Jovanovic v Berkeley Challenge
[2021] VMC 2
•11 February 2021
IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE
WORKERS COMPENSATION DIVISION OF COURT
Case No. L10458760
| ZORICA JOVANOVIC | Plaintiff |
| v | |
| BERKELEY CHALLENGE PTY LTD | Defendant |
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MAGISTRATE: | M A HOARE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 February 2021 |
DATE OF DECISION: | 11 February 2021 |
CASE MAY BE CITED AS: | Jovanovic v Berkeley Challenge |
MEDIUM NEUTRAL CITATION: | [2021] VMC 002 |
RULING
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CATCHWORDS – Workers Compensation – Rejection of Claim – Left hip injury – Earlier Proceeding between the Parties relating to Lower Back Injury and Psychological Injury throughout the course of employment and on 16 March 2015 dismissed by Court – Application by Defendant to Dismiss Current Proceeding – Anshun Estoppel relied upon by Defendant – Application refused – Workers Compensation Act 2013 (Vic),s.39(1) - Magistrates’ Court General Civil Procedure Rules 2020 (Vic), R 23.01
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APPEARANCES: | COUNSEL | SOLICITORS |
| For the Plaintiff | Ms McLeod | Slater and Gordon |
| For the Defendant | Ms Glass | Wisewould Mahoney |
HER HONOUR:
INTRODUCTION AND OVERVIEW
In its Amended Defence of 8 August 2020, Berkeley Challenge (‘Berkeley’), the defendant in this proceeding, has pleaded that Ms Jovanovic is estopped by the principles of Anshun estoppel from bringing the present action for relief with respect to a left hip injury.
Ms Jovanovic’s action, which is governed by the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’), relates to a left hip injury she claims was sustained throughout the course of her employment, and in an incident on or about 16 March 2015, with Berkeley.
The purported Anshun estoppel arises out of an earlier proceeding between the parties in this Court (Case #G11894467) which was finalised on 26 July 2017 (‘the earlier proceeding’). The defendant, in essence, makes application under Rule 23.01 of the Magistrates’ Court General Civil Procedure Rules 2020 (Vic) to dismiss the current proceeding on the basis that it is an abuse of process.
The application proceeded (via WebEx) as a one-day preliminary hearing. Oral and written submissions were delivered by both parties. Medical reports, including radiological reports, and claim documents were tendered into evidence by consent.
For the reasons that follow, the defendant’s application to dismiss the proceeding is itself dismissed.
NATURE AND PARTICULARS OF EARLIER AND CURRENT PROCEEDINGS
Ms Jovanovic, who is 62 years of age, was employed as a cleaner by Berkeley, between 1992 and 2015. She performed her duties as a cleaner, from the late 1990s onwards, entirely at Melbourne Grammar School.
On 23 March 2015, Ms Jovanovic lodged a claim for compensation for ‘lower back pain’ with a date of injury of 16 March 2015 (‘the first claim’). The injury circumstances were: ‘onset of sharp back pain after using a vacuum leaner before morning tea…’ Liability was accepted for the first claim. Ms Jovanovic then lodged a claim (dated 26 June 2016) for her lower back throughout the course of her employment and a claim for psychological injury. Those claims were rejected.
In 2016, the earlier proceeding was brought by Ms Jovanovic in relation to entitlements with respect to the spine/lower back and psychiatric injury. The earlier proceeding was dismissed by consent by order of this Court on 27 July 2017 with the defendant ordered to pay the plaintiff’s costs of the proceeding.
By Notice dated 17 July 2019, the Workcover agent rejected a request from Ms Jovanovic’s treating orthopaedic surgeon, Mr David Young, for approval, under the first claim, for a left total hip replacement. The grounds were that the Agent had accepted the lower back injury sustained in the course of employment, but had not accepted a claim for a left hip injury.
