orders as follows:
“2. Amend ‘Injury Details - 1/12/2018’ by adding after the words ‘right shoulder’ the words ‘cervical spine.’”
In the third order of the 2019 COD, the following is then entered by consent:
“3. Award in favour of the respondent in respect of the allegation of injury and/or consequential condition to the cervical spine.”
The argument of the appellant, so it goes, is that by virtue of the combination of these two consent orders, 2 and 3 of 29 November 2019, any dispute regarding the cervical spine thereby ceased to be a “claim or issue” connected with the subject matter of the proceedings. This it is said leads to an error on the part of the Member in finding that the injury pleaded in the 2021 proceedings relating to the neck was connected to the subject matter of the 2019 proceedings.
This is not an argument that can be sustained.
Firstly, the Member in finding at reasons [79] that the disease injury to the neck was a claim or issue connected with the subject matter of the 2019 proceedings, was exercising a discretion of the House type. In accordance with House, the appellant must prove as follows:
“It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so.”[60]
Nowhere has the appellant alleged, in terms, the nature of the error as is required by House. Rather, the appellant’s approach has been to analyse how the matter was pleaded and ultimately disposed of in an effort to make good the allegation that the neck claim was not a claim or issue connected with the 2019 proceedings. This does not assist in terms of revealing the necessary type of error.
[60] House 505.
Secondly, the problem with the appellant’s argument is that it concentrates on the ultimate conclusion in the 2019 proceedings rather than the principles associated with Anshun estoppel. As I have set out above, McColl JA in Habib described the doctrine as “being concerned with substance and not form”. The substance of the matter is clear. Prior to the commencement of the 2019 proceedings, the appellant was clearly suffering from pain and incapacity in his neck. Dr Guirgis provided an opinion that this was due to the nature and conditions of his employment with the respondent and this was the evidence that the appellant possessed prior to the commencement of the 2019 proceedings. The 2019 proceedings pursued, until their consent settlement, a claim in relation to a neck injury initially of a consequential nature, and then in the settlement encompassing a claim of frank injury on 1 February 2018. But at all times during the 2019 proceedings up until its resolution, the appellant was pursuing a claim which included a claim with respect to his neck. Indeed at all times during the 2019 proceedings, up until its resolution, the appellant was pursuing a lump sum compensation claim in relation to his neck. This is the same claim, albeit alleging a different mechanism of injury to the neck, that is being pursued in the 2021 proceedings.
Thirdly, the Member at reasons [83] made the following finding regarding the 2019 proceedings and the 2021 proceedings. After remarking upon what he considered to be some differences, he found this:
“But whether or not it was so available does not affect my opinion in this respect - which remains that the extent of the overlap between the facts in both sets of proceedings are more than great. They are essentially the same.” (emphasis added)
On this appeal, and in particular with respect to Ground A, there is no challenge to this finding. This is a significant finding from an Anshun point of view in terms of what the High Court said about conflicting judgments with respect to the same transaction.
Fourthly, at reasons [84], the Member referred to the remarks of Wilcox J in Ling about the relevance of any difficulties that existed or might reasonably have been perceived in raising the matter earlier. The Member remarked that “there is no explanation from the applicant about any such difficulties existing or being perceived.”[61] This, the Member identified, was a “minor” factor pointing towards it being unreasonable not to have relied upon disease injury on the 2019 proceedings. No challenge was made to this approach which ultimately led to, at reasons [89], the Member finding that the appellant was estopped from relying upon the disease injury claim to the neck in the 2021 proceedings. No challenge is made under this ground of appeal, nor in this appeal generally, that the finding of unreasonableness was made in error.
[61] Reasons, [84].
It is artificial, in the extreme, for the appellant to assert that the claim in relation to the neck injury was not a claim or issue connected with the 2019 proceedings. A claim in relation to a neck injury had been made by the appellant prior to the proceedings being commenced and then at all times during the proceedings up to their eventual resolution on 29 November 2019. Up until this point the appellant had pursued a lump sum compensation claim with respect to his neck. No error in the Member’s approach to dealing with this aspect has been identified.
The appellant asserts that were the Member’s reasoning to be accepted, it would require “[a]pplicants to bring all potential disputes before the [Personal Injury Commission], despite them not being relevant to the final relief claimed, just so that there can be no question of an Anshun estoppel arising when the claim or relief is discontinued.”[62] I do not accept this submission. As McColl JA described in Habib, Anshun is an “evaluative” exercise, “based upon what a litigant could reasonably have been expected to do in earlier proceedings”.[63] In this case, prior to the commencement of the 2019 proceedings, the appellant was possessed of evidence from its own qualified specialist, Dr Guirgis, that 90% of the appellant’s neck symptoms were due to the nature and conditions of his work with the respondent. This evidence was subsequently relied upon, along with other evidence, in the 2021 proceedings. It cannot be said that the appellant or his advisers were in any ignorance about the medical evidence regarding the appellant’s condition prior to and during the 2019 proceedings. As I stated in Miller No 5, it is certainly possible in the context of workers compensation cases to pursue different statutory benefits in different proceedings. However this does not mean that every decision in a workers compensation matter to litigate separate claims will always be permissible from an Anshun point of view.[64] The question is whether it was unreasonable not to have pleaded the cause in an earlier action.
