Karam v Palmone Shoes Pty Ltd
[2015] VMC 24
•27 May 2015
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
X03602618
| AKRAM KARAM | Plaintiff |
| v | |
| PALMONE SHOES PTY LTD and ANOR | Defendants |
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MAGISTRATE: | Magistrate B.R. Wright |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 April 2015 |
DATE OF DECISION: | 27 May 2015 |
CASE MAY BE CITED AS: | Karam v. Palmone Shoes Pty Ltd |
REASONS FOR DECISION
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Catchwords:
Workers Compensation – Rejection of Claim – Claim for Cancer “Due to Nature of Employment” - Prior Dismissal of Claim for Damages for Cancer Against Same Employer – Issue Estoppel – Abuse of Process – Accident Compensation Act ss 82(6), 86 & 87
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S.Keating | PRD Legal |
| For the Defendant | Mr S.O’Meara QC with Mr.I. Gourlay | Minter Ellison |
HIS HONOUR:
1 Palmone Shoes employed Mr Karam from about 6 November 2002 to 22 February 2006 as a shoemaker. He issued these proceedings in this court on 19 December 2008, seeking weekly payments pursuant to the Accident Compensation Act 1985 (the “Act”) for "Plasmacytoma in the left para-aortic region". That medical condition has now progressed to multiple myeloma (“both conditions will be referred to as “the cancer condition”).
2 In these proceedings he pleads that he is entitled to benefits, including weekly payments and reasonable medical and like expenses under the Act, pursuant to s.82(6) and s.86 as being "due to the nature of his employment by the defendant". Further, he pleads pursuant to s.87(1) of the Act that his injury is due to the nature of his employment as he was exposed to various chemicals in his employment, including benzyl and toluene.
3 In separate proceedings between the same parties (C11459300), Mr Karam had also sought benefits under the Act for industrial asthma allegedly sustained in similar circumstances.
4 However, on 10 April 2013 I struck out those proceedings as an abuse of process pursuant to s.134AB(36) of the Act . This was on the basis he had received an order for pecuniary loss damages from Palmone in Supreme Court proceedings before His Honour Justice T. Forrest on about 18 January 2010 for his asthma condition (“the asthma case”).
5 Justice Forrest, in separate proceedings heard together with the asthma case, gave judgment on the same date for Palmone in Mr Karam's claim for damages for his cancer condition (see, [2010] VSC 3) (“the cancer case”). On 29 September 2010, the Victorian Supreme Court of Appeal dismissed Mr Karam's appeal from Justice Forrest's decision in the cancer case (see, [2010] VSCA 253).
6 Mr Karam seeks to continue these proceedings in this court.
7 Palmone submits that as a result of the entry of judgment in its favour in the cancer case, an issue estoppel arises which precludes Mr Karam from continuing these proceedings. It submits these proceedings should be dismissed.
8 Alternatively, Senior Counsel for Palmone submits that if there is no issue estoppel in this case, then the proceedings should be dismissed as an abuse of process based on what he submits was the dismissal of the cancer case.
9 I will discuss the issue estoppel aspect first.
10 On 7 November 2014, I ruled that the issue estoppel question should first be determined as a threshold issue before proceeding to consider Mr Karam’s claim on the merits, if that be required. At that stage Mr Karam was, and had been for several years, self-represented. It seems that prior to the argument before me on 21 April 2015 he instructed his present solicitors to act on his behalf. Counsel was briefed to argue against Palmone's submission that these proceedings should be dismissed without proceeding on the merits.
11 Save for the pleading of negligence, the Statement of Claim in the cancer case was similar to that in the present proceedings. However, reference was specifically made to exposure to benzene in the cancer case rather than benzyl, toluene, benzene and other associated chemicals as pleaded in the present proceedings.
12 At one stage, Counsel for Mr Karam in the cancer case applied to amend the Statement of Claim in the cancer case to include ss.82(6), 86 and 87 of the Act. However, in a ruling delivered on 18 November 2009 Justice Forrest ruled that any amendment to include those provisions in the Statement of Claim should not be allowed. He ruled that those provisions of the Act "clearly confine their operation to the theatre of compensation payments for injured workers, that is compensation payments in a no-fault scheme, designed to provide for injured workers and their families", rather than to common law claims.