The Agent then terminated (by Notice dated 18 November 2019) Ms Jovanovic’s entitlement to weekly payments and medical and like expenses under the first claim on the grounds that her incapacity was no longer materially contributed to by an injury arising out of or in the course of employment and her claimed medical and like expenses ‘related to an injury which arose out of an event or circumstance which does not entitle you to compensation under the Act’.
The current proceeding was commenced in relation to both the rejected request for left hip surgery approval and the termination of entitlements under the first claim.
After Berkeley raising the Anshun Estoppel by way of its Amended Defence, Ms Jovanovic lodged a claim dated 14 October 2020 for her left hip (‘the left hip clam’). She claimed for a left hip injury on 16 March 2015 and throughout the course of her employment. The described circumstances were: ‘Regular heavy duties including carrying a vacuum cleaner and a slip and twist incident on stairs on 16.3.15’. The left hip claim was rejected (by Notice dated 12 November 2020) on the grounds that any entitlement related to a previous claim, that is the first claim. The rejected left hip claim was then joined to the current proceeding in accordance with s. 273(2) of the Act by Order of Magistrate Wright on 28 January 2021.
HISTORY OF LEFT HIP AND THE MEDICAL EVIDENCE
In order to determine Berkeley’s application to dismiss the current proceeding, and whether or not the facts give rise to an Anshun estoppel, it is necessary to briefly summarise the medical evidence relating to Ms Jovanovic’s left hip condition. The medical evidence, and particularly the chronology of events relating to Ms Jovanovic’s left hip, were the subject of submissions by both Counsel. That evidence may be summarised as follows:
(a) In about 2005, Ms Jovanovic underwent a right hip replacement performed by Mr David Young which was not the subject of a WorkCover claim.
(b) On 16 June 2015, Mr Young wrote to her GP, Dr Lifson, following a ten-year clinical review of the right hip. He noted a diagnosis of ‘early concentric osteoarthritis left hip’ and requested to see her again in two years’ time for review of the left hip.
(c) On 2 September 2015, Dr Richard Sullivan, treating pain specialist, reported to Ms Jovanovic’s solicitors that she presented with chronic pain of an organic basis, lower back pain, left-sided hip pain and left sciatica.
(d) On 6 November 2015, Dr Sullivan wrote to Dr Lifson advising he would be referring Ms Jovanovic to an orthopaedic specialist for a second opinion regarding her left hip inflammation.
(e) On 13 June 2017, a bilateral hip x-ray demonstrated severe pole degenerative change of the left hip.
(f) On 13 June 2017, Mr Young wrote to Dr Lifson, opining that her major problem was her osteoarthritic left hip for which a total left hip replacement was recommended. Mr Young wrote that Ms Jovanovic had told him (incorrectly) that ‘her back and hip are under a WorkCover claim’.
(g) On 14 June 2017, Dr Lifson (in a clinical note of Altona Meadows Family Medical Clinic) recorded: ‘Seen David Young – L hip OA / Given injection à better/ but back unchanged / Needs THR / Wonders if hip related to fall too / Says when slipped caused this / possibly due to this’.
(h) On 19 July 2017, Dr Lifson prepared a report for Ms Jovanovic’s solicitors in relation to her back condition and psychiatric condition and made no reference to any left hip condition.
(i) Mr John O’Brien, orthopaedic surgeon, provided a report dated 20 June 2017 for medico-legal purposes to Ms Jovanovic’s solicitors. That report was date-stamped ’19 July 2017’ (indicating receipt by her solicitors on that date). Under the heading ‘Past History’, Mr O’Brien discusses the prior medical history of the right hip replacement. He also obtained a history from Ms Jovanovic that ‘since the onset of her back and left leg pain she has had increasing pain in the left hip’. He noted that she had been further reviewed by the treating surgeon, Mr Young, who had diagnosed osteoarthritis of the left hip for which surgery would be required in the future.