[62] Appellant’s submissions, [8].
[63] Habib, [82].
[64] Miller No 5, [194].
As a consequence I do not accept this submission that the net effect of the Member’s reasoning would be to require that in every case, all of an applicant’s claims would have to be brought at once. Anshun is always a case by case consideration as to whether or not that principle applies to estop a claim. All the Member has done is to apply the principles in Anshun, as described and expanded upon in later cases such as Habib, in this case. It does not produce or represent any change to practice in this Commission or its predecessor organisations, nor does it represent any change in approach as to how the Anshun principle is applied.
Ground A is dismissed.
As to Ground B
The Member erred at law in determining the issue of Anshun estoppel without regard to the discontinuance of the lump sum claim in the 2019 proceedings
The appellant asserts that the Member’s error was this; the Member failed to determine that the discontinuance of the lump sum claim in the 2019 proceedings was in fact a bar to Anshun estoppel in the circumstances. The circumstances being that the appellant was not claiming relief with respect to the neck once the discontinuance had been made. The appellant goes on to say that the essence of the error in determining the Anshun estoppel was not considering the 2019 COD.[65]
[65] Appellant’s submissions, [18].
It is incorrect to assert, as the appellant has done, that the Member failed to consider the 2019 COD before deciding the Anshun estoppel question. At reasons [85] the Member considered the 2019 COD in detail. The Member carefully construed not only the text of the 2019 COD but conducted an examination of the facts and evidence that was available in the 2019 proceedings. This was done before the Member made the following finding at reasons [85]:
“I find it is clear that the parties necessarily intended or decided that an injury to the cervical spine was alleged by the applicant (and, by inference, disputed by the respondent), and for there to be an award for the respondent with respect to the alleged injury and/or consequential injury to the cervical spine. I appreciate that this at least may be said to be so with respect to a personal, rather than a disease injury.” (emphasis in original)
The Member then proceeds to deal with the issue of the discontinuance of the lump sum claim in the 2019 COD.[66]
[66] Reasons, [87].
It is my view that whilst it was proper and appropriate for the 2019 COD to be examined in detail, as the Member did, the contents of that document do not alter or change the Member’s task in assessing whether or not an Anshun estoppel arises in the circumstances. Without repeating what I have set out above regarding Anshun estoppel, the Member had to consider whether or not the point raised in the 2021 proceedings was a “point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”[67]
[67] Habib, [81].
The Member has to consider whether it was reasonable or not to have pursued the case regarding the appellant’s neck in the earlier proceeding. In so doing the Member undertook the evaluative exercise as described by McColl JA in Habib. To focus upon the 2019 COD, as the appellant asserts in this appeal ground, as being determinative in and of itself is incorrect.
Further, I note that the appellant asserts that the discontinuance of the lump sum claim in relation to the neck actually represented a bar to the Anshun estoppel. This argument, that the resolution of the matter as reflected in the 2019 COD was a “bar” to making an Anshun order, was not a point argued or taken before the Member. By definition, the Member cannot have been in error at law as is asserted by the appellant[68] in relation to an argument that was not put in terms to the Member.[69]
[68] Appellant’s submissions, [11].
[69] Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111.
The essential argument under Ground B really alleges a House type error on the part of the Member, namely a failure to consider the 2019 COD. For the reasons I have outlined above, no such error existed as the Member plainly did carefully consider and construe the consent orders of the 2019 COD. There has therefore been no error of the House type to consider relevant matters.
Ground B has not been established, no error having been identified. Ground B is as a consequence dismissed.
As to Ground C
The Arbitrator erred at law in applying principles of issue estoppel to the determination of the question of Anshun estoppel
The appellant’s argument under this appeal ground can be simply stated. At reasons [86]–[87], the Member is dealing with the various submissions which were put by the parties and made reference to the decision in Thompson. It is true that Thompson was a case which dealt with issue estoppel. However, contrary to the appellant’s submission under this ground, Thompson was not relied upon in terms of the principles it espoused regarding issue estoppel.
The Member stated that an injury, whether by way of disease or personal injury, is the underpinning foundation for entitlement to benefits under the 1987 Act.[70] Thompson is then given as an example to make good this point. I accept the respondent’s submissions that “this was done to contextualise the submissions made on the Respondent’s behalf as to why it was unreasonable for the Appellant to have not pursued a claim in relation to, inter alia, a disease injury to the cervical spine.”[71] Reading the decision as a whole,[72] it is abundantly clear that the Member has carefully considered the Anshun line of authority and has applied it in finding that the appellant is estopped from relying upon a disease injury claim to his neck in the 2021 proceedings. This decision, as can be seen from a fair reading of the judgment, was made on the basis of the Anshun principles, not principles pertaining to issue estoppel.