13 I will summarise aspects of the cancer case, so far as relevant in the present application before me. All references to paragraphs are to Justice Forrest’s judgment in the cancer case, unless otherwise indicated.
14 As pointed out in para. 9, it became clear in the course of the cancer case that Mr Karam relied on exposure to benzene to establish a causal link to his cancer and that this causation issue was the predominant issue in the cancer case. Palmone's case was that Mr Karam "had failed to prove that the exposure was a cause of his plasmacytoma/multiple myeloma".
15 At para. 10, Justice Forrest accepted Mr Karam had not been exposed meaningfully to glue fumes in previous jobs. Thus, only the employment at Palmone was relevant in that case.
16 His Honour accepted that Mr Karam was involved in the gluing process for about 30 to 40 minutes every hour over an eight-hour working day, with either the uppers or the soles of shoes in his "breathing space" between 20 to 30 centimetres of his mouth and nose. At para. 20 he stated that there was a clear issue whether his exposure to benzene did "increase his risk of developing plasmacytoma/multiple myeloma at all or in any meaningful way".
17 His Honour, at para. 24, considered it appropriate to consider the evidence having in mind the following issues:
(1) What was the actual level of benzene exposure that Mr Karam was subject to at relevant times at his work place,
(2) Whether Mr Karam demonstrated that exposure to benzene increases the risk of development of plasmacytoma to a significant degree,
(3) Whether Mr Karam demonstrated that his actual exposure to benzene in the workplace increased his risk of developing plasmacytoma to a significant degree, and
(4) Whether Mr Karam demonstrated that his exposure to benzene in his employment was a cause or material contributing factor to his development of plasmacytoma.
18 As I will discuss later, the third issue as to "increase of risk" of development of plasmacytoma is probably the most relevant part to this application.
19 His Honour said that there was no significant distinction between plasmacytoma and multiple myeloma for the purposes of the cancer case, which is the case in these proceedings as well. His Honour then discussed the considerable amount of medical and non-medical expert evidence and other lay and treating medical evidence that was presented in the course of the trial. I see no point in going through the detail of that evidence. Rather, I will refer to His Honour’s relevant findings on the salient points.
20 As to the first issue, he was not satisfied that Mr Karam's exposure to benzene was at the levels argued on his behalf. He found that on a true weighted average Mr Karam's exposure to benzene was approximately .4 parts per million and below the Australian standard of one part per million or more. This was based on his acceptance of tests at the workplace undertaken by Mr Paul Addison, an occupational hygienist.
21 His Honour then considered the evidence of risk and causation. He heard from Dr Wassouf (the treating general practitioner), Associate Professor Wolf (the treating haematologist and oncologist), Dr Sutcliffe (an independent medical examiner who calls herself an occupational physician) and Professor Winder (a consultant professor in toxicology) on behalf of Mr Karam.
22 His Honour found Dr Wassouf's research and acquired knowledge was insufficient to allow him to accord Dr Wassouf's opinion any real weight.
23 He found Associate Professor Wolf's evidence had some uncertainties and reservations. His Honour considered that Associate Professor Wolf’s opinion was ultimately that, given the uncertainty about the age of Mr Karam's tumour and the levels of his actual exposure to benzene, he believed it was highly possible that his multiple myeloma was related to his employment from November 2002 onwards, but was not prepared to say it was probable.
24 Dr Sutcliffe certainly expressed a much stronger opinion in her report to the effect that "exposure to hazardous substances in the workplace resulted in the plasmacytoma". In her evidence she thought that Mr Karam had been exposed to benzene in the workplace at three, four or five parts per million. She seemed to rely on Mr Karam's history of such exposure in coming to that belief. His Honour also pointed out some uncertainty on her behalf as to the relevant latency period.
25 His Honour preferred Dr Addison's testing to Dr Sutcliffe's estimates. He did not consider that her evidence assisted Mr Karam's case in any material way in demonstrating that the actual exposure that he found Mr Karam was exposed to led to his risk of developing multiple myeloma being increased, or to the conclusion that, on balance, that exposure was a cause of his multiple myeloma.
26 Professor Winder, a toxicologist, also gave evidence. His evidence had its limitations, especially as to the latency period and its effect on causation, according to His Honour. In particular, he fell short of a capacity to offer medical opinion on the cause of Mr Karam's medical condition. However, His Honour found his evidence supportive of Mr Karam's medical witnesses.
