Lloyd v PFD Food Services (Melb) Pty Ltd

No judgment structure available for this case.

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

WORKCOVER LIST

Case No. CI-15-04265

JOHN LLOYD	Plaintiff
v
PFD FOOD SERVICES (MELB) PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	10, 11 & 12 October 2016
DATE OF JUDGMENT:	7 December 2016
CASE MAY BE CITED AS:	Lloyd v PFD Food Services (Melb) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2016] VCC 1863

REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – claim for weekly payments of compensation and payment of reasonable medical and like expenses – res judicata and issue estoppel – settlement of previous claims in respect of weekly payments and medical and like expenses – whether finality achieved by reason of previous orders – whether there has been a change of circumstances – plaintiff continuing in self-employment – no specification of actual ongoing medical and like expenses – factors to be considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Dealehr	Simon Legal
For the Defendant	Mr N Griffin	IDP Lawyers

HIS HONOUR:

General background

1 This case comes before me as a claim pursuant to the Accident Compensation Act 1985 (hereinafter referred to as “the Act”) for weekly payments of compensation and the payment of reasonable medical and like expenses. Amongst other things, the defendant relies upon the doctrine of res judicata, particulars of which shall be set out subsequently. During discussion prior to the commencement of evidence, it was clear that the defendant was also arguing issue estoppel, in addition to matters of capacity and whether or not there has been a change in circumstances – see Transcript (hereinafter referred to as “T”) 11 and following pages.

2 Mr D Dealehr of counsel appeared on behalf of the plaintiff. Mr N Griffin of counsel appeared on behalf of the defendant. Oral evidence was taken from the plaintiff; the plaintiff’s treating general practitioner, Dr Leon Shapero; and from Dr Peter Janovic, a general practitioner who specialises in pain management and who has also treated the plaintiff. The balance of the evidence was documentary in nature and was tendered either by consent or without objection. At the conclusion of the evidence, each counsel made detailed and helpful submissions.

Factual background
(a)The plaintiff’s history, the accident, his treatment and payment of benefits

3 The plaintiff is a 63 year old man, he having been born on 6 December 1952. He is currently working part-time on a self-employed basis, doing painting and general house maintenance work. The plaintiff was employed by the defendant as a truck driver, performing deliveries of food to supermarkets, hospitals, restaurants and the like. It would appear that he commenced this work in approximately 1997 or 1998 and that he performed a full working week, together with some overtime. His previous work history had included truck driving, deliveries, and work as a landscape gardener. The plaintiff had suffered a previous facial injury to the nose in 1992, this resulting in surgery on two occasions. He suffered from no infections or the like thereafter and described his recovery as being 90-95 per cent.

4 It would also appear that all that is involved in this case by way of weekly payments of compensation is such payments for 35.5 weeks at a rate appropriate for partial incapacity. I would refer to T85, 86 and 92. Payment of reasonable medical and like expenses is also sought.

5 Whilst the plaintiff’s pleadings were specifically amended to include the course of his employment until 2 August 2004, it is quite apparent that there was only one incident of injury and that this occurred on 30 January 2001. There was no contest as to the proposition that the plaintiff suffered injury to his face on that day and that he was in the course of his employment with the defendant when it occurred. In essence, it so occurred when the plaintiff, whilst making deliveries, opened the side door of his truck and was struck in the face by an unsecured trolley, which had moved. The plaintiff subsequently lodged a claim for compensation, describing the part of the body affected as being the face. That claim form seems to have been completed on 1 February 2001.

6 The plaintiff’s claim was accepted and he was paid weekly benefits and medical and like expenses. It would seem that the plaintiff returned to work with the defendant on 7 March 2001, but was placed on light duties. These seem to have been in the nature of a “jockey” on delivery trucks and the impression given by the plaintiff in his evidence was that he was really doing very little. During the months following the accident, he also suffered from some depression and was referred by his treating general practitioner, Dr Shapero, to a psychologist. He benefited from this. In any event, some concerns ultimately arose as to how well the plaintiff was coping with his work. There was a perception that he was unsteady on his feet and that his speech lacked clarity and coherence. The plaintiff appears to have ceased work with the defendant in mid-2001. Thereafter, the only work in which he has been engaged has been that involving the vending machines business and ongoing work on a part-time basis, performing some painting, home maintenance work and similar duties.

7 The plaintiff had apparently continued to receive some weekly payments, presumably at times on the basis of a partial incapacity. In any event, by letter dated 21 May 2002 the plaintiff was advised that his weekly payments would be terminated pursuant to s114(2)(c)(i) on the basis that he had returned to work as a self-employed person or to employment. Pursuant to s114(3), it was considered that he had obtained payments fraudulently. He was notified in the same letter that payment of his ongoing medical and like expenses would also be terminated. The termination of all benefits was not challenged. The basis of the termination of weekly benefits is not further described in the letter of 21 May 2002, but in all probability it was referring to the fact that the plaintiff’s wife ran a small business relating to the operation of vending machines, dealing with soft drinks and the like. The plaintiff had been taking an active role in this, performing duties such as collecting from machines, restocking when necessary and the like. Whether the plaintiff in fact received any direct remuneration in respect of this activity seems doubtful. Whatever may have provoked the termination of benefits, the fact remains that it was not challenged at the time. Whilst, with the passage of time, it is somewhat difficult to work out exactly what occurred, it would appear that, prior to termination of benefits, the plaintiff had received weekly benefits for a period in the order of 16.5 weeks.

8 As far as medical treatment is concerned, on 6 February 2001 the plaintiff had a reduction and an osteotomy of his fractured nasal bridge, this being performed at the Alfred Hospital. In August 2002, he was an inpatient at the Monash Medical Centre, suffering from headaches and other problems. He apparently had difficulties associated with a high level of intake of medication. He was again an inpatient at the Alfred Hospital from 5 June 2008 to 15 June of that year. The diagnosis was of transformed migraines, which appear to have been secondary to Tramadol overuse. He also undertook a pain management program. He suffered from chronic facial pain and reaction by way of drowsiness to medication.

9 It would seem that he was referred to Dr Janovic in late 2011 or early 2012. He was on a high level of medication and distressed by the pain process. A change in medication took place. Dr Janovic diagnosed a chronic neuropathic pain process. In March 2012, those treating the plaintiff at the Alfred Hospital discovered an opacified maxillary antrum and the plaintiff was placed on a waiting list for surgery in relation to this. He was suffering from left sided facial pain. Further surgery was performed in October 2012. This was done at the ENT Unit of the Alfred Hospital. A right revision antrostomy was performed. The findings at surgery were of a right maxillary fungal ball and gutta-percha poking through the floor from root canal surgery. A problem with an infected tooth had been discovered. The plaintiff continued with some treatment.

10 On 5 January 2016 it was noted that he was the best he had been for some time. There had been “an immense improvement” in relation to analgesic usage. On 8 February 2016 he saw Dr Kalladka at the same practice as that of Dr Shapero. The clinical notes would indicate that he reported that he had recently been treated for facial pain issues, which may have been related to a dental abscess. Whether the evidence establishes that such dental abscess is related to the relevant injury seems arguable. Certainly Dr Shapero could not comment on that. Apparently, the plaintiff’s treating maxillofacial surgeon, who dealt with his dental problems, was Mr Michael Schenberg, but there is no report from that surgeon before me. Mr Malcolm Baxter, ENT surgeon, examining on behalf of the defendant, could not relate the dental injury to the original injury. The plaintiff has continued to see Dr Janovic on a reasonably regular basis in the order of a couple of times a year.

11 Some parts of the medical history and general history of events are vague. The above represents a synopsis, which hopefully covers, in broad terms, relevant developments.

(b)Subsequent claims and litigation – the 2007 claim for weekly payments and payment of medical and like expenses

12 Following the termination of benefits in May 2002, nothing appears to have occurred in relation to them for some years. Doing the best I can, it would seem that nothing of significance happened until December 2006. In February of that year the plaintiff’s present solicitor, then with a different firm, initiated proceedings pursuant to s134AB of the Act. What occurred as a result of this is unclear. A further application seems to have occurred in late 2009 and its fate is also unclear.

13 In any event, on 21 May 2007 the plaintiff’s present solicitor (as stated, then with another firm) issued a Writ and Statement of Claim out of this Court and in the WorkCover List. In it, the plaintiff sought weekly payments of compensation from 14 May 2002 (the date of termination of payments referred to above) to date and to continue in accordance with law. He also sought payment of reasonable medical and like expenses pursuant to s99 of the Act, along with interest and costs. The basis of the claim was the injury suffered in the accident of 30 January 2001.