(j) On 28 July 2017 (two days after the finalisation of the earlier proceeding), Ms Jovanovic attended on Dr Lifson who recorded in clinical notes: ‘Court Wed à med Rx until Feb / Also needs super form filled in / Frustrated as they stated the L leg pain not related as no one mentioned this / Explained all in my notes’.
RELEVANT CASE LAW
The principles of Anshun estoppel[1], and both its applicability to, and the need for exercising caution in the context of, the workers compensation scheme was discussed by Magistrate Wright in Stankovic v Steelfield Victoria Pty Ltd.[2] As Magistrate Wright observed, caution is required because, by their very nature, ‘workers compensation cases are different to other civil cases and even common law personal injury cases’.[3]
[1] The Anshun Estoppel principles arises from Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 41
[2] [2013] VMC 5 (21 March 2013)
[3] Ibid at [51]
As Counsel for the plaintiff noted in submissions[4], the guiding principles of Anshun estoppel from Stankovic were then summarised by Magistrate Garnett in Robinson v Woolworths Ltd[5]. They are:
a. Such a finding should be exercised with caution, and only in the most exceptional case;
b. The onus is a heavy one and a finding of an Anshun estoppel should not be made lightly and is to be applied only in the clearest cases as it ends a litigant’s right to have the merits of their claim adjudicated and may result in a serious injustice if it is applied too readily;
c. The court should not take a superficial approach and simply look at whether the parties are the same and the cause of action similar;
d. There may be a variety of circumstances in which a party may justifiably refrain from litigating an issue in one proceeding but may wish to litigate in a subsequent proceeding;
e. The risk of inconsistent judgments is the most important factor going to the existence of the Anshun principle;
f. When looking at the issue of reasonableness, other issues including: the character of the previous proceeding, the scope of any pleadings, the length and complexity of any trial, any real or reasonably perceived difficulties in raising the relevant claim earlier and any other explanation for the failure to raise the claim previously should be considered.
[4] Outline of Plaintiff’s Submissions at [39]
[5] [2015] VMC 33 at [11]
The issue of reasonableness in all the circumstances was elaborated upon in Gibbs v Kinna.[6] More recently, as Counsel for the plaintiff noted in submissions[7], the Court of Appeal in Slaveska v State of Victoria[8] emphasised both the need for Courts to exercise ‘great caution before finding that an Anshun estoppel operates’ and ‘the heavy burden’ faced by litigants in applying for an Anshun estoppel[9].
DEFENDANT’S SUBMISSIONS
[6] [1998] VSCA 52
[7] Outline of Plaintiff’s Submissions at [36]
[8] [2015] VSCA 140
[9] Ibid at [223]
Counsel for the defendant submitted that Ms Jovanovic is estopped from pursuing her current cause of action because it was unreasonable, in all the circumstances, for her not to include her left hip condition in the earlier proceeding.
The left hip claim that is agitated in the current proceeding was, in accordance with the High Court’s statement in Anshun, ‘so relevant to the subject matter of the first action that it would have been unreasonable not to rely upon it’[10] The current proceeding was against the identical defendant as in the earlier proceeding. It concerned injury over the same period of employment and pleaded injury arising both throughout the course of employment and with respect to the same incident on a particular date, namely 16 March 2015.
[10] [1981] HCA 41 at p.596
Moreover, it was unreasonable for the plaintiff not to include the left hip in the earlier proceeding because, on the medical evidence then in existence, Ms Jovanovic (and her legal advisers) were aware of the nature and extent of her left hip condition. The defendant placed reliance, in this regard, upon the complaints of pain and diagnoses of left hip pathology contained in the correspondence of Dr Sullivan and Mr Young in 2015 and, in particular, upon:
· The clinical note of Ms Jovanovic’s discussion with Dr Lifson on 14 June 2017 when she ‘Wonders if hip related to fall too / Says when slipped caused this / possibly due to this’;
· Mr O’Brien’s medico-legal report (which, as I have noted, was in the possession of Ms Jovanovic’s legal advisers prior to the earlier proceeding being finalised) and the history he obtained of increasing left hip pain since the onset of the back and left leg pain.