27 Palmone called two expert witnesses in the cancer case. Professor Fox, a specialist clinical haematologist and medical oncologist, gave evidence. In his first report, Professor Fox maintained that Mr Karam's work at Palmone was not causative of his multiple myeloma. He had pointed to the lack of clear evidence of exposure to benzene to cause plasmacytoma as well as the very short period between exposure and discovery of the tumour. Eventually, he was prepared to concede if two of the studies in this area were correct, then there was an increased risk of multiple myeloma from exposure to benzene at very high levels. However, this left open any form of probability in this case.
28 Palmone called an expert toxicologist, Dr George Crank, as well. His Honour expressed similar reservations as to Dr Crank’s ability to express medical opinions, as he had done with Professor Winder. He believed that Dr Crank was well qualified to offer an opinion on the chemical and toxicological effects of benzene and other solvents. His evidence was really limited to abstract epidemiology. His Honour noted that Dr Crank thought that the benzene content of the products in this case was too low to be hazardous, although he did say that it was biologically plausible that benzene exposure could lead to the development of multiple myeloma.
29 Senior Counsel for Palmone then took me through His Honour's conclusions in the cancer case. At para. 110, His Honour emphasised that he had to answer the question "has the plaintiff proved on the evidence before the court that his exposure to benzene has been a cause or material factor in the development of his plasmacytoma/multiple myeloma?"
30 Justice Forrest was satisfied on the evidence that it was at least highly possible, if not probable, that occupational exposure to benzene in significant levels increases the risk of a person developing multiple myeloma and, by extension, plasmacytoma. However, even if very high exposure to benzene did increase the risk of developing multiple myeloma, he did not consider Mr Karam had proved his case that his exposure to benzene increased his risk of developing the illness.
31 As I have stated, Justice Forest found that the presence of benzene in his breathing space was between .4 parts per million and one part per million on a time weighted average. There was no epidemiological evidence that there was any increase of risk of developing multiple myeloma at anywhere near these levels. In fact, the evidence was to the contrary. He found that the relatively short period between related employment and diagnosis supported the lack of association.
32 Again at para. 117 he emphasised that Mr Karam had failed to prove that his risk of developing multiple myeloma was increased by his actual exposure to benzene in the workplace. He made it clear that he was not satisfied that the opinions of Drs Wassouf and Sutcliffe were soundly based on biological plausibility, an understanding of the actual levels of exposure, an understanding of latency periods and a broad reading and understanding of the epidemiology studies.
33 He concluded at para. 119 that he was again not satisfied that benzene exposure to the found levels, and for the found duration, was a cause or contributing factor in Mr Karam's development of the cancer condition. The cancer case was thereupon dismissed.
34 Reference was also made to the Court of Appeal decision in Mr Karam's appeal from His Honour's judgment, in which Mr Karam was self-represented. I note from para. 7 of its Decision that Mr Karam had personally filed Notices of Appeal. I will not discuss the appeal in any great detail.
35 At para. 64 the Court of Appeal stated it was satisfied that His Honour's conclusions in relation to the witnesses, and his findings, were all open to him, did not appear to be contrary to the evidence, were unreasonable or otherwise vitiated by error.
36 More relevant to this case, Mr Karam tried to re-agitate the provisions of the Act, viz. ss.82(6), 86 and 87, that he had sought unsuccessfully to include in the pleadings before Justice Forrest.
37 The Court of Appeal pointed out that ss.82(6) and 87 did not assist his cancer case in the Supreme Court because the main issue was, broadly speaking, whether his cancer had resulted from his working conditions during his employment at Palmone, and those provisions "did not foreclose that question".
38 The deeming provisions in s.87 were even less relevant to the Court of Appeal, and it stated “there was no poisoning as such. He relied on an exposure to benzene in the cancer case and not by benzyl or halogen derivatives of hydrocarbons".
39 I now turn to Counsel's submissions before me.
40 Senior Counsel for Palmone first put submissions to me on the issue estoppel defence in this case. I will deal with that aspect first before going to his abuse of process argument.
41 He first referred to the classic statement by the High Court in Blair v Curran [1939] 62 CLR 464 at 531-532 as to the distinction between res judicata and issue estoppel and the effect of issue estoppel in later proceedings between the same parties. He submitted that this was a case of issue estoppel and not res judicata.