14 A Defence was filed. Amongst other things, the defendant denied that the plaintiff was entitled to compensation. It alleged that he had a current work capacity. If he did have the pleaded incapacity, which was denied, it was unlikely to continue indefinitely. It was also alleged that the plaintiff had been working in a self-employed capacity whilst in receipt of weekly payments of compensation.

15 The matter came on for hearing in this Court. It was settled, with Terms of Settlement being executed and Orders being made on 27 September 2007.

16 The Orders that were made by his Honour Judge GD Lewis were as follows:

“1. The Defendant pay the Plaintiff’s costs, such costs to be taxed on the appropriate Magistrates’ Court scale, to be taxed in default of agreement.
2. Proceeding otherwise dismissed.”

17 Terms of Settlement were signed by counsel. In the preamble, there was reference to both the course of employment and the specific incident of 30 January 2001. In that preamble, there was also the following:

“…whereas the plaintiff and the defendant wish to avoid costs and expenses of litigation and compromise all matters and claims the plaintiff may have had against the defendant pursuant to the Act and in consideration of the orders made in the County Court at Melbourne on the 27^th day of September 2007 NOW IT IS AGREED AS FOLLOWS.”

18 There are then the following paragraphs:

“1. The defendant promises to pay to the plaintiff:
(a)weekly payments of compensation at the rate for no current work capacity for a further 52 weeks from 14^th day of May 2002 (“the period”), such payments to be made in accordance with law, less any income tax payable.
(b)reasonable medical and like expenses for the period together with reasonable chemist expenses only to date (upon proper service on the defendant of relevant accounts and receipts) but it is agreed that the total of such chemist expenses is not to exceed $5,000.00.
in full and final settlement of the claim.”

19 The remaining paragraphs deal with an indemnity given by the plaintiff to the defendant in respect of Centrelink payments and the like and an acknowledgement that he has been advised that he may be liable to pay some amount in respect of the provision of medical and like services as a result of the settlement. As stated, the Terms of Settlement were signed by counsel for each party.

20 It is apparent from the above that this was purported to be in full and final settlement of all claims by the plaintiff to weekly payments and to the payment of medical and like expenses. The effects of this shall be discussed subsequently.

(c) The 2008/09 claim for payment of medical and like expenses

21 In approximately October 2008, the plaintiff made another claim for payment of reasonable medical and like expenses. By a letter dated 17 October 2008, the defendant, via its insurer, rejected this claim. The letter of rejection contained specific reference to the settlement of 27 September 2007. Whilst that was given as the reason for the decision, the letter also claimed that the rejection had been because the claimed medical service for a medical assessment and multi-disciplinary team assessment by an occupational therapist, psychologist and physiotherapist was not a reasonable and appropriate medical and like expense. It may be that the letter that provoked this response is somewhere in the multitudinous pages of documents put before me, but I cannot find it or any reference to in in the Indices of the Court Books. What is obvious is that the rejection made clear reference to the earlier settlement.

22 In any event, the plaintiff commenced proceedings issued out of the Magistrates’ Court. Again, the plaintiff’s present solicitor would appear to have been the legal representative involved. The Statement of Claim purports to seek the payment of reasonable medical and like expenses to date and to continue in accordance with the provisions of s99 of the Act. However, on the first page of the document the amount of the claim is specified as $5,000. The injury referred to is that of 30 January 2001, although there is also reference to the course of employment. The Particulars of Injury are specified in this Statement of Claim (in the claim in respect of weekly payments, there was only a reference to the plaintiff suffering injury as a result of being struck in the face by a trolley). The Particulars of Injury are listed as follows:

· injury to the nose;

· chronic depression and anxiety;

· Post-Traumatic Stress Disorder;

· depression;

· pain and suffering;

· addiction to medication;

· Chronic Pain Syndrome;

· neurological injury to the nose and face;

· scarring to nose;

· headaches.

23 It is also alleged that the plaintiff is claiming that the decision to refuse ongoing medical and like expenses due to the worsening and change in the plaintiff’s circumstances is unlawful and against the weight of evidence.

24 The defendant filed a Defence. It contains predictable responses, with a specific denial of the allegation of worsening circumstances and the like.

25 Further, the defendant set out the following Particulars of Defence:

“(a)   The Plaintiff brought earlier proceedings in respect of his entitlements under the Act for the same injuries as alleged at paragraph 3 of the Statement of Claim (CL-07-01861).
(b)    Those proceedings were dismissed and the terms of settlement determined the Plaintiff’s entitlements under s99 to limited payments for 52 weeks from 14 May 2002.
(c)    The Plaintiff has no further entitlement under s99 in respect of these injuries.”

26 Whilst the specific documents are not before me, it is asserted by the defendant in its Defence relating to the present case that, on or about 29 April 2010, the plaintiff agreed to a dismissal of the Magistrates’ Court proceeding with each party to bear its own costs. It is further alleged that on or about 30 April 2010 the Magistrates’ Court proceeding was dismissed with no order as to costs. There was no argument concerning the validity of these assertions and, whilst I do not have before me the specific documents, I accept that this is what occurred and that the dismissal with no order as to costs took place as alleged.

(d) The present litigation

27 The next events in the litigation history concern the present case. On 16 December 2013 the plaintiff completed a WorkCover claim form, although, for reasons which are not entirely clear, this does not seem to have been received by the defendant’s WorkCover insurer until 30 May 2014. The claim form would not appear to have been filled in by the plaintiff, but was signed by him. Whilst parts of it are a little difficult to read, what is clear is that it is again based on the injury of 30 January 2001. The details of injury appear to read, “sleep apnoea, chronic pain, infection in face, depression and stress, neurological injury, dental injury”. The description of how the injury occurred appears to be as follows:

“Had injured nose from work injury and developed complications from injury and medications. Medications masked the injuries and dental injury arising from facial and internal infection.”

28 In answer to the query as to when the plaintiff first noticed the injury, the response is extremely difficult to read but appears to be:

“On day of accident and got worse and over time condition got worse.”

29 The date of cessation of work is said to be “about 30/8/13”.

30 A considerable number of medical practitioners are listed as having treated the plaintiff’s injury. There is a question that reads:

“If you have not returned to work, do you think that there are any issues that would delay or prevent you from returning to work?”

31 To this, the plaintiff has responded:

“Last worked for myself about 3½ months ago part-time painting work for friends.”

32 I might say that, in relation to this last-mentioned proposition, the plaintiff’s part-time work has continued to date. It is possible that the cessation of work referred to was due to reasons of medical treatment, but this is not clear from the evidence.

33 In any event, the insurer, which, as stated, does not seem to have received this form until 30 May 2014, responded on 27 June 2014. The plaintiff’s claim, which is described as one for weekly payments and for medical and like expenses, was rejected. The letter of rejection is quite a lengthy one. There is a specific reference to the prior claim for compensation. It is pointed out that the plaintiff’s entitlement to weekly payments and medical and like expenses was terminated by notice effective 12 February 2002. There is reference to the County Court action and the Terms of Settlement. There is also reference to the Orders made by the County Court. It is stated that, by reason of the dismissal that then occurred, the plaintiff is prevented from claiming further compensation in relation to the injury suffered on 30 January 2001 or consequential injuries. There is also reference to the proposition that the medical and like expenses for which the plaintiff was claiming were incurred between 2007 and 2011 and thus the claim for compensation was not lodged within six months after the date of the relevant services. This is not a point that received any attention during the conduct of the case.

34 The next thing that happened would seem to be the issuing of the Writ and Statement of Claim which form the foundation of the present action. The precise date of the issuing is not entirely clear, but would appear to be 4 September 2015. This is in excess of 14 months after the rejection. Earlier in this Judgment there has been some broad description of the factual background of the Statement of Claim and of the Defence. I turn now to a more specific summary of the contents of those documents.

35 The current Statement of Claim relies upon the accident of 30 January 2001, although this was later amended to include the course of employment until 2 August 2004. That amendment does not seem to take matters further for the purposes of the present case. As discussed earlier, it is not suggested that anything other than one incident of injury is relied upon and that incident occurred on 30 January 2001.

