Kuligowski v Metrobus
[2000] WADC 251
•18 OCTOBER 2000
| JURISDICTION | : | DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL |
| LOCATION | : PERTH | ||
| CITATION |
| ||
| CORAM | : COMMISSIONER LEY | ||
| HEARD | : 21 FEBRUARY 2000 | ||
| DELIVERED | : 18 OCTOBER 2000 | ||
| FILE NO/S |
| ||
| BETWEEN | : MAREK KULIGOWSKI |
Plaintiff
AND
METROBUS
Defendant
Catchwords:
Issue estoppel - Decision by review officer on application under s 60 of Workers' Compensation and Rehabilitation Act 1981 - Finding that plaintiff sustained an injury of minor severity - Finding that injury "resolved" - Refusal to find that disability resulted from injury suffered in course of employment - Decision of review officer a final decision - Finding that injury resolved and that disability did not result from injury suffered in course of employment legally indispensable to conclusion - Plaintiff estopped from seeking leave to commence proceedings - Workers' Compensation and Rehabilitation Act 1981 s 58, s 60 and s 93D
Legislation:
Limitation Act 1935
[2000] WADC 251
Workers' Compensation and Rehabilitation Act 1981
| Workers' | Compensation | and | Rehabilitation | Amendment | Act | 1999 |
(No 34 of 1999)
Result:
Both appeals allowed
Representation:
Counsel:
| Plaintiff | : | Mr D R Clyne |
| Defendant | : | Mr M G Lundberg |
Solicitors:
| Plaintiff | : | D'Angelo & Partners |
| Defendant | : | State Crown Solicitor |
Case(s) referred to in judgment(s):
Administration of Territory of Papua and New Guinea v Guba (1973) 130
CLR 353
Blair v Curran (1939) 62 CLR 464
Brewer v Brewer (1953) 88 CLR 1
Hazart v Rademaker (1993) 11 WAR 26
Mayne v Mayne Nickless Ltd, unreported; FCt SCt of WA; Library No 960223;
26 April 1996
McNair v Press Offshore Ltd (1997) 17 WAR 191
Waddington v Silver Chain Nursing Association, unreported; FCt SCt of WA;
Library No 980728; 14 December 1998
Weeks v Harbourworks Clough (1985) WAR 327
Case(s) also cited:
Egri v DRG Australia Ltd (1988) 19 NSWLR 600
Mayne Nickless Ltd t/as Wards Express v Mayne, unreported; FCt SCt of WA;
Library No 960736; 19 December 1996
[2000] WADC 251
COMMISSIONER LEY
COMMISSIONER LEY:
Background
These are two appeals in separate proceedings brought in this Court. The appeals are against decisions of Deputy Registrar Harman made in the two proceedings.
In each proceeding, the plaintiff is Marek Kuligowski and the defendant is the Metropolitan (Perth) Passenger Transport Trust which is sued in its now more commonly used name of "Metrobus".
The first proceeding is WC 93D 775 of 1997 and is an application by the plaintiff pursuant to the former s 93D of the Workers' Compensation and Rehabilitation Act 1981 ("the Act") and s 47A of the Limitation Act 1935 ("the Limitation Act") for leave to commence proceedings against the defendant ("the application for leave").
The second proceeding is 4575 of 1998 and is the plaintiff's claim against the defendant for damages for negligence ("the damages proceedings").
Both proceedings arise out of an accident which is alleged to have occurred on 23 March 1994. At that time the plaintiff was employed by the defendant as a bus driver. In each proceeding, the plaintiff says that, at approximately 7.20 am on 23 March 1994, at the defendant's Kalamunda bus depot, he was walking across a bitumen parking area for the purpose of boarding the bus which he had been assigned to drive that day. He says that he approached the front door of the bus and placed his left foot on the first step with his right foot still on the ground. He claims that his right foot then suddenly slipped from beneath him, causing his left leg to twist to the left, making him lose his balance and fall to the ground.
The plaintiff alleges that, as a result of the accident, he twisted his left ankle and sustained soft tissue injuries to his right groin and right shin. He says that, as a result of those injuries and a number of recurrences and aggravations of them over a period of years, and some other unfortunate consequences of treatment he has undergone he has suffered loss and damage. In particular, he claims that he has been and is incapable of working for the defendant or at all and has thereby suffered a significant loss of earning capacity.
| 7 | Although the accident allegedly occurred on 23 March 1994, the plaintiff missed very little work initially. The doctor who signed the |
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medical certificate supporting the commencement of weekly payments certified him unfit for work for only three days. He returned to work on 28 March 1994. The plaintiff continued to work for the defendant for some time after that, although he claims that he continued to experience symptoms in his left ankle.