· The clinical note of Ms Jovanovic expressing her apparent frustration to Dr Lifson on 28 July 2017 (two days after settlement of the earlier proceeding) that ‘they stated the L leg pain not related as no one mentioned this’
Counsel for the defendant submitted, further, that the principles of Anshun Estoppel ought be applied by the Court in appropriate cases to avoid the re-agitation of issues between parties as a matter of public policy. Counsel referred to the public policy principle as articulated by Magistrate Ginnane (as he then was) in Farrell v Francis & Ors[11] namely that parties should bring forward their whole case and Courts will not permit the same parties to open the same subject matter of litigation in respect of a matter which might have been brought forward as part of any earlier proceeding.
[11] [2017] VMC 21 at [79]
In essence, it was submitted, Ms Jovanovic has unreasonably failed to bring forward a matter that could, on the evidence, and ought properly have been part of the earlier proceeding. On that basis, her current action should be dismissed.
PLAINTIFF’S SUBMISSIONS
In relation to whether it was unreasonable for Ms Jovanovic not to include the left hip in the earlier proceeding, it was submitted for the plaintiff, there was simply insufficient evidence or opinion at that time to indicate that she was suffering from a left hip condition which arose out of or in the course of her employment in accordance with s.39 of the Act.
Counsel for the plaintiff submitted the following on the question of the reasonableness or unreasonableness of refraining from inclusion of the left hip in the earlier proceeding:
· Ms Jovanovic’s left hip symptoms had arisen in the context of her having previously undergone a right total hip replacement. She had experienced hip problems that pre-dated her compensable workplace injury.
· From the time of her workplace injury in 2015, Ms Jovanovic’s complaints to doctors were dominated by her low back pain and sciatic pain radiating into her left leg. Relevantly, Dr Lifson reported to Ms Jovanovic’s solicitors on 19 July 2017, one week prior to the hearing of the earlier proceeding, and in a detailed account, makes no mention of a work-related left hip condition.
· Whilst it was conceded Mr O’Brien had included a history of left hip symptoms, he gave no opinion as to there being a causal link between her left hip and her employment.
· Mr Young had made no correlation between the left hip condition and her back injury or her employment generally. Whilst surgery in the longer term was indicated, there was no plan for surgery at the time of the earlier proceeding.
· As at the date of hearing of the earlier proceeding (26 July 2017), the subpoenas issued to Dr Lifson and Dr Young were returnable on 23 September 2016 meaning no updated clinical materials were available to the plaintiff on the date of hearing.
· Inclusion of the left hip would have been ‘doomed to fail’ and thus her solicitors, had they agitated in relation to the left hip, would have been in breach of their obligations under the Civil Procedure Act 2010[12].
[12] Outline of Plaintiff’s Submissions at [52]
Counsel for the plaintiff submitted, in summary, that on the whole of the evidence in existence at the time, the left hip condition was not so relevant to the earlier proceeding, that it was unreasonable not to rely upon it at that stage.
Finally, it was submitted, as the earlier proceeding was resolved via negotiation, there was no risk of inconsistent judgments on the question of Ms Jovanovic’s entitlement to workers compensation against Berkeley.
ANALYSIS
The legal and evidentiary burden of proof in relation to this application rests with the defendant and, as the authorities make clear, it is a heavy one.
As a starting point in respect of the defendant’s application, the current proceeding is not only between the same parties as in the earlier proceeding. It is also in respect of the same period of Ms Jovanovic’s employment with Berkeley and pleads injury arising both throughout the course of employment, and on a particular date, namely 16 March 2015. However, the mere fact that the parties are the same and the cause of action similar is the sort of superficial approach that Courts must avoid in the application of the principles of Anshun estoppel.