36 In the Statement of Claim, it is further asserted that the plaintiff had lodged a claim for compensation by way of weekly payments and medical and like expenses on or about 1 February 2001 for injury “to the face”. It is then asserted that such claim had been accepted and weekly payments, together with medical and like expenses paid. It is then claimed that the plaintiff has developed other medical conditions and injuries consequential to the accident. These are said to be the following:

“a.     Injury to nose
b.    Stress, anxiety and depression
c.    Chronic pain
d.    Reliance and dependence on medication
e.    Sleep apnoea
f.     Infection in face and nose
g.    Facial discharge
h.    Neurological injury
i.     Dental injury secondary to nasal and facial injury”

37 It is then pleaded that, on 16 December 2013, the plaintiff lodged a claim for weekly payments and medical and like expenses, which claim was rejected, which rejection is described as being unlawful and against the weight of evidence. The Prayer for Relief sets out the following claims:

“1.     Weekly payments at the no current work capacity rate from 30 August 2013 to date and continuing in accordance with law.
2. Reasonable medical and like expenses in accordance with the Accident Compensation Act 1985.
3.     Costs.
4.     Interest pursuant to statute.
5.     Such further order or other order as the court deems fit.”

38 The current Defence is the Further Amended Defence of 10 October 2016. In this document, the defendant admits employment. It further admits that the plaintiff, on or about 1 February 2001, made a claim for compensation for weekly payments and for medical and like expenses for injury to the face. It admits that the claim was accepted and that weekly payments were made in accordance with the Act, in accordance with the Order of his Honour Judge GD Lewis of 27 September 2007 and in accordance with the Terms of Settlement of that date. It also admits the lodging of a claim on 16 December 2013 for weekly payments and medical and like expenses.

39 In its Defence, the defendant does not admit the occurrence of injuries arising in the course of employment, other than that a claim had been made in respect of alleged injury to the face on 30 January 2001. It does not admit the Particulars of Injury that have been referred to above or, for some reason which is unclear to me, that the claim had been rejected and the matter referred to conciliation, or that a genuine dispute had been found to exist.

40 As might be expected, it denies that the rejection of the claim was unlawful and against the weight of evidence. The Defence also denies entitlement to compensation and incapacity. There is denial of an entitlement to weekly payments exceeding 104 weeks in aggregate on the basis of the existence of a capacity for work. Further, it specifically refers to the Orders of the County Court and the Terms of Settlement of 27 September 2007. It also refers to the Complaint of 9 September 2009 in the Magistrates’ Court at Melbourne and to the dismissal there ordered. It asserts the plaintiff is estopped from claiming or maintaining the relief sought with respect to the injuries pleaded in the Statement of Claim. It states that the defendant relies upon the doctrine of res judicata in that regard.

41 Whilst not a great deal was made of the following, it also asserts that the plaintiff did not make the claim as soon as practicable after the incapacity arising from the injury became known. It also refers to the principles enunciated in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45. It further alleges that accord and satisfaction with respect to all the injuries referred to in paragraph 6 of the Statement of Claim exists because of the Orders of this Court and the Terms of Settlement. A similar allegation is made in relation to the Orders of the Magistrates’ Court of 30 April 2010.

42 Thus, whilst there are other issues pleaded, it can be seen that matters relating to estoppel, res judicata and accord and satisfaction play a substantial part in this dispute, although at T57 Mr Griffin appeared to abandon accord and satisfaction.

(e) The evidence on behalf of the plaintiff

43 The evidence on behalf of the plaintiff that is germane to the central issues could be summarised as follows.

(i) The plaintiff

44 The plaintiff agreed that he has been doing painting and maintenance work. Prior to the accident, he had been a driver who worked long hours. After the accident he was employed as a “jockey”. He ceased those duties because of concerns on the part of the defendant. Apparently some sort of WorkCover inspection took place and he was considered to be a danger to those that he was working with due to unsteadiness, lack of coherence of speech and the like.

45 In relation to the vending machine business, he said that it was small and that his limited participation in it was known to the defendant. He was not paid for engaging in it. He also commenced the part-time duties related to maintenance and painting. He has continued to work a couple of days per week. After a separation from his wife, he took over the vending machine business. Ultimately, in approximately 2012 or 2013, that business came to an end. He has reconciled with his wife.

46 The plaintiff described the pain which he has in his head, describing it as being like a constant toothache. He also said that he had had it since the accident – see T68. In relation to the sleep apnoea which is now being claimed, he said that his sleeping had improved. He underwent the sleep apnoea program at the Alfred Hospital in 2009. He did have a lot of dental surgery performed.

47 In relation to the business, the plaintiff stated that he had operated this from 2007 until 2012 – see T71. He attributed the ultimate failure of the business to his inability to service the machines. He agreed that he had a capacity for work, but that his body was “sort of like telling me to slow down” – see T74.

48 In cross-examination, the plaintiff agreed that he had returned to work after the accident for a period of approximately eight months or longer. He stated that the facial pain of which he complains is something that has been constant from when he suffered the accident – see T79. He also agreed that, as far back as December 2001, he had been suffering from depression.

49 The plaintiff agreed that he continued to work as a handyman and painter after August 2013. The significance of this is that the plaintiff is seeking weekly payments from 30 August 2013. He stated that he had been so working, save for times when he was having surgery and the like. I would refer to what was said at T99.

50 The particular significance of this is that it is agreed that the plaintiff has had 68.5 weeks of weekly payments. I would refer, for example, to the discussion at T85-86 and T92-93. Bearing in mind ss91E and 93C of the Act, there appears to be a strong argument that the total number of weeks for which the plaintiff is entitled to weekly payments of compensation is 104 unless ss93C, 93CA or 93CD apply. It is not apparent that any application pursuant to s93CA or 93CD has been made in the present case. Thus, as the plaintiff continues to demonstrate a capacity for work, arguably the maximum amount of his claim is 104 weeks of which he has already received compensation for 68.5 weeks. That this is so appears to have been conceded – see T92-4.

51 Returning to the sequence of evidence, the plaintiff was cross-examined further about his working capacity, agreeing that he told Dr Shapero in May 2015 that he was still able to do up to 20 hours a week painting. He was also able to do certain repair works and the like. The plaintiff also stated that, in approximately 2007, he tried to work both the vending machine business and the painting/repairing business at the same time. Because of being absent due to disability and possibly because of other problems, this did not work out. In any event, it would seem that he had an entity called Jammick Constructions Pty Ltd, which he operated with a gentleman called Mr Michael O’Dowd. This entity seems to have been established in approximately 2011. Its primary business was painting. There also seems to have been a different entity called Ice Concepts, which may have been a name for the vending machine business. The financial links between the two, and where the money in fact went, is somewhat complicated – I would refer to T105. However, the plaintiff stated that, at least at the time of his tax return for the 2015 financial year, most of the income was from maintenance work.

52 In February of this year, the plaintiff had dental surgery for an abscess on the side of the mouth. He stated that he got an excellent result. He did not allege that any interference with sleep in relation to this in turn interfered with his ability to be employed, nor did dental problems generally cause a problem. He was emphatic that dental problems did not now prevent him from working – see T108. He repeated that he was working on and off “all the time”.

53 Essentially, the plaintiff agreed that what he had sworn in an affidavit of 3 February 2007 prior to his court case of September 2007 was technically incorrect, in that he was obtaining income from his activity as a maintenance man and painter at the time. The affidavit, sworn on 3 February 2007, included a reference to the fact that, as at December 2006, the plaintiff had not been able to continue or return to any employment. It would also appear that, at a date which is uncertain but apparently in comparatively recent times, the plaintiff did some work for his son and a friend of his, the two of them having started a business which performed shop-fitting work. That business commenced operating in March 2015 – see T115. The plaintiff’s work for them extended over three weeks and he seems to have received somewhere between $6,000 and $7,000. He also did a private job for his son’s friend that seems to have netted $1,424. The details of what amount was paid for what work are comparatively complicated. The bottom line seems to be that, in the space of about three weeks, the plaintiff earned approximately $7,500.

54 In summary, it seems quite apparent that the plaintiff has at times exhibited the capacity to earn quite substantial sums of money over a few weeks. It may be that he was paid generously because of his son being involved, but nevertheless he has demonstrated a capacity to earn quite a reasonable income in recent years. Of course, this has been interrupted at times when surgical procedures were being undertaken. It is also apparent that, whether or not it is due to the comparatively complex situation, in the past the plaintiff has not been completely forthcoming as to his employment or self-employment activities.

55 Turning to the medical evidence, given the nature of this application it seems to me that the particular relevance of such evidence relates to whether or not there has been a change in the circumstances of the plaintiff’s health and capacity. In other words, and focussing for the moment upon the claim for weekly payments of compensation, does the evidence establish a change in the plaintiff’s health and employment capacity since the dismissal of the claim for weekly payments and the Terms of Settlement of 27 September 2007? Whilst the medical material may also have some general relevance, it seems to me that the matters to which I have just alluded are of particular relevance.