The plaintiff says that, on or about 22 December 1994, when stepping out of a bus after cleaning it, he suffered an exacerbation of the symptoms in his left ankle. In addition, he says that, in or about April 1995, he was walking near Kalamunda Shopping Centre when his left ankle gave way and he twisted his left knee. He says that also caused an exacerbation of the symptoms in his left ankle as well as causing symptoms in his left knee.
On 20 June 1995, the defendant began paying the plaintiff workers' compensation. However, on 11 June 1996, the defendant lodged an application in the Workers' Compensation and Rehabilitation Commission seeking an order under s 60 of the Act suspending the plaintiff's weekly payments of compensation. That application came on for hearing by a review officer on 19 July 1996.
Section 60 of the Act provides (and provided, at the relevant time):
"(1) Where weekly payments are made to a worker pursuant to this Division the employer may apply to the Directorate at any time for an order that such payments be discontinued or reduced. (2) If the employer satisfies the Directorate that there is a genuine dispute as to liability to pay compensation or as to the proper amount of such weekly payments, and in either case of the grounds of the dispute, the Directorate may order that the payments be suspended for such time as the Directorate directs or be discontinued or be reduced to such amount as it thinks proper or it may dismiss the application."
After considering affidavit evidence and hearing argument the review officer found that there was a genuine dispute as to the defendant's liability to pay compensation. However, he did not make any order regarding the suspension or reduction of the plaintiff's weekly payments. Instead, he observed that, prior to 19 July 1996, the parties had agreed to have "the substantive issue" determined at review on 21 August 1996. By
[2000] WADC 251
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my understanding, "the substantive issue" was the question of whether the
defendant was liable to pay workers' compensation to the plaintiff at all.
A second review officer then became involved in the matter. He held a listing conference on 23 July 1996 at which he directed:
"1. Whereas on 19 July 1996 a review officer made a finding that there is a genuine dispute as to liability of the employer to pay compensation to the worker and the parties having agreed prior to that date to have the substantive issue determined at review on 21 August 1996 I direct that the worker be excused from commencing a fresh application subject to this matter proceeding on the basis that the employer is entitled to require the worker to prove an entitlement to compensation under the Act. … 3. That the parties attend prepared to deal with the substantive issue with the onus of proof being on the worker. … "
These directions effectively altered the nature of the application. It was no longer an application under s 60. That had effectively been determined by the first review officer. It was an application for determination of the question of the defendant's liability to make weekly payments of compensation to the plaintiff which would normally be brought under s 58 of the Act.
The matter duly came before the second review officer on 21 August 1996 and was heard by him over three days: 21 and 22 August and 4 September 1996. He handed down his decision on 6 September 1996.
In his reasons for decision, the second review officer said:
"I must be satisfied on the balance of probabilities that not only did the worker sustain an injury but that the injury or disability caused the worker to be incapacitated from work. I have no hesitation in finding that the worker did sustain an injury of
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minor severity on 23 March 1994 and that he completed his
shift that day before seeing his general practitioner.
…
I find also that the injury, described in the first medical report as a twisted left ankle and in the Final Medical Certificate as a strain to the left ankle joint, on the basis of the Final Medical Certificate, resolved.
…
… I believe the evidence fails to establish that the applicant's present injuries arise out of or in the course of his employment with Metrobus, nor do I believe that there are grounds for finding that a recurrence or aggravation of the ankle injury within the definition of disability under the Act has occurred.
…
It is also necessary for the applicant to prove incapacity for work and in this regard I am of the view that Mr Kuligowski has not satisfied the onus on him on this point."
For those reasons, the second review officer ordered that the weekly payments of compensation to the plaintiff be discontinued from 4 September 1996.
The plaintiff appealed from that decision under s 84ZN of the Act. The appeal was heard by a compensation magistrate on 4 March 1997. On 11 March 1997, the magistrate handed down his decision, dismissing the appeal.
On 15 August 1997, the plaintiff filed the application for leave. The application for leave came on for hearing by the learned Deputy Registrar on 29 June 1998, when he granted the plaintiff leave, both under s 93D of the Act and under s 47A of the Limitation Act, to institute damages proceedings against the defendant. On 1 July 1998, the defendant lodged an appeal against the decision to grant leave under s 93D of the Act.
On 26 November 1998, pursuant to the grant of leave, the plaintiff instituted the damages proceedings. In the damages proceedings, the plaintiff claims that the accident and, therefore, his injuries, were caused by the defendant's negligence and alleges that, as a result of that
[2000] WADC 251
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negligence, he has suffered loss and damage, including loss of earning
capacity.