42 He submitted that issue estoppel does not apply just to the cause of action but also separate issues between the parties as to whether a particular condition had been fulfilled (see, Thoday v Thoday [1964] P 181 at 198).
43 He referred to two cases in which a worker had proceeded to seek workers' compensation benefits first and then had later claimed damages. In Somodaj v Australian Iron and Steel (1963) 109 CLR 285, a worker had lost his claim for compensation in the New South Wales Workers' Compensation Commission, in which he relied on a traumatic back injury on a single date. The majority in the High Court stated that the finding, which was said to give rise to the issue estoppel, was equivocal, that is whether he suffered any injury to his back on a specific date or whether he did not sustain any injury in the course of his employment.
44 In those circumstances, it was permissible to look at the reasons of the member of the Workers' Compensation Commission for the purpose of seeing what was actually decided. When this was done, it could be seen that the earlier finding concluded the issue whether the worker had suffered any injury as a result of the alleged specific traumatic episode on the specific date.
45 Similarly in Egri v DRG (1988) 19 NSWLR 600, the worker was precluded from asserting in later Supreme Court proceedings that he had suffered a disc lesion when the Workers' Compensation Commission had previously stated it was not satisfied that he had so suffered a disc lesion.
46 The High Court in Kuligowski v Metrobus [2004] 220 CLR 363 at 373, set out the requirements for issue estoppel, being:
(1) The same question has been decided,
(2) The judicial decision said to create the issue estoppel was final, and
(3) The parties were the same.
47 Certainly, as conceded by Mr Karam's counsel, in the present case grounds two and three were not in dispute, in that the first decision is final and the same parties are involved. The real issue in this application in this proceeding is whether the same question has been decided.
48 Senior Counsel referred to Chief Justice Barwick’s statement in Ramsay v Pigram (1968) 118 CLR 271 at 276 (as cited in Kuligowski (supra) at para. 40) that:
"an issue estoppel is available to prevent the assertion in those (later) proceedings as a matter of fact or law in a sense contrary to that which that precise matter has already been necessarily and directly decided by a competent tribunal resolving rights or obligations between the same parties. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case" (emphasis added).
49 Senior Counsel referred to Justice Forrest's findings of an actual level of exposure of .4 parts per million and that there was no epidemiological support for an increased risk of plasmacytoma/multiple myeloma at that level. The only evidence accepted by His Honour did not support an increased risk either. Thus, he submitted that there was no increased risk of plasmacytoma/multiple myeloma related to his benzene exposure established in the cancer case.
50 He submitted that the finding that no increased risk had been established was important, having regard to the decided cases as to industrial disease and the nature of employment, as to which the decision in ACC v Botezatu (1993) 1 VR 304 was highly relevant. In that case, as in the present case, there was only a single employment which was alleged to be relevant to the disease. At p.313, Justice Ashley stated "it appears to me that a disease could be demonstrated by experience within one premises".
51 In that case, Justice Marks stated at p.305 that a relevant tribunal had to consider "the tendencies, characteristics and incidence of the worker's employment, in considering whether there was an increase to injury in considering whether the disease was 'due to the nature of employment'”, in applying the well known tests set out in such cases as Commonwealth v Bourne (1960) 104 CLR 32. In that case, the High Court said the test is not directly concerned with something arising out of the particular service of the particular employer.
52 Senior Counsel submitted that Justice Forrest determined in the cancer case that there was no increased risk in Mr Karam's employment with Palmone. This was the same issue as in the present proceedings. Thus, Mr Karam was precluded from asserting to the contrary in the present proceedings.
53 Counsel for Mr Karam substantially accepted Senior Counsel's outline of the issues and findings in the cancer case. However, she disagreed as to the effect of the findings as to these proceedings.
54 She conceded that for the purposes of any issue estoppel that (1) the decision which is said to create the estoppel was final, and (2) the parties were the same or effectively the same. The only dispute in the present application was whether the same question has been decided.
55 She submitted that the question of risk in the cancer case was determined in relation to the issue in that proceeding, that is whether exposure to benzene caused the cancer condition.