56 I shall deal firstly with the plaintiff’s treating general practitioner, Dr Shapero. A number of his reports were tendered and he gave oral evidence. His earliest report was of 15 October 2001. He took a history of the accident and of the plaintiff complaining of significant discomfort in and behind his nose and across the front of his face. He was also feeling depressed. Dr Shapero certified the plaintiff as being unfit for work until 7 March 2001 and thereafter considered him to be improved sufficiently for him to return to modified duties.

57 Thereafter, the plaintiff complained of recurrent facial pain and discomfort and required repeated courses of antibiotics and Cortisone-based nasal sprays. He was also taking anti-depressant medication and had been referred to a psychologist, from which referral he had gained significant benefit. At that time, Dr Shapero was of the view that the plaintiff’s chronic and variable symptoms would continue for some time and he found the likely duration of the plaintiff’s partial incapacity difficult to estimate.

58 Dr Shapero reported again on 21 February 2002. On this occasion Dr Shapero referred to the fact that the plaintiff had undergone a worksite assessment in December 2001 and had been assessed as being unsafe for any work with the defendant. The plaintiff disagreed with this, although still complaining of chronic headaches and sinus congestion. He was referred to an ENT surgeon, Mr Michael Silverstein, who recommended further corrective surgery. The plaintiff was still suffering from some depression and frustration. In relation to work capacity, Dr Shapero expressed the view that the plaintiff was able to continue with modified work duties and no change to that situation was anticipated in the near future.

59 The next report from Dr Shapero is dated 6 June 2010. This report referred to a number of specialists to whom the plaintiff had been referred. In addition to Mr Silverstein, he had seen Mr Vallance, also an ENT surgeon, who advised against further surgery and recommended referral to a neurologist. In April 2002, the plaintiff consulted Mr Peter Dohrman, neurosurgeon, who was of the view that there were no relevant neurological components to the plaintiff’s problem. In June 2002, the plaintiff saw another ENT surgeon, Mr Peter Thompson, who was also of the view that sinus surgery would not be helpful. He recommended referral to a neurologist. In July 2002, the plaintiff consulted a neurologist, Mr Ernest Butler. The plaintiff was complaining of daily headaches, which Mr Butler thought may in part be related to his depression. The plaintiff was admitted to the Neurology Unit at the Monash Medical Centre for three days in August 2002. Mr Butler had suspected an overuse of analgesics and cessation of this was organised.

60 Whilst no reports from these treating specialists were put before me, I appreciate that this was treatment that happened some 14 years ago and that Dr Shapero has given a very helpful summary of the treatment in his detailed reports. It is apparent that the plaintiff was having substantial problems and treatment as long ago as 2002.

61 Returning to Dr Shapero’s report of June 2010, he went on to say that the plaintiff continued to suffer from chronic and unremitting facial pain and headaches, as well as depression, between 2003 and 2006. The plaintiff continued to take analgesic medication and anti-depressants. He also suffered frequently from infected sinuses. Following a CT scan in late 2005, the plaintiff was referred again to Mr Thompson and sinus surgery was performed in June 2006. However, despite this, the plaintiff’s chronic facial pain “remained unremitting”. He also continued to be depressed. It is to be remembered that the plaintiff’s County Court action was dismissed and Terms of Settlement were signed on 27 September 2007.

62 In 2008 the plaintiff again consulted a number of neurologists at the Alfred Hospital. He underwent a lignocaine fusion and was commenced on anti-migraine medication. He was also referred to the Caulfield Pain Management Centre, where he underwent a full assessment and had considerable treatment. A psychiatric assessment in early 2009 confirmed clinical depression.

63 During 2009 and 2010 the plaintiff continued to attend at the Alfred Hospital Neurology Department with his medication unchanged. He also had a formal sleep study.

64 In his report of June 2010, Dr Shapero indicated that the last time that he had seen the plaintiff was on 23 September 2009. The plaintiff was continuing to suffer chronic facial pain that was more manageable and not as severe as previously. His condition was fairly stable. Dr Shapero also indicated that his opinion concerning the plaintiff’s ability to work had not changed. He thought that the plaintiff had a capacity for part-time work, but not in a refrigerated environment or where there was excessive physical exertion. Assuming that there was no significant deterioration, he thought that “…there is no reason why he could not continue working for some years”.

65 Dr Shapero also gave oral evidence. In it, he stated that the plaintiff’s diagnosis and condition had changed very little for some period of time – see T120. He referred to the chronic facial pain and migraine type pain, the severity of which was variable. He stated that, given the chronicity of symptoms and the length of time that the plaintiff had suffered from them, he was pessimistic about there being any further improvement. However, he added that, save for times of exacerbations or during times of surgical procedures, the plaintiff had always had a capacity for work. Although not being a specialist in the area, he did not relate the plaintiff’s sleep apnoea to the relevant injury. However, the neurological pain and migraine headaches were so related. Indeed, he repeated that the plaintiff has had a work capacity “…in most of the years that I have known him since this 2001 injury” – see T124.

66 Dr Shapero referred to the unpredictability of such work capacity. Indeed, he repeated his observations concerning capacity as follows:

“…so throughout the last 15 years, other than when Mr Lloyd had exacerbations of symptoms or when he was undergoing other procedures, he’s always had a work capacity, and I think continues to have that capacity.” – see T124

67 In cross-examination, it was put to Dr Shapero that, when seen on 5 January 2016 at the Alfred Hospital by a visiting neurologist, Dr Hutton, it was noted that the plaintiff was the best that he had been for some time. Dr Shapero pointed out that, in addition to the neurologist, the plaintiff was still seeing pain management people and that he had had further migraines, ongoing jaw and face pain and the like. He also agreed that some of the plaintiff’s symptoms were consistent with a Chronic Pain Syndrome and that there had been a depressive adjustment disorder reaction to the physical injury.

68 Dr Shapero agreed that the plaintiff’s sleep apnoea problems do no stop him from working. In answer to a question of mine, Dr Shapero stated that the plaintiff had been more stabilised than he was for “two or three years or so” – see T130.

69 The other medical witness who gave oral evidence was Dr Janovic. Dr Janovic, who has also treated the plaintiff, is a pain clinician based at the Caulfield Hospital. In his earlier report of 1 August 2012, Dr Janovic stated that, when he first saw the plaintiff, which seems to have been in 2011, the plaintiff was significantly affected by the pain process, with flare-ups related to increases in physical activity. His sleep was disturbed and he had a significant reactive depression. He had been receiving psychological treatment.

70 Dr Janovic continued to see the plaintiff in 2012. When reviewed in May, the plaintiff reported that the changes in medication had helped. He was less drowsy through the day and sleeping better at night. He was apprehensive about upcoming surgery. Dr Janovic thought that the plaintiff had developed a chronic neuropathic pain process related to previous surgical intervention. He was also of the view that there was significant reactive depression present, in addition to an ongoing Chronic Pain Syndrome. The plaintiff does not appear to have informed Dr Janovic about any work activities. Dr Janovic thought that the plaintiff was not capable of any form of physical activity and that there was effectively no likelihood of him being able to return to the workforce.

71 Dr Janovic reported again on 30 June 2016. He recounted many of the matters raised in the earlier report. There is a reference to the fact that:

“In the late 2000’s (sic) he had a very brief stint in a work situation. His wife was involved in a vending machine business and he tried to assist her but found this very taxing.”

72 It would appear that the history given to Dr Janovic minimised at least the duration of the plaintiff’s involvement with the vending machine business, if not his degree of such involvement. There is also reference to the fact that the plaintiff had been doing “very part-time painting work, more as a hobby, as well as being involved on a very casual basis with light handyman type duties”. Again, this would seem to minimise the plaintiff’s activities as a handyman and painter. Indeed, Dr Janovic concluded by stating that the plaintiff should be considered totally and permanently incapable of any form of employment, a proposition that does not sit particularly well with what is otherwise known of the plaintiff’s activities or what is stated by the plaintiff himself and by the treating general practitioner, Dr Shapero. I might say that it is not certain from that report when Dr Janovic last saw the plaintiff, but there is a reference to seeing him regularly.

73 Dr Janovic also gave oral evidence. He confirmed that he saw the plaintiff at reasonably regular intervals, these being sometimes as much as six months apart and at other times as close together as monthly consultations. In relation to the medication taken by the plaintiff, Dr Janovic stated that they try and work with co-analgesics and adjust them so that the regular analgesia is kept to a minimum. That has been the process from 2012 to the present time. He also confirmed his opinion that the likelihood of the plaintiff being able to return to the workforce was virtually nil. His diagnosis was of a Chronic Pain Syndrome of facial origin. He also referred to a significant reactive depression anxiety. He regarded the plaintiff as a very genuine individual who was trying to maximise what potential he had. He stated that the plaintiff was in a well-established Chronic Pain Syndrome and there was little likelihood of any significant change.