The plaintiff filed and served a statement of claim in the damages proceedings on 1 February 1999. On 26 February 1999, the defendant filed and served its defence. In addition to putting the plaintiff to proof of every allegation in his statement of claim and denying that the accident was caused by its negligence, the defendant pleaded inter alia that, because of the decision of the second review officer on 6 September 1996, the plaintiff was estopped from alleging in the damages proceedings that he suffered from a serious disability, within the meaning of s 93D of the Act.
On 31 March 1999, the defendant filed an application for an order that the plaintiff's claim be dismissed. That application was brought inter alia on the ground of issue estoppel. The application was heard by the learned Deputy Registrar on 3 May 1999 and was dismissed. On 6 May 1999, the defendant lodged a notice of appeal against that decision.
Appeal from the grant of leave to institute proceedings
Both appeals are brought pursuant to O 6 r 11 of the District Court Rules. Therefore they both involve a hearing de novo: Hazart v Rademaker (1993) 11 WAR 26.
The application for leave was made, in part, under the former s 93D of the Act. That section was repealed and replaced with a new provision by the Workers' Compensation and Rehabilitation Amendment Act 1999 (No. 34 of 1999) which came into force on 5 October 1999. Notwithstanding the repeal of the former s 93D, its provisions continue to apply to damages proceedings commenced before 5 October 1999 or for the commencement of which the District Court gave leave before 5 October 1999: s 32(7) Workers' Compensation and Rehabilitation Amendment Act 1999. It may be otherwise in respect of applications for leave to commence proceedings even if they were brought before 5 October 1999. However, that was not something raised before me. Both parties proceeded on the basis that I would consider the appeal from the grant of leave as if the former s 93D were still in force. For that reason, I will approach the matter in that way.
Prior to its repeal, s 93D of the Act provided as follows:
[2000] WADC 251
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"(1) Damages can only be awarded if the disability results in
the death of the worker or it is a serious disability.(2) A disability is a serious disability if, and only if –
(a)
the degree of disability would, if assessed as prescribed in subsection (3), be 30 per cent or more; or
(b)
the future pecuniary loss resulting from the disability is of an amount that is at least equal to the prescribed amount.
… (4) Proceedings in which damages are sought are not to be
commenced without the leave of the District Court.(5) Leave is to be given if –
(a)
disability results in the death of the worker or the parties agree that the degree of the worker's disability would, if assessed as prescribed in subsection (3), be 30 per cent or more;
(b)
on a reference under subsection (7) or (8) it is determined that the degree of the worker's disability would, if assessed as prescribed in subsection (3), be 30 per cent or more; or
(c)
the Court determines that the worker is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount.
(6)
If there is a dispute as to whether the degree of disability would, if assessed as prescribed in subsection (3), be 30 per cent or more, the question may be referred to the Director.
(7)
A question referred to the Director under subsection (6) is to be referred for determination by a medical assessment panel except in a case to which subsection (8) applies.
[2000] WADC 251
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(8) A question referred to the Director under subsection (6) that relates to a disability mentioned in s 33, 34 or 35 is to be referred to a medical panel for determination as described in s 36 and so far as applicable this Act applies in relation to the reference as if it were a reference under s 36 except that the only question to be considered and determined on the reference is the question that was referred."
The word "disability" which appears in s 93D is defined, for present purposes, in s 5 of the Act as a personal injury by accident arising out of or in the course of a worker's employment. The Director is the Director of Conciliation and Review under the Act.
The application for leave was made to satisfy the requirements of s 93D(4). Therefore, it is necessary to consider whether the plaintiff is entitled to leave by virtue of any of the provisions of s 93D(5).
The plaintiff did not adduce, in support of his application, any evidence to the effect that he and the defendant had agreed that the degree of the plaintiff's disability would, if assessed as prescribed in s 93D(3), be 30 per cent or more. Nor did the defendant tell me that it would so agree.
Nor was there any evidence adduced to the effect that a question had been referred to the Director of Conciliation and Review who had, in turn, referred it to a medical assessment panel under s 93D(7). In view of the nature of the disability, there could not have been a reference under s 93D(8).
Therefore, leave to commence the damages proceedings can only be granted to the plaintiff if the Court determines that he is likely to have future pecuniary loss resulting from the disability of an amount that is at least equal to the prescribed amount: s 93D(5)(c). At the relevant time, the prescribed amount was $119,048.