56 The question of risk was an evidentiary fact only and not an ultimate fact that was a necessary ingredient in the cancer case on behalf of Mr Karam. Further, the decision in the earlier case did not finally determine the question in that case. Justice Forrest merely concluded that he was "not satisfied" that Mr Karam had proved causation.
57 As to the first submission, she referred to the dicta of Barwick J, in Ramsay v Pigram (supra) that the issue determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case. The precise matter of either fact or law must have been already necessarily and directly decided.
58 She referred to the application to amend the Statement of Claim in the cancer case to include ss.82(6), 86 and 87 of the Act. This was refused, with Justice Forrest noting the fundamental differences between those provisions and the test of causation at common law.
59 She then referred to the dicta in Commonwealth v Bourne (supra) and Connair v Fredrickson (1979) 142 CLR 483 as to the purview of the phrase "due to the nature of employment".
60 Further, in ACC v Botezatu (supra) Justice Marks pointed out "it is not necessary to establish that the employment actually caused it, that is, the relevant disease".
61 She referred to the Bennett/Naxakis reasoning upon which Mr Karam's Counsel relied on in the cancer case, referring to Naxakis v Western General Hospital (1999) 197 CLR 278, 279.
62 She also referred to Justice Forrest's discussion of Justice Gaudron's decision in Naxakis, as referred to by Justice Chernov in Freiden v St Laurent (2007) VSC 16 at para. 20.
63 She submitted that consequently the Bennett/Naxakis reasoning was that the assessment of risk is for the purpose of determining whether it is appropriate to draw an inference that the increased risk, coupled with the development of the injury or disease, caused the injury or disease.
64 She submitted that this is a materially different issue to that which arises under ss.82(6), 86 and 87 of the Act. At the very least, she submitted that the issue before the Supreme Court and this Court are not identical.
65 Following on from that argument, she submits that ten of the eleven matters in the Further Amended Notice of Defence in these proceedings going to the issue estoppel, including the question of risk, are evidentiary facts.
66 Those matters are based on Mr Justice Forrest's findings on different aspects of the evidence in the cancer case. In support, she referred to Justice Dixon's decision in Blair v Curran (supra) at para. 532 that "findings however deliberate and formal which concern only evidentiary facts, and not ultimately facts, forming the very title to rights give rise to no preclusion". The ultimate facts, which form the ingredients of the cause action alone, give rise to the estoppel.
67 She submitted that the only ultimate fact in the Further Amended Notice of Defence is that detailed in para. 17(xi), which is based on Justice Forrest's judgment whether the exposure to benzene caused Mr Karam's cancer condition.
68 Further, she referred to the important issue as to what Mr Justice Forrest actually decided. She admitted His Honour did not find that the exposure to benzene did cause Mr Karam's cancer condition. He merely concluded that he was “not satisfied” that benzene exposure at the found levels, and for the established duration, was the cause or a contributing factor in his development of the cancer condition.
69 His Honour stated that he was “not satisfied” at paras. 110, 112, 117 and 119 of his decision. A mere non-satisfaction, she submitted, does not necessarily and conclusively determine the issue in the negative. She submitted that Justice Forrest did not conclusively determine whether or not Mr Karam’s cancer condition was caused, that is in a general sense, by exposure to benzene.
70 Senior Counsel then replied to her submissions. As to the issue of evidentiary facts as opposed to ultimate facts, Senior Counsel referred to the decision of Coleridge J in Crown v Hartington Township (1855) 4 E & B 780 (as cited by Dixon J. in Blair v Curran (supra)) to the effect that "matters cardinal cannot be raised in later proceedings if to raise them is necessarily to assert that the earlier decision was erroneous".
71 He submitted that it should be borne in mind that in the cancer case, as in the present proceedings, the only employment implicated was by Palmone. In those circumstances, he submitted that Justice Forrest's findings go to the relevant nature of employment exposure upon which the present proceedings are based.
72 As to whether a finding that the earlier court being “not satisfied” can still amount to an issue estoppel, he referred to the judgments in Egri (supra) and Somodaj (supra) in which the earlier court findings were expressed in terms of “not being satisfied” and "failed to establish". Issue estoppel was upheld, insofar as the later proceedings were concerned, in both cases.