74 In cross-examination, Dr Janovic said that he thought that the plaintiff’s adjustment to his state had improved. His level of medication had been lowered and he had improved in some areas, although employment was a different question. In recent times, there had been more occasions when the plaintiff reported that his headaches had been better, although there have been flare-ups. He agreed that it would appear that he had seen the plaintiff only three times in 2015 and apparently in May and August 2016. He also expressed the opinion that most of the plaintiff’s issues have been long-term, this being in the context of questioning concerning matters dating back to 2001. For example, the chronic pain situation dates back to 2001 or 2002. He was also aware of long-standing analgesic dependence problems.

75 In relation to the remark in his report that the plaintiff had had “a very brief stint in a work situation”, he thought that was in the realm of weeks and months, although not totally sure. The way it was portrayed by the plaintiff to Dr Janovic was that it was an attempt that ceased after a short period, the feeling of Dr Janovic being that this was possibly up to two months. The plaintiff told him that this brief attempt was terminated due to an increase in pain from increasing activity. Dr Janovic’s understanding of the plaintiff’s handyman work was that it was very casual, intermittent and for a friend “or something” – see T46. He was not aware of the plaintiff being employed on a part-time or full-time basis.

76 When pressed further about his understanding of the plaintiff’s level of part-time work activities, he stated that the plaintiff did not quantify it but that the impression given was of “Several hours maybe several days a week…” – see T49. He expressed the opinion that, in patients such as the plaintiff, 20 hours in one week, if sustained over more than some weeks, would be beyond them on a long-term basis. The impression that he gained was of some tinkering, touching-up of paint and the like. He also stated that the plaintiff had mastered a lot of the approaches that had been suggested to him, but had flare-ups at times. The approaching court case may have been causing him some anxiety.

77 In re-examination, Dr Janovic thought that the plaintiff would be capable of painting a room, provided it was not on an ongoing basis over hours and days.

78 In addition to the oral and written evidence of Dr Shapero and Dr Janovic, some medical reports from witnesses who were not called were placed before me. Quite a few of these do not take matters further. One medico-legal report obtained on behalf of the plaintiff was partially of some relevance. That is the report of Mr Peter Mangos, general surgeon, of 24 September 2007. It is to be remembered that the Orders of his Honour Judge GD Lewis and the Terms of Settlement are dated 27 September 2007.

79 Mr Mangos reported that, as at the date of his examination, the plaintiff was complaining of severe pain in the face, the sinuses and the nose. He had difficulty, especially at night. He had headaches which became migrainous, which were often severe, making him vomit and causing his vision to become blurred. Mr Mangos diagnosed post-nasal fracture and post-surgical Chronic Pain Syndrome involving the face and nose; chronic sinusitis; depression and cosmetic disfigurement of the nose. Mr Mangos expressed the view that the plaintiff was not capable of returning to any form of regular, safe, productive work. He considered the Chronic Pain Syndrome, sinusitis, nasal scarring and difficulties breathing to be permanent. He repeated his opinion that the plaintiff was totally and permanently incapacitated for work. He was also of the view that any further surgery was unlikely to be of any substantial benefit and that the plaintiff should “stay retired”. His opinions in relation to work capacity seem to have been at least partially based upon a history given to him by the plaintiff that he was not working.

80 The relevance of a medical report expressed in these terms just three days prior to the Orders being made dismissing the claim and the Terms of Settlement being signed is apparent. The Orders were so made and the Terms so signed at a time when Mr Mangos very recently had expressed the view that the plaintiff was totally and permanently incapacitated for work. The subsequent development of note is that the plaintiff has indeed been working, albeit on a part-time basis. If the opinion of Mr Mangos is correct, there are difficulties in arguing that there has been some deterioration in the plaintiff’s condition to the extent that the clear Orders of this Court and the Terms of Settlement should not operate.

81 I should add that the report of Mr Mangos was addressed specifically to the plaintiff’s current solicitor, who, at that time, worked with a different firm, but who would appear to have continued to represent the plaintiff. In other words, the contents of the report of Mr Mangos should have been known to the plaintiff and his solicitor at the time that the Orders were made and the Terms signed and should have continued to be so known.

82 The defendant had the plaintiff examined by Associate Professor Donald Marshall, plastic and reconstructive surgeon, on 22 August 2007. He came to the conclusion that the plaintiff had a capacity for his pre-injury employment, without any physical restrictions. Thus, there were conflicting medical opinions at the time that the matter was before this Court.

83 More recently, the defendant has had the plaintiff examined by Mr Baxter, ENT surgeon, on 23 March 2016. He noted that the plaintiff was complaining of facial pain and that this had continued “more or less unabated since his original injury of 30.01.2001”. The plaintiff also stated that he had been depressed, but was no longer taking anti-depressants, as he had learned to cope by other means. He had recently suffered a right facial infection which, in the opinion of Mr Baxter, was probably due to a dental abscess and was cured by removing an infected tooth. He also complained of snoring and sleep apnoea.

84 Mr Baxter’s diagnosis was that the plaintiff had a chronic mid-facial pain syndrome. He did not believe that the plaintiff had a current capacity for pre-injury employment, as work involving trucks and traffic and the like would not be suitable because of the medication which the plaintiff was taking. However, Mr Baxter noted that the plaintiff was already doing work in a self-employed status in painting and maintenance and thought that he was capable of performing suitable employment within limitations relating to fatigue and pain.

85 There is nothing in Mr Baxter’s report to suggest that the plaintiff’s symptoms have altered over the years or that there has been some deterioration since 2007 which has had an impact upon the plaintiff’s earning capacity. There is no suggestion of anything that provoked a noteworthy deterioration in the plaintiff’s condition or aggravation of his symptoms.

86 That concludes my summary of the evidence. I now move on to the arguments advanced by counsel.

The submissions of counsel

87 I shall set out the submissions of counsel in the order in which they were presented.

(a) Submissions on behalf of the defendant

88 The submissions of Mr Griffin on behalf of the defendant could be summarised as follows.

89 The plaintiff’s capacity for employment has remained the same throughout. When his capacity prior to the 2007 Orders and Terms of Settlement is compared with his capacity subsequently, there has been no change. Apart from the question of capacity, the only additional injuries that have been added over the years are the sleep apnoea, the facial infections and the tooth problems. The plaintiff has conceded that those additional injuries have not prevented him from working – see T107 and 108. Those factual matters and the settlement and orders involved clearly create a situation of issue estoppel and/or res judicata.

90 In relation to the 2007 proceedings, payments had been terminated because the plaintiff had returned to employment, thereby clearly demonstrating capacity. The notice terminating payments informed him that he had no continuing entitlement because the incapacity founding that entitlement was no longer there. The evidence is very clear that the plaintiff has continued to work since that time. Further, Dr Shapero gave evidence that the plaintiff has had a work capacity in most of the years since the 2001 injury – see T124.

91 In the Statement of Claim of 20 April 2007, the plaintiff specifically alleged that he suffered injury as a result of a trolley “falling into his face” on 30 January 2001. The Defence contains an admission that on or about 1 February 2001 the plaintiff lodged a claim for compensation in respect of injury to the face in the circumstances described. What is clearly implied in what is alleged in the Statement of Claim is that the consequences of the facial injury caused the plaintiff to have incapacity. However, paragraph 8 of the Defence clearly asserted that the plaintiff was not entitled to compensation; that he had a current work capacity; that if he had no current work capacity (which was denied) such incapacity was unlikely to continue indefinitely; and that the plaintiff had been working in a self-employed capacity whilst in receipt of weekly payments of compensation.

92 There is no dispute but that the plaintiff has been employed since returning to work with the defendant. He has helped his wife in the vending machine business. That was transferred to him. By 2007, he was in fact doing additional work. He gave details of the vending machine business and his work in relation to it at T101. The overall thrust of the evidence is that he was in paid employment in 2007 and at the time that the proceedings were settled. At that time, and on the basis of paragraph 8 of the Defence (which has been summarised above), the only issue between the parties was incapacity. There was no dispute concerning injuries that flowed from the plaintiff’s facial wounds. Paragraph 7 of the Statement of Claim of April 2007, which Statement of Claim was the foundation of the Orders of the Court and the Terms of Settlement, asserts that the plaintiff had no current work capacity and that this was likely to continue indefinitely.

