Manpower Pty Ltd v Harris

Case [2011] NSWWCCPD 10
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION: Manpower Pty Ltd v Harris [2011] NSWWCCPD 10
APPELLANT: Manpower Pty Ltd
RESPONDENT: Jeffrey Richard Harris
INSURER: GIO General Limited
FILE NUMBER: A1-4718/10
ARBITRATOR: Mr B Batchelor

DATE OF ARBITRATOR’S DECISION:

DATE OF APPEAL HEARING:

6 October 2010

18 February 2011
DATE OF APPEAL DECISION: 25 February 2011
SUBJECT MATTER OF DECISION: Doctrine of res judicata; effect of prior consent orders for continuing weekly compensation; relevance of words “without admission of liability” in consent orders; application to call oral evidence from expert witness; refusal to admit unserved clinical notes; refusal of adjournment; injury; substantial contributing factor; partial incapacity; assessment of weekly compensation under s 40 Workers Compensation Act 1987
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING: Oral
REPRESENTATION: Appellant:

Mr D Saul, instructed by Leigh Virtue & Associates
Respondent: Mr B McManamey, instructed by Taylor & Scott Lawyers

ORDERS MADE ON APPEAL:

For the reasons given in this decision, the Arbitrator’s determination of 6 October 2010 is confirmed.

The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200 plus GST.

BACKGROUND

  1. The respondent worker, Mr Harris, is an electrician. The appellant employer, Manpower Pty Ltd (Manpower), is a labour hire company. Manpower supplied workers to United Rail Pty Ltd (United Rail), a company that builds railway carriages at Broadmeadow in NSW. In August 2005, Manpower arranged for Mr Harris to work at United Rail’s premises. His work involved wiring modifications to trains.

  2. On 19 May 2008, Mr Harris was working under a train at United Rail’s premises, attempting to undo bolts. The force required to undo the bolts varied from medium to extreme. One of the bolts was difficult to undo and Mr Harris braced his right leg on the train’s underfloor for leverage and felt a stabbing pain in his right groin. He had previously suffered a hernia (that required surgery) while working for a different employer in 1972.

  3. In a claim form completed on 29 May 2008, Mr Harris said he first stopped work because of his injury at 12.30 pm on Monday 26 May 2008 and that he reported the injury on Tuesday 27 May 2008, finally ceasing work on the morning of 28 May 2008. He described his “injury/condition” as “PAIN IN R.H.S GROIN”. He has not returned to work since 28 May 2008.

  4. Mr Harris commenced proceedings for compensation in the Commission in 2009 in matter No 1945 of 2009 (the first proceedings). The Commission referred the following issues to an Approved Medical Specialist (AMS), Dr Khan, for assessment:

    (a)     the relationship of employment to [the] injury (agreed to be inguinal neuralgia);

    (b)     Mr Harris’s capacity for work, and

    (c)     Mr Harris’s prognosis.

  5. Dr Khan examined Mr Harris on 28 May 2009 and issued a non-binding Medical Assessment Certificate (MAC) on 11 June 2009, in which he concluded that Mr Harris’s employment, including the work-related injury on 19 May 2008, appeared…

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Manpower Pty Ltd v Harris [2011] NSWWCCPD 10
Case
[2011] NSWWCCPD 10
Decision Date

CaseChat Overview and Summary

The case of Manpower Pty Ltd v Harris involved the interpretation of prior consent orders concerning continuing weekly compensation and the applicability of the doctrine of res judicata. The dispute arose from an application by the employer, Manpower Pty Ltd, to review an arbitrator's decision regarding the weekly compensation payable to the worker, Mr. Harris. The matter was heard in the Supreme Court of New South Wales, Court of Appeal. The primary legal issues concerned whether the prior consent orders, which included the phrase "without admission of liability," prevented the employer from challenging the assessment of the worker's incapacity and whether the employer was estopped from contesting the facts necessary to determine the weekly compensation amount.