73 In any event, he submitted that although Justice Forrest expressed his judgment in terms of being “not satisfied” on the evidence before him, it is clear from his detailed analysis and his specific findings in the cancer case that he actually made findings positively against Mr Karam's basic allegation that exposure to benzene did cause his cancer condition.
74 I now turn to my ruling on the issue estoppel point. Both counsel made excellent, detailed and comprehensive submissions on this issue.
75 It seems to me that the issue estoppel application by Palmone fails, if only for the reason that the Statement of Claim in the present proceeding is still based on alleged exposure to benzyl and toluene for the purposes of the s.87 claim in these proceedings.
76 Benzene is one of a number of chemicals mentioned in para. 6 of the Statement of Claim as to s.86. I appreciate that there was no real argument by Mr Karam's Counsel in the cancer case that for the purposes of that case, there was relevant exposure to benzyl and toluene. That aspect was really not argued.
77 I also appreciate that Mr Karam may not wish to proceed with any argument as to alleged exposure to benzyl, toluene, etc., having regard to the detailed analysis of the chemicals to which he was exposed, as covered in the evidence in the cancer case. That is a matter for him. Any finding as to benzene exposure in the cancer case cannot preclude the present proceeding partially based on exposure to benzyl, toluene and other chemicals mentioned in para 6 apart from possibly benzene.
78 The only matter in dispute between the parties is whether the same question has been decided, that is, in looking at the issue estoppel aspect. Again, the nature of the claim in the present proceedings should not be forgotten.
79 I believe the real issue in the present application is the difference between the bases of the claim in the cancer case to that in the present proceedings. In the cancer case, Mr Karam had to prove either direct causation by exposure to benzene or rely on the Naxakis inference, that is, whether as a matter of probability there was an increased risk of injury of him developing his cancer condition as a result of exposure to benzene in Palmone's employment.
80 The real issue in the present proceedings is that pursuant to s.86 of the Act, that is whether his cancer condition is due to the nature of his employment. Both counsel referred to the well-known principles set out in such cases as Commonwealth v Bourne (supra) and Connair v Fredrickson (supra).
81 This court must consider results which are incidental to the class of employment by virtue of its tendencies, incidents and characteristics as referred to in Commonwealth v Bourne (supra) at p.39.
82 These principles have been considered in recent years in a number of cases in the County Court and the Supreme Court. A number of these cases were discussed by Judge Dyer in Tran v VWA (2014) VCC 1210.
83 I respectfully agree with His Honour that firstly, actual causation of the disease by reason of the particular employment is unnecessary and irrelevant to the proof required by the operation of s.86. Secondly, according to His Honour, the plaintiff bears the burden of proof on the balance of probabilities that the nature of the particular employment is more likely to expose the worker to the contraction of such a disease than would be the case in other employments or non-employment related activities.
84 His Honour then went on to refer to the requirement for employment to be a significant contributing factor as well. However, in the present case that does not appear to be necessary. The requirement that employment of that nature be a significant contributing factor was removed from s.86 by Act 95 of 2003, except for heart attack and stroke injuries. The present requirement for "significantly greater risk by the nature of employment” was only inserted into the Act by Act 80 of 2010.
85 Thus, the test for work relationship in the present case is much wider than in the cancer case. In fact as pointed out by Mr Karam’s Counsel, Justice Forrest made a similar point in ruling that s.86 etc. should not form part of the cancer case. The fact situation in Botezatu (supra) is a good example of the differences between the tests. The tribunal in that case did not determine that the worker's injury in that case was actually caused by his employment at the relevant single work premises, rather that it was due to the nature of employment there.
86 I agree with Mr Karam's Counsel that when these matters are taken into account, His Honour's specific findings as set out in paras. 17 (i-ix and x) of the Further Amended Notice of Defence are evidentiary facts only in support of His Honour's finding that he was not satisfied that the found exposure to benzene in his employment was a cause or contributing factor (not a significant contributing factor) to the cancer condition.
87 Thus, there is no issue estoppel precluding the continuation of the present proceedings (see, Blair v Curran at p.532). I emphasise, it may be open to this court upon considering the evidence to not be so satisfied as well on the basis of similar findings. Thus, Mr Karam may not prove his case under s.86 on the basis of the evidence before His Honour. That is a matter for argument, having regard to the well-established principles on nature of employment, after considering all the evidence as referred to in the cases that I have set out above.