93 Further, the Terms of Settlement referred to the injury as having been sustained throughout the course of employment and on or about 30 January 2001. However, there is no evidence of the injury being suffered in any other way apart from the specific incident. In relation to weekly payments, the Terms of Settlement provided for 52 weeks of payment from 14 May 2002. Accordingly, payment was made for a limited period from the time at which payments were terminated, which was some four years earlier. The settlement was in full and final settlement of the claim, which was for continuing payments of compensation in respect of no work capacity, which incapacity was likely to continue indefinitely. Because of the Defence, there was only one issue that was the subject of consideration and which was the subject of the Court’s Ruling that the proceedings were to be dismissed.

94 Further, as at the time of the Orders and Terms of Settlement, a concurrent application pursuant to s134AB of the Act was on foot and this involved all the injuries that have subsequently been relied upon, save for the sleep apnoea, the facial infection and the dental problem.

95 In the 2008 Statement of Claim for medical and like expenses of $5,000, the Particulars of Injury are set out. Again, the only items not included and subsequently relied upon are the same three injuries added in the 2013 claim form. In paragraph 6 of the Statement of Claim of December 2008, it is also asserted that the ongoing medical and like expenses claimed were due to the worsening and change in the plaintiff’s circumstances.

96 In its Defence, the defendant admits the claim arising out of the incident of injury, but specifically denies that the plaintiff was entitled to relief sought on the basis of the earlier settled proceedings. It asserts that the earlier proceedings related to the same injuries, also referring to dismissal and the Terms of Settlement. The orders subsequently made in the Magistrates’ Court were that the claim be dismissed, but that there be no order as to costs. Accordingly, any medical expenses associated with a worsening or change in circumstances were dismissed on the basis they had been the subject of the earlier settlement. The fact that there was no order in respect of costs could be seen as indicating that the plaintiff walked away, apparently acknowledging no entitlement to the medical expenses claimed.

97 All the injuries listed in the 2008 proceedings before the Magistrates’ Court have been identified and, whilst the Statement of Claim in the 2007 proceedings does not identify them, they have been the subject of treatment and, logically, would constitute the injuries which were the subject of the Order and the Terms of Settlement. The early reports of Dr Shapero refer to such matters as recurrent facial pain, psychological treatment, chronic headaches, sinus congestion and the like. The history of medical treatment prior to the 2007 action clearly embraces all the injuries subsequently listed in the 2008 (or early 2009) action. It is also apparent that Mr Mangos had before him a considerable number of medical reports and his report was in the hands of the plaintiff’s solicitor shortly before the matter was settled in the County Court.

98 It is to be noted that, for example, Mr Mangos had obtained a history of sleeping difficulties. In any event, the evidence is that the sleep apnoea is not an issue that would have any impact upon work capacity. There were reports dealing with psychiatric injury and all these reports would have been in the contemplation of the parties when the matter was settled. All these reports represent medical material that would had to have been exchanged.

99 The conclusion is that, by the time of the Orders and Terms of Settlement in the County Court action in September 2007, the injuries had been identified, treatment had been provided in respect of them and there was no issue raised by way of a defence that any of the injuries were not injuries that flowed from the particular incident.

100 In relation to any ongoing medical and like expenses, potentially there could be some ongoing entitlement if the requirements of s99AD(5) are satisfied. In the present case, no details of medical expenses have been provided, despite enquiries by the Court. There is no evidence that there are medical expenses which have been incurred and which meet the requirements of s99AD(5). In the absence of any specific material to satisfy that exception, the entitlement of payment of medical and like expenses would have expired 52 weeks after the termination of weekly payments – that is, in August 2004.

101 There are marked differences between the situation in the present case and that in Fuat v One Steel Ltd [2010] VCC 584. In the present case, there is no evidence of a deterioration in the plaintiff’s condition or any incapacity flowing from it. In the present case, there has been no change which would entitle the plaintiff to revisit the situation. Further, in the present case, at the time of the dismissal, the only issue was one of incapacity and there was not the multitude of issues as existed in the case of Fuat on the authorities referred to therein. In the present case, the position has been static in relation to both the plaintiff’s injuries and his capacity.

(b) The submissions on behalf of the plaintiff

102 The submissions of Mr Dealehr on behalf of the plaintiff could be summarised as follows.

103 In this case, the 2007 proceeding was not concerned solely with the ground of incapacity. The notice terminating payments identified two grounds relating to the existence of another job and fraud. The issue of capacity was merely an adjunct to that.

104 The original claim form in this case identified only an injury to the face. That affects the scope of the dispute between the parties. The defendant is relying upon special defences and bears the burden of proof. The onus which it bears is a heavy one. It has not discharged that burden.

105 Benefits were originally terminated on the grounds of a return to work and fraud. The second claim was rejected, based upon the Terms of Settlement, Court Orders and the claim form of 16 December 2013. Thus, the second claim, whilst arising out of the same accident as the earlier claim, is for entirely different relief and benefits under the Act. Further, since the Terms of Settlement, there has been a material change in the plaintiff’s circumstances by reason of his undergoing operations, intensive treatment therapy, changes to his medication and the like.

106 Reliance is placed upon the report of Mr Donald Marshall of 22 August 2007, which report was obtained by the then solicitors for the defendant and such report being dated 22 August 2007. In that report, Mr Marshall stated there was nothing in the physical examination to suggest that the plaintiff did not have a capacity for his pre-injury employment. Clearly that situation has changed. Both Dr Shapero and Dr Janovic indicated that there has been a very significant alteration in the condition of the plaintiff. Further, in the report of Mr Baxter to the defendant’s present solicitors, such report being dated 23 March 2016, he stated that he did not believe that the plaintiff had a current capacity for his pre-injury employment. He expressed the view that the plaintiff’s mid-facial pain had a genuine organic basis and was directly related to the 2001 injury. This is to be contrasted with what was said by Mr Marshall back in 2007. Clearly there has been a significant change of circumstances. The situation is similar to that in Fuat.

107 Further, reference is made to the report of Dr Janovic of 30 June 2016 to the effect that the plaintiff has a constellation of health issues specifically causally related to the work injury, these including chronic pain, both facial and headache, with a significant reactive depression. Apart from other observations, Dr Janovic felt that the plaintiff’s current work capacity would only extend to very casual/minimal employment and that this would be his maximum capability. Dr Janovic expressed the view that the plaintiff was a very genuine individual who has not been able to sustain any meaningful form of employment activity.

108 Since the accident, the plaintiff has lived in constant pain. He is a man of integrity whose evidence should be accepted. The whole essence of the termination of payments was that he was a fraudulent person and that should be rejected. He was not challenged in relation to the proposition that he had told his employer about the work that he was doing and that it was unpaid work. All these matters create problems when the Terms of Settlement are considered.

109 In relation to the Terms of Settlement, there is nothing to suggest that the parties were ad idem in relation to what actually constituted the foundation of the plaintiff’s medical condition. Whilst medical reports might expand upon aspects of the claim, it is the claim form itself which is a relevant aspect. There is no evidence that the parties were in fact ad idem in relation to the manner of the settlement and that the matter was settled purely on the ground of capacity. There is nothing to say that there was even a reference to the report of Mr Mangos. It is unclear what medical material counsel had when the Orders were obtained and the Terms of Settlement executed.

110 Further, there has been reference to other medical reports that were in existence in 2007 and which have not been relied upon by the defendant in the present case. It would be speculating to say that all these other conditions were taken into account.

111 Further, when the plaintiff returned to employment after the initial injury, he was given the light duties “jockey” job, which was specifically designed to meet his medical condition. It was not a permanent job. From 2003 to 2006 he continued to suffer facial pain and depression. In 2008, after the settlement, he had a lignocaine fusion at the Alfred Hospital. In March 2010 he underwent testing for sleep apnoea. In March 2011 he had a worsening discharge from the nose and an increase in medication. In October 2012 he underwent a right revision antrostomy to reduce pain and discomfort associated with his nose injury. On 20 November 2012 he had further surgery to repair an infected tooth. He also had an increase in medication. There was a further change to medication in 2013. In February of this year, he underwent further surgery for his nasal and facial condition. Thus, there has been considerable treatment since the Court Orders and Terms of Settlement.

112 Turning to the special defences, in the present case there is no issue estoppel, res judicata or accord and satisfaction. As stated, the defendant bears the burden of proof and, in these particular circumstances, it is a heavy one. There is a significant difference between the first and second claims. The first was a claim which was accepted and subsequently benefits were terminated. The current proceeding is based on a situation where there was no acceptance, but a rejection. That rejection was based on the Court Orders and Terms of Settlement, not upon issues of capacity or fraud. The Terms of Settlement of 2007 were based upon fraud. The second claim is entirely different in terms of the relief which is sought.