The court examined the nature of the consent orders and their effect on the res judicata doctrine. It noted that while consent orders could create an estoppel as between the parties, this only applied to matters that were necessarily decided. The phrase "without admission of liability" in the consent orders indicated that the issue of liability was not determined, and therefore, the employer was not estopped from challenging the assessment of the worker's incapacity. The court found that the consent orders did not bar the employer from presenting evidence to argue that the worker's incapacity was not as substantial as previously determined. Additionally, the refusal to admit unserved clinical notes and the refusal of an adjournment were also considered, leading to the conclusion that the employer's right to a fair hearing was not infringed.

The outcome of the appeal was that the Arbitrator's determination of 6 October 2010 was confirmed. The employer was required to pay the worker's costs of the appeal, assessed at $2,200 plus GST. This decision underscored the importance of understanding the precise scope of consent orders and their implications for future litigation under the doctrine of res judicata.

Orders

Orders of the court

For the reasons given in this decision, the Arbitrator’s determination of 6 October 2010 is confirmed.

The appellant employer is to pay the respondent worker’s costs of the appeal, assessed at $2,200 plus GST.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Dealing with res judicata, McColl JA (Giles and Campbell JJA agreeing) said (at [73]) in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (Habib):“The doctrine of res judicata properly so-called (the first principle referred to in Dow Jones) applies where a plaintiff establishes his cause of action so that, upon judgment, the cause of action and any matters which were necessarily established as its legal foundation or as the justification for its conclusion, or were legally indispensable to the conclusion merge in the judgment, and no longer have an independent existence and cannot be re-litigated in subsequent proceedings between the parties of their privies: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 (at 531–532) per Dixon J; Anshun (at 597) per Gibbs CJ, Mason and Aickin JJ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502 (at 508) per Deane, Toohey and Gaudron JJ; James Hardie and Co v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53 (at [40]) per Gaudron and Gummow JJ.” (emphasis added) In respect of consent orders, her Honour said (at [186]):“Orders made by consent may create an estoppel as between parties, (and, no doubt may be considered for the purpose of determining whether subsequent proceedings would lead to conflicting judgments), however they do so ‘only as to those matters which are necessarily decided’, to ascertain which ‘the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to’: Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 (at 75), per Street CJ and Roper CJ in Eq; see generally the helpful discussion of the issue by Barrett J in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2008] NSWSC 185; (2008) 72 NSWLR 160 (at [63] – [65]); Abigroup Contractors Pty Ltd (at [146]).” (emphasis added) McColl JA again considered the effect of consent judgments in Nau v Kemp & Associates [2010] NSWCA 164 (Nau) and said (at [64]):“Consent judgments attract the operation of the doctrine of res judicata, however ‘[t]he fact that a judgment is entered by consent may on occasion make it hard to say what was necessarily decided by the judgment, especially where it is the defendant who wishes to bring action at a later date’: Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502 (at 508) per Deane, Toohey and Gaudron JJ; see also (at 505) per Brennan J; (at 512) per Dawson J; see also Spencer Bower and Handley, Res Judicata, 4th ed (2009) LexisNexis at ([2.16]ff).” Her Honour added (at [65] to [68]):“65 The observation in Chamberlain referred to in the previous paragraph gave, as an illustration, Isaacs v Ocean Accident & Guarantee Corporation Ltd (1958) 58 SR (NSW) 69. In that case, Street CJ and Roper CJ in Eq held (at 75) that orders made by consent create an estoppel as between parties ‘only as to those matters which are necessarily decided’, to ascertain which:‘...the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to.’66 In Isaacs, a consent judgment for Winslett was entered against Isaacs in an action in which Winslett claimed damages for personal injuries sustained through allegedly negligent driving by Isaacs’ servant or agent. The consent judgment was entered pursuant to terms of settlement which required that ‘without admission of liability verdict to be entered in favour of the plaintiff’. The trial judge entered a verdict for Winslett for £4500 and directed that judgment be entered. Judgment was entered in accordance with the Rules of Court – it contained no reference to the terms of settlement. Isaacs subsequently sought to claim damages from Winslett for the latter’s allegedly negligent driving in the same accident.67 Street CJ and Roper CJ in Eq (Owen J dissenting) held (at 75–76) that the fact the parties had by express agreement removed from the court’s consideration any question of Isaacs’ liability to Winslett, meant that no estoppel adverse to Isaacs arose on the issue of liability. Accordingly as the parties’ intention that ‘the judgment, when entered, was not to be taken as establishing