[70] Reasons, [86].
[71] Respondent’s submissions, [57].
[72] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.
For this reason, I also accept the respondent’s submission that even if this alleged error had been made, which it has not, such an error is immaterial to the result.[73] It is immaterial because ultimately when one considers the Member’s reasons as a whole, it is clear that the Anshun principle has been considered and applied.
[73] Respondent’s submissions, [60].
Ground C has not been established and is consequently dismissed.
As to Ground D
The Member erred in law and fact in determining that there would be the creation of conflicting or contradictory judgments
The appellant’s argument with respect to Ground D concentrates upon what had been pleaded in the 2019 proceedings as opposed to the 2021 proceedings. In the 2019 proceedings, the appellant had originally pleaded a consequential injury to the neck[74] and in the 2019 COD resolved that case by way of an award to the respondent with respect to the allegation of a frank injury on 1 December 2018 as well as a consequential condition to the neck. The appellant says this is a completely different case to the one pursued in the 2021 proceedings, which was a disease claim said to have been caused by the nature and conditions of the appellant’s employment with the respondent.
[74] Reply, p 35.
In making this distinction, effectively the appellant is arguing that different causes of action were pursued in the 2019 proceedings as opposed to the 2021 proceedings. As I have extracted from the decision in Anshun above, the High Court said:
“By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.”[75]
[75] Anshun, 603–604.
This finding of the High Court in Anshun is entirely relevant to a consideration of this appeal point. As I have described above at [99], the Member made a finding, which is not challenged on this appeal, that the two sets of proceedings were “essentially the same”.
The Member’s findings with regard to conflicting or contradictory judgments appear at reasons [88]. However the discussion regarding whether or not the subsequent proceedings would lead to conflicting judgments commenced at reasons [85]. In particular at reasons [85], the Member closely examined the 2019 COD to determine what were the parties’ necessary intentions in terms of the consent orders. No issue has been taken with the formulation at reasons [85] on this appeal. It is clear that by the time the Member got to reasons [88], he was well aware that the prospect of inconsistent, conflicting or contradictory judgments was a factor to be considered. This factor flows from, as the Member said, “the aspect of public policy in the finality of litigation and the preservation of confidence in the administration of justice.” The Member has quite rightly cited the passage from Anshun where the plurality discussed what it meant by conflicting judgments (set out above). With respect to the appellant, that aspect of Anshun is completely apposite to the circumstances in this case and the Member was correct to rely upon it. Further, I would not go so far as to say that the Member actually determined, as is alleged in this appeal ground, that there “would be the creation of conflicting or contradictory judgments”. Rather, having analysed the matter, he took this prospect into account when analysing what was described in his reasons as “the third issue”.
In truth what the appellant was attempting to do in the 2021 proceedings was to pursue rights in relation to the same transaction, albeit by a differently pleaded path. This is exactly what happened in Anshun and was an approach which found no favour with the High Court in that matter.
No error in approach on behalf of the Member has been identified and Ground D is dismissed.
DECISION
The Member has found that an aspect of the appellant’s claim, namely his disease claim in relation to his cervical spine based upon the nature and conditions of his employment with the respondent, is not able to be maintained due to the existence of an Anshun estoppel. As I have previously found in relation to claims under the workers compensation Acts, it is possible for various claims under that legislation to be pursued in different proceedings without engaging with the Anshun principle. However the Anshun principle does exist for deployment in workers compensation claims in appropriate cases. By appropriate cases I mean cases where after a consideration of the facts and the undertaking of the evaluative exercise referred to by McColl JA in Habib, the Anshun principles might then be enlivened. Unfortunately for the appellant in this case, the circumstances that have arisen have enlivened the Anshun principle in relation to his lump sum claim pertaining to his cervical spine. The Member has carefully considered the facts of the case and in particular the evidence that was available and known to the appellant and his advisers prior to and at all times during the conduct of the 2019 proceedings. The application of the Anshun principles by the Member has been in accordance with that authority and subsequent binding decisions which have explained and delineated the proper approach to Anshun estoppel. Far from an erroneous application of this principle, the Member has in a reasoned and meticulous manner applied the Anshun principle and in so doing has exercised his discretion in a way which does not engage in any error. Additionally as I have described above, the Member found that the proceedings were “essentially the same”[76] which as I have remarked above, is not a finding which has been challenged by the appellant. It was certainly a finding which on the evidence was open to the Member to make.
[76] Reasons, [83].
As a result, the appeal is dismissed and the Certificate of Determination dated 10 May 2021 is confirmed.
Judge Phillips
PRESIDENT
17 December 2021
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