In support of the application for leave, the plaintiff swore an affidavit on 14 August 1997. In the affidavit, the plaintiff deposed that:
(a)
He was born on 28 July 1955 (and is, therefore, now 45 years of age);
(b)
After the alleged accident on 23 March 1994 he was certified unfit for work for three days and returned to work on 28 March 1994;
[2000] WADC 251
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(c) He continued to work for the defendant as a bus driver until 22 December 1994 when he felt pain in his left foot as he stepped out of a bus; (d) In or about April 1995, he was walking near Kalamunda Shopping Centre when his ankle (presumably his left) gave way and he twisted his left knee. He thinks he may have slipped on a gumnut or a stone; (e) He was certified totally unfit for work on 20 June 1995 and has not worked since; (f) For the financial year ended 30 June 1994 he received an average gross wage of $728.77 per week; (g) Had he not been injured he would have worked until he was 65 years of age.
The application for leave was made on the basis that, as a result of the injuries which he suffered in the accident, the plaintiff was totally incapacitated for employment and there was a reasonable prospect that he would remain so. It was submitted that, therefore, the plaintiff had effectively lost 22 years of his working life and, on the basis of a net weekly amount of $540, he was likely to have a future pecuniary loss of approximately $350,000. If that were accepted he would be entitled to a grant of leave under s 93D(5)(c).
The defendant, at least as I understood its argument, did not contest the level of the plaintiff's earnings at the time of the accident or his estimate of his future pecuniary loss. Nor did the defendant quarrel with the medical evidence which was adduced in support of the plaintiff's application. Instead, the defendant attacked the plaintiff's case at an even more fundamental level. It said that, before the plaintiff was entitled to a grant of leave under s 93D(5)(c), he was obliged to establish that his disability was a "serious disability" within the meaning of s 93D(1). It then said that he was estopped from seeking to establish that he was suffering from a "serious disability" because of the decision of the second review officer on 6 September 1996. In other words, the defendant was saying that the plaintiff was not entitled to leave because of the existence of an issue estoppel arising from the decision of the second review officer.
[2000] WADC 251
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Issue estoppel
A final decision, once given by a competent tribunal, forever binds the parties and all those who claim through them in respect of any issue of fact or law which was legally indispensable to that decision: Blair v Curran (1939) 62 CLR 464 at 531-532 per Dixon J; Brewer v Brewer (1953) 88 CLR 1 at 15-16 per Fullagar J.
However, the estoppel covers only those matters which the prior decision established as the legal foundation of or the legal justification for the tribunal's conclusion. Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In a matter of fact, the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Matters of law or fact that are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion: Blair v Curran supra; McNair v Press Offshore Ltd (1997) 17 WAR 191 at 196 per Owen J.
Issue estoppel only applies to a "judicial" determination. Whether or not a determination is judicial will depend on whether or not the tribunal making it has jurisdiction to finally decide a question arising between the parties, even if the tribunal is not a Court and derives its authority from a statute: Administration of Territory of Papua and New Guinea v Guba (1973) 130 CLR 353 at 453 per Gibbs J; McNair v Press Offshore Ltd, supra at 196-7.
In McNair, the Full Court held that a determination of a review officer under the Act was a judicial determination in the relevant sense: see 198 per Owen J (with whom Kennedy J agreed).
However, to give rise to an issue estoppel, the decision of the review officer must also have been "final". That was also something considered by the Court in McNair. In that case, the appellant claimed that he had fallen and injured his back while at work. He then had time off work and applied to his employer for the payment of workers' compensation. The employer denied liability and the appellant filed an application in the Workers' Compensation Board. By the time the application was ready to be heard, the 1993 amendments to the Act had come into force and the Board had been replaced by the Directorate. Accordingly, the appellant's application was heard by a review officer. The review officer was not satisfied that the appellant had fallen as he had claimed and dismissed the application.
[2000] WADC 251
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The Court held that the review officer's decision was final. Owen J
said:
"The next question is whether it is a 'final' determination, again using that term in the sense in which it is understood for these purposes. It seems to me that the legislative intent was to clothe the review officer's determination with the air of finality. One of the purposes of the Act is to make provision for the hearing and determination by the dispute resolution bodies (which term includes a review officer) of disputes between parties involved in workers' compensation matters in a manner that is fair, just, economical, informal and quick: see s 3(d). It would be inimical to that aim if the parties to the dispute were at liberty to pursue claims in multiple jurisdictions depending on the outcome from time to time. Under s 84ZN a decision or order of a review officer is not open to question or review in any court and proceedings before a review officer may not be restrained by injunction nor may they be challenged by prerogative writ. There is an avenue of appeal, namely to a Compensation Magistrate, but this is limited to error of law. It seems to me that this also lends weight to the view that decisions of review officers were intended to be final."
Kennedy J agreed. He said:
"By s 84ZN, the decision of the review officer is not open to question or review in any court, subject only to an appeal to a Compensation Magistrate when a question of law is involved. In the circumstances, the review officer had the power 'to decide finally' the question which arose between the parties."
After having concluded that the determination of the review officer was a final decision, Owen J went on to hold that the finding by the review officer that he was not satisfied that the appellant had fallen as he had claimed was legally indispensable to the conclusion that the appellant had not suffered a disability and that he was not entitled to weekly payments. He held that the determination of the review officer gave rise to an issue estoppel in the damages proceedings.
In Waddington v Silver Chain Nursing Association, unreported; FCt SCt of WA; Library No 980728; 14 December 1998, the Full Court (slightly differently constituted than in McNair but including Kennedy and Owen JJ) was asked to decide whether a decision by a review officer,
[2000] WADC 251
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upon an application under s 62 of the Act, whereby he ordered that a worker's weekly payments of compensation be reduced, was a final determination. The Court held that it was not. In reaching that decision, the Court relied on its earlier decision in Weeks v Harbourworks Clough (1985) WAR 327. The Court said (at 17):
"The decision in Weeks makes it clear that a review under s 62 of the Act will be subject to res judicata (or for that matter issue estoppel, although no distinction was made in the reasons for judgment) if and only if the circumstances at the time of the review are precisely the same as they were at the time of the original decision. Otherwise the original decision is open to review. Thus, unless the circumstances at the subsequent hearing are exactly the same no question of issue estoppel arises. It follows that in all other cases, if there is any other evidence which may lead to a different result, a decision on a review under s 62 of the Act is not a final decision and does not create an issue estoppel."
However, in the present case, the application was brought under s 60, not s 62. Furthermore, as a result of the finding of the first review officer on 19 July 1996 and the directions given by the second review officer on 23 July 1996, the application was effectively converted into a substantive application under s 58 to determine whether the defendant was liable to pay the plaintiff compensation under the Act. Therefore, it was, in fact, dealt with in the same way as the application in McNair. In those circumstances, I must conclude that the determination by the second review officer on 6 September 1996 was a final decision.
The next question to be determined is whether any of the findings made by the second review officer was legally indispensable to the conclusion that the plaintiff's alleged disability did not arise out of or in the course of his employment. In my view, the finding that the injury suffered in the accident resolved falls into that category. Once that finding was made, there was no longer any scope for finding that any subsequent disability from which the plaintiff suffered was caused by the accident.
In order to establish that it is likely he or she will sustain future pecuniary loss at least equal to the prescribed amount, the plaintiff must show that he or she has a substantial, or a real and not remote chance of recovering such damages: Mayne v Mayne Nickless Ltd, unreported; FCt SCt of WA; Library No 960223; 26 April 1996.
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In my view, it is legally indispensable to the establishment of that likelihood that the injury that the plaintiff suffered in the accident did not resolve but continued to give the plaintiff symptoms and was aggravated on several subsequent occasions. If those alleged "aggravations" could not be established as such it would not be possible for the plaintiff to show that his total incapacity for work, on which his estimate of future pecuniary loss is based, was caused by the accident.
I also think that the refusal by the second review officer to find that the injuries of which the plaintiff complained arose out of or occurred in the course of his employment with the defendant was essential to the second review officer's ultimate conclusion. That was, in effect, a refusal to find that the disability of which the plaintiff complained was caused by the accident. It is essential to the application for leave that the disability upon which the plaintiff relies as the basis for his claim that he is likely to suffer future pecuniary loss at least equal to the prescribed amount was caused by the injuries which he suffered in the accident.
Therefore, in my opinion, the doctrine of issue estoppel applies and the plaintiff is estopped from asserting, inconsistently with the findings of the second review officer that I have mentioned, that as a result of the injuries which he suffered in the accident, he was rendered totally incapacitated for work and is likely to suffer a future pecuniary loss at least equal to $119,048.
Accordingly, I would allow the appeal and, in lieu of the order granting the plaintiff leave under s 93D of the Act to commence the damages proceedings, I would dismiss the application for leave.
Appeal from refusal of application for order dismissing plaintiff's claim
As a result of the conclusion I have reached in respect of the first appeal, it follows that the plaintiff no longer has leave to bring the damages proceedings as required by the former s 93D(4) of the Act. Therefore, they must be dismissed.
Accordingly, I would also allow the second appeal and, in lieu of the order dismissing the application, would order that the plaintiff's claim in the damages proceedings be dismissed.
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