The central issue for determination in this application is the reasonableness (or otherwise) of Ms Jovanovic refraining from agitating the left hip claim at the time of the earlier proceeding. That is because, on the evidence before this Court, there can be no question that Ms Jovanovic (and her legal advisers) had an awareness of her left hip condition at the time of the earlier proceeding. She had left hip pain and symptoms from at least 2015 as evidenced by Mr Young’s diagnosis of left hip pathology at the ten-year review of the right hip, her complaints to Dr Sullivan, the bilateral hip radiology in June 2017 and a recommendation of a total hip replacement in the future.
Whilst it is true Ms Jovanovic had such an awareness, at the time of the earlier proceeding, of left hip symptoms including a diagnosis and the prospect of future surgery, the test in applying an Anshun Estoppel is not whether it may have been open to her to then agitate as to the left hip. Rather, the test is whether it was unreasonable of Ms Jovanovic to defer reliance upon a cause of action in respect of the left hip at the time of the earlier proceeding.
In my view, and I accept the submissions of counsel for the plaintiff in this regard, the defendant has failed to discharge the onus of proof that it was so unreasonable in all the circumstances for Ms Jovanovic not to include her left hip injury that she should be precluded from including it her current proceedings. As the case law makes clear, there may be a variety of circumstances in which a party may justifiably refrain from litigating an issue in one proceeding but may wish to litigate in a subsequent proceeding. Plainly, in my opinion, a dearth of evidence or opinion, at the time of the earlier proceeding, of any causal link between the left hip condition and the worker’s employment is a reasonable justification for refraining from litigating on the left hip claim. In my view, that is particularly so in the circumstances of Ms Jovanovic’s left hip having become symptomatic in or around 2015 upon a background of previous right hip pathology (and prior right total hip replacement) in non-compensable circumstances. In my opinion, the absence of medical or other evidence as to a causal link between employment and the left hip was a justifiable, and entirely reasonable, basis for refraining from including the left hip in the earlier proceeding. I accept the submission for the plaintiff, that such a cause of action would have been, at that time, unlikely to succeed.
I also am guided by, and respectfully agree with, the observations of Magistrate Wright in Stankovic regarding the need for particular caution in considering whether to apply the Anshun estoppel in workers compensation cases[13]. Each case will always be determined on its own merits. Here, I am of the view that Ms Jovanovic’s circumstances in relation to her left hip condition are precisely the sort of ‘later and continuing developments’ commonly seen in workers’ compensation cases[14]. Those circumstances include the gradual progression over a period of some four years from an awareness in 2015 of left hip symptoms to the treating surgeon’s written request in 2019 for approval of a left total hip replacement.
[13] [2013] VMC 5 (21 March 2013) at [52]
[14] Ibid
A further persuasive matter, in view, is that the fact that the earlier proceeding was finalised by way of terms of settlement and was not adjudicated. There is accordingly no risk of inconsistent judgments which is a most important factor going to the existence of the Anshun principle.
Finally, and for the sake of completeness, I reject the defendant’s contention that there is a purported public policy principle that would provide any basis for application of the Anshun estoppel in a case such as this. Interestingly, in the case of Farrell v Francis[15] referred to by counsel for the Defendant, the Victorian WorkCover Authority had submitted that the Anshun principles either had no application or discretion should be exercised against applying them based on ‘public policy consideration’[16]. In this case, I am of the view that Ms Jovanovic ought properly be permitted to bring her action for relief for statutory workers compensation entitlements in circumstances in which I have found she had reasonably refrained from litigating the left hip claim in the earlier proceeding. She will still, of course, upon the dismissal of this application, and in pursuing her cause of action, have to navigate the complexities of the statutory regime and establish on the balance of probabilities the matters pleaded in relation to her left hip.
CONCLUSION
[15] [2017] VMC 21
[16] Ibid at [78]
The defendant’s application to dismiss the proceeding is itself dismissed. The substantive matter will be adjourned for mention for parties to allow parties to consider orders in relation to the costs of the defendant’s failed application and with respect to the future conduct of the litigation generally.
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