113 In relation to the Terms of Settlement, it is submitted that there has been a material change in the plaintiff’s circumstances. There has been substantial medical treatment. The change of circumstances takes the present claim outside the ambit of the earlier settlements. Further, the weekly payments made to the plaintiff by way of settlement of the earlier claim were for a period not sought by the plaintiff in the current proceeding.

114 Next, the plaintiff relies upon the decisions of AMP Workers Comp Services Ltd v Chalkley [1998] VSC 29 and Perkins v GIO Workers’ Compensation (Vic) Ltd [1995] VCC 37. Accord and satisfaction should not apply to workers compensation matters, such as the current proceeding. The legislature did not intend that it is possible to contract out of the Accident Compensation Act 1985. The legislation is intended to be beneficial. Reliance is also placed upon the decision in Derks v R & J Fibreglass Pty Ltd [2009] VSC 601 and upon Fuat.

115 Reference is also made to decisions of the Magistrates’ Court, such as Simurina v Southcorp Ltd, MCV 16 October 2015; Zabic v PPG Industries Pty Ltd, MCV 20 May 2016; Filipovski v Tandem Australia Pty Ltd, MCV 9 February 2016; Turner v Clinical Laboratories, MCV 9 May 2016 and Smith v Woolworths Ltd, MCV 2 May 2016.

116 Each case has to be decided on its particular facts. However, each of these cases are highly persuasive in relation to the present case.

117 The plaintiff also relies upon the decision in ACCC v Australian Safeway Stores (No 3) [2001] FCA 1861 in which Goldberg J stated:

“In a multi-element cause of action, a dismissal of the proceeding without reasons will not demonstrate which elements were not made out.”

That is relevant to the present proceedings.

118 The current proceeding includes different considerations from those which were previously part of the matters under consideration before the Court and which were resolved. The compensation sought is for matters not previously the subject of orders. This is not a re-litigating of earlier proceedings.

Ruling

119 I shall deal firstly with the matter of weekly payments of compensation and then that of medical and like expenses.

(a) The claim for weekly payments of compensation

120 In my opinion, this claim must fail. I have come to that conclusion for the following reasons, which are not listed in order of importance or significance.

(i) The claim for weekly payments necessarily is centred upon capacity for work. In this particular case, there is an additional argument, relating to fraud, and to which I shall return. For the moment, I shall deal only with the question of capacity for work.

I was referred more than once to my own decision in Fuat and to some of the decisions referred to therein. One of the essential ingredients in Fuat was that the consent dismissal of the earlier proceedings had involved the key question of the plaintiff’s work capacity. I referred to various authorities, such as Chalkley. I observed that the termination of weekly payments on the basis of capacity seemed to involve a state of affairs that was not necessarily permanent. I observed at page 20 of the decision that the wording of the Act does not preclude a revisiting of the situation if there is a deterioration in relation to a worker’s capacity for suitable employment. I referred to the decision in Perkins, where his Honour Judge Higgins stated that a worker’s health is not a static condition. I referred to “a change of circumstances and a revived entitlement to weekly payments”. Indeed, I repeated the references to a situation where circumstances have changed. I refer to my decision in Fuat not because I consider, in any way, that my own previous ruling is the ultimate word on the matter. Rather, I was referred by both counsel to it and to some of the decisions which are contained in it. Happily, and perhaps diplomatically, neither counsel suggested that it was incorrect.

An example of the above is that there is a reference in Fuat to what was said in the Judgment of McDonald J in Chalkley. The particular extract refers in turn to the decision in McDonald v Director-General Social Security [1984] FCR 345 at 361. In that case, Woodward J, when discussing permanent incapacity, referred to such matters as unexpected improvement in a person’s condition, advances in medical science, the achievement of fresh skills or even changes in the labour market – all of which, his Honour stated, could bring to an end an incapacity which had been thought to be permanent.

None of those circumstances has been proven to exist in the present case. As stated, the present case involves a claim for weekly payments and this is in turn based upon the question of capacity. In the present case, this whole issue of capacity, res judicata and issue estoppel was not argued as a preliminary point, as was the situation in Fuat. I have had the benefit of hearing and receiving all the evidence which the parties wished to place before me in a fully contested matter. None of that evidence persuades me that there has been any change in the plaintiff’s capacity for employment, whether it be self-employment or otherwise, since the County Court Orders of 27 September 2007 and the Terms of Settlement signed on the same day.

Indeed, the evidence seems to me overwhelmingly to lead to the conclusion that, as at 27 September 2007, the plaintiff had a capacity for employment and that he has continued to exercise that capacity thereafter. It may be that his actual earnings have fluctuated. It would seem apparent that, at times, he has demonstrated the ability to earn a considerable amount of money in a comparatively short time. For example, he admitted that, when performing his handyman and painting duties, in 2015 he received $6,000-$7,000 for one job which lasted three weeks, although subsequently altering that to a receipt of $3,000 or $4,000 – see T115.

On 23 March, he received $1,424 (for a job of his own), the amount previously referred to being for a job for a friend of his son. Indeed, there appears to have been a different job performed for which something in the order of $7,500 was received, this also occurring in 2015. On 26 March 2015, there seems to have been another job which was productive of $2,893 and another receipt on 14 April for $2,727.

Some of this was a little confusing, and there may have been progress payments in respect of a particular job. However, what is clear is that the plaintiff was working and, probably between 23 March 2015 and 14 April, he earned approximately $7,500. Whilst the plaintiff’s financial affairs appear to be somewhat complicated, what is clear, and not denied by him, is that he has been working comparatively regularly as a handyman and painter. There may have been some interruptions for medical treatment, but this situation has persisted for years.

The other thing to be borne in mind is that the medical opinions from the plaintiff’s treating doctor, Dr Shapero, have remained comparatively constant throughout. According to Dr Shapero, the plaintiff was fit for light work in February 2002. In his report of 6 June 2010, he stated that the plaintiff had a work capacity, whilst placing restrictions upon this. In his oral evidence, he stated that, in terms of work capacity, the plaintiff, save for periods of exacerbations and surgical procedures, has always had a capacity to work. It was a view that he repeated, stating that:

“…throughout the last 15 years, other than when Mr Lloyd had exacerbation of symptoms or when he was undergoing other procedures, he’s always had a work capacity, and I think continues to have that capacity” – see T124.

When reviewing the plaintiff on 24 September 2007, immediately before the County Court action, Mr Mangos expressed the view that the plaintiff was totally and permanently incapacitated for work. Even leaving to one side any argument as to whether the plaintiff was actually performing some work at that time, if the view of Mr Mangos is accepted, it would seem that the plaintiff’s capacity for work has actually improved since the Orders and Terms of Settlement of 27 September 2007.

Of course, if the opinion of Mr Marshall, given at about the same time, is accepted, the plaintiff then had the capacity to perform suitable employment without any physical restrictions. It is difficult to accept that these competing views were not well-known to the experienced counsel who represented each side on 27 September 2007. The bottom line is that the plaintiff has subsequently demonstrated a capacity for employment and there is no argument but that he has subsequently engaged in self-employment. Save for periods of exacerbation or surgical treatment, that capacity is not disputed.

In short, there is no evidence, medical or lay, which persuades me that the plaintiff’s present capacity for employment, or his capacity since 30 August 2013 (being the commencing date claimed), is any different from that which it was on 27 September 2007. There is simply no evidence which persuades me that there has been the type of change in circumstances mentioned in Fuat or in the cases referred to therein.

As was said by Murphy J in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 605:

“These notions of res judicata and issue estoppel are founded on the necessity, if there is to be an orderly administration of justice, of avoiding re-agitation of issues, and of preventing the raising of issues which could have been and should have been decided in earlier litigation.”

Clearly, and particularly in the context of legislation such as the Act, there may well be situations which arise and where the desirability of bringing an end to litigation is overcome by the circumstances of the particular case. This is not such an instance.

(ii) Further, there remains the fact that the plaintiff’s weekly payments of compensation were terminated by a notice, which notice, inter alia, alleged fraud. The validity of the notice of termination was challenged subsequently and that challenge was dismissed by an Order of this Court.

There is at least an argument that, in such circumstances, the challenge to the notice of termination having been dismissed, that notice remains valid. If it does so remain valid, the situation is that one of the grounds for termination of payments was fraud, this apparently being related to the assertion in the same letter that the plaintiff had returned to work. Indeed, the two propositions would appear to be put to some extent cumulatively, but also alternatively.