88 Issues such as epidemiological studies, latency periods and breathing space are clearly highly relevant, but are not the only issues as to nature of employment. As Judge Dyer stated in Tran (supra), the issue of other employments or non-employment activity would need to be considered as well.
89 Further, there is the issue of His Honour's specific finding that he was not satisfied that Mr Karam had established that exposure to benzene at Palmone was a cause or contributing factor to the development of the cancer condition.
90 I agree with Senior Counsel for Palmone that a finding of not being satisfied can ground an issue estoppel to preclude later proceedings, but only in respect of the same issue. For example, it can apply in respect of a finding whether or not a specific incident occurred, or whether it occurred on a certain day.
91 That is not the case in the present proceedings. In the present case, the test for causation in the cancer case was, I believe, more narrow than in the present proceedings, as I have stated previously. The Naxakis line of reasoning ultimately goes to an inference that the increased risk, together with the development of the disease that the "wrongdoing materially contributed to the injury and was causative of it" (see, Freiden v St Laurent (supra) at para. 20).
92 Having ruled that there is no issue estoppel precluding the continuation of these proceedings, I now turn to the issue of abuse of process.
93 No such allegation was pleaded by Palmone in its Defence or Amended Defences after Justice Forrest's judgment in January 2010. In fact, Counsel for Mr Karam states that she was not given notice of such until the evening prior to the argument before me.
94 Certainly, this court has an inherent jurisdiction to consider issues of abuse of process. A procedure to deal with such applications is set out in the Magistrates' Court General Civil Procedure Rules 2010 at 0.23.01(1)(c). As a matter of fairness alone, much more notice should have been given of this issue. This is particularly relevant as the VWA is a model litigant. However, I will deal with the issue, as I believe that Counsel for Mr Karam was adequately able to deal with it.
95 On one view, my ruling as to issue estoppel deals with any abuse of process point. However, as Senior Counsel for Palmone pointed out, that even if the question is technically not covered by issue estoppel, later proceedings may be stayed or dismissed as an abuse of process anyway (see, Reichel v Magrath [1889] 14 AC 665 and Tiufino v Warland [2000] NSWCA 110).
96 Certainly, in considering an alleged abuse of process in circumstances in which later proceedings raise the same or similar issues, it was not necessary that the plaintiff in both matters be the same if they were otherwise connected (see, Kermani v Westpac [2012] VSCA 42).
97 A number of cases referred to by Senior Counsel for Palmone do discuss Anshun-type estoppels in this context. Senior Counsel really put his argument on a similar basis to that he raised on the issue estoppel point. The same parties and same questions were involved in the present proceedings as were involved in the cancer case. His basic submission was that Mr Justice Forrest had determined the "increase of risk" issue. Continuing the present proceedings, he submitted is a re-litigation of that issue and therefore is an abuse of process.
98 Not surprisingly, Counsel for Mr Karam objected to the abuse of process being considered at all in view of the lack of notice. More substantially, she submits as workers' compensation legislation has long been regarded as beneficial legislation, then a finding of “abuse of process” should not be readily found against an injured worker.
99 In the present case, there are two separate schemes involved, common law damages and a claim for statutory “no fault” benefits. She submits that something more than a simple overlap of injury and employment is necessary. I substantially agree with her submissions.
100 Ever since the enactment of workers' compensation legislation in 1897 in the UK and later in Australia, workers' compensation legislation has been regarded as beneficial legislation (for example see, Thompson v Armstrong and Royse Pty Ltd (1950) 81 CLR 585 at p.616). More substantially, the legislation recognises the right of a worker to separately bring statutory benefit proceedings and common law proceedings.
101 By way of s.134AB(36), any successful or compromised settled damages action prevents later claims for similar statutory benefits. There is no reason why a person cannot bring separate statutory benefit proceedings and common law proceedings, in either order, subject to the specific provisions of the Act. Thus, I believe a court should be reluctant to uphold an abuse of process submission against an unsuccessful worker at common law and prevent a claim for statutory “no fault” benefits. The question of issue estoppel is always open in appropriate circumstances.
102 The fact that the test as to “nature of employment” is wider in these proceedings reinforces my finding that there is no abuse of process in this case.
103 As I have found against the defendant in this application on both grounds, I seek Counsels’ assistance as to the future conduct of these proceedings.
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