The letter notifying the plaintiff of the termination of benefits asserts that, pursuant to s114(2)(C)(i), he had returned to work and that, pursuant to s114(3), it is considered that payments had been obtained fraudulently.

Given that this Court dismissed the challenge to the termination of benefits, arguably the letter or notice of termination stands. The evidence advanced would not persuade me that the termination of weekly benefits on the basis of a return to some form of work was incorrect.

The letter or notice terminating the plaintiff’s weekly payments of compensation is dated 21 May 2002. Whilst at times there was some confusion, the plaintiff effectively admitted that, whilst working for the defendant on light duties and at about the time that he was assessed in relation to his capacity, he was also doing some work for his wife. It may be that he was receiving no payment for this, but the fact remains that he seems to have been performing work for the vending machine business operated by his wife at about the relevant time – see T65 and 78. The fact of the matter remains that, inter alia, the plaintiff’s weekly benefits were terminated on the grounds that he had returned to employment and that he had obtained payments fraudulently.

Arguably, by reason of the dismissal of the challenge to such termination, that letter or notice continues to be effective. The Amended Statement of Claim before me does not seek to challenge it and, indeed, does not refer to it. Further, there is no evidence before me which would persuade me to overturn it.

In this regard, I would refer to the Judgment of the Court of Appeal in Ozbilgi v Bradnams Windows and Doors Pty Ltd [2011] VSCA 210. The circumstances in that case have some similarity to those in the present matter. In dealing with arguments that had been advanced by the appellant, Warren CJ stated as follows:

“By dismissing the proceeding, the County Court has determined this matter adversely to the appellant. The appellant is now estopped from asserting that his entitlement to weekly payments had not ceased in accordance with the notice.”

Applying that to the present case, the plaintiff would now be estopped from asserting that his entitlement to weekly payments had not ceased in accordance with the notice. That notice alleged that he had returned to work as a self-employed person or in employment and that he had obtained payments fraudulently. If the dismissal of his action on 27 September 2007 is taken into account, arguably this means that he is now estopped from denying the cessation of his weekly payments on the basis of a return to work or fraud.

(iii) There is ample authority for the proposition that there should be an end to litigation. I have already referred to what was said by Murphy J in Anshun. In “Civil Procedure Victoria” by Bailey and Arthur, many cases are set out at [1 23.01.125]. The overall effect of many decisions is neatly summed up by the authors in the following sentence:

“The considerations that underlie the doctrine of res judicata, namely, the public interest in finality of litigation and the concern of the law to prevent injustice to a litigant in being required to defend the same claim twice, are also reflected in the related principle of issue estoppel.”

Clearly, particularly in the context of the Act, there may be circumstances, as has been referred to above, which enable a fresh action to be brought, despite an earlier order or settlement. However, the desirability of there being finality to litigation remains an important factor to be considered.

(iv) It is to be remembered that, in relation to the weekly payments, there are two limbs to what occurred on 27 September 2007. There are the Court Orders and there are the Terms of Settlement. At a time when he had received no weekly payments for in excess of five years, the plaintiff accepted 52 weeks of compensation, this being part of a settlement which related to all matters and claims he may have had against the defendant pursuant to the Act.

Of course, there are also the dismissal orders made by his Honour Judge GD Lewis. In other words, what was occurring seems to have been clear and lacking any ambiguity. In the absence of any change of circumstances as referred to above, and the existence of which has not been established, the situation is comparatively simple. The plaintiff was accepting 52 weeks of compensation payments and this would bring all claims to such payments to an end.

(v) Mr Dealehr referred me to a number of decisions of the Magistrates’ Court and, in particular, that in Simurina v Southcorp Ltd, delivered 16 October 2015 by Magistrate Ginnane. It was referred to as a case upon which the plaintiff would be relying – see T159. In that case, the magistrate specifically found that the cause of action before the court was not the same as what had been previously resolved. Previous proceedings before the Magistrates’ Court had specifically reserved the right for the plaintiff to claim compensation pursuant to s98C and 98E of the Act. The plaintiff had received no such compensation. In addition, the magistrate found that, in the previous claim, weekly payments of compensation were not sought, as they have been in the current proceeding. Each case must be determined on its merits and I am not satisfied that there is anything in the decisions of the cases before the Magistrates’ Court which would persuade me to alter the conclusion at which I have arrived.

(b) The claim for reasonable medical and like expenses

121 I am of the view that this claim must also fail. I am of that opinion for the following reasons, which are not set out in order of importance or significance.

(i) Despite my raising the issue on three occasions, no details of medical and like expenses were provided. I enquired as to what had happened in relation to them and as to their quantum – see T92. I was told by counsel for the plaintiff that the quantum was “being prepared”. I was told again that a list of outstanding medical and like expenses was being prepared and that receipts, which would be made available, were being obtained – see T96.

After counsel for the plaintiff had closed his case and, giving the plaintiff every opportunity to overcome any oversight, I enquired again about the situation in relation to reasonable medical and like expenses – see T133 and 134. I was told that such a claim was still being maintained, but what was sought was a declaration pursuant to s99AD(5) of the Act.

The bottom line is that no details of medical and like expenses have been provided. Thus, there is no specific information before me as to what amounts have been charged for what particular treatment. It is to be remembered that whether some of the injuries claimed are consequences of the original incident of injury is a contentious matter. For example, surgery relating to a dental problem and anything relating to sleep apnoea are, to put it mildly, contentious consequences of the original injury.

In the absence of any material or evidence being supplied (and I was assured that it would be), I am not prepared to make an Order or declaration that the plaintiff pay reasonable medical and like expenses.

(ii) Mr Dealehr also referred to s99AD(5). Certainly an injured worker is entitled to ongoing compensation pursuant to Division 2B (which relates to medical and like services) in certain circumstances, such as the requirement for surgery. However, in the present case and despite assurances that details of medical and like expenses would be provided, this has not occurred and I am not prepared to make some form of general declaration in the absence of any supporting evidence.

(iii) There remains the fact that the plaintiff has not once, but twice, consented to a dismissal of his claim for reasonable medical and like expenses. Orders have been made dismissing this aspect of the claim. Such expenses were claimed in the County Court action finalised on 27 September 2007. Such claim was dismissed. The Terms of Settlement executed on the same day were on the basis of reasonable expenses to that date, with a limitation on chemist expenses. The complaint before the Magistrates’ Court specifically was for reasonable medical and like expenses. That was dismissed by consent on or about 30 April 2010. There was no suggestion that any further amount was paid as consideration for that dismissal.

I would refer to what has been set out above in relation to the importance of achieving finality in litigation. That is perhaps underlined in relation to the reasonable medical and like expenses, because the claim was, for all intents and purposes, twice finalised.

(iv) In the absence of any details of medical and like expenses being tendered, it is difficult to say that there has been any change in circumstances of the type referred to above in the discussion concerning weekly payments. There is no acceptable foundation for such an assertion in a situation where not even the details of the expenses have been supplied.

(v) There is simply no evidence in relation to the nature or quantum of reasonable medical and like expenses. I am not prepared to make a general, sweeping declaration in a situation where the plaintiff has apparently received treatment for conditions where the link to employment is, to put it quite mildly, contentious.

That is particularly so where 99AD of the Act provides that compensation pursuant to Division 2B (the entitlement to payment of medical and like expenses) ceases 52 weeks after the entitlement to weekly payments ceases. That is so unless s99AD(5) applies. If a worker can establish that there has been a return to work, but that certain requirements, such as the need for surgery, exist, the payment of reasonable medical and like expenses may continue. Whether such entitlement would persist after the dismissals which have occurred in the current case is another matter.

However, when there is not even any evidence before the court as to the details of such expenses, so as to bring the matter within the exception contained in s99AD(5), certainly I am not prepared to make some form of general declaration. That is leaving to one side the two dismissals that have already occurred.

Conclusion

122 In summary, the plaintiff has failed to satisfy me that there is a further entitlement to weekly payments or to reasonable medical and like expenses. That is so, wherever the burden of proof may lie. The claim is dismissed.

123 I shall hear the parties as to any ancillary orders that are required.

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Citations

Lloyd v PFD Food Services (Melb) Pty Ltd [2016] VCC 1863

Cases Citing This Decision

0

Cases Cited

7

Statutory Material Cited

0

Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45

Fuat v OneSteel Ltd [2010] VCC 584

AMP Workers Compensation Services Ltd v Chalkley [1998] VSC 29

[2016] VCC 1863

7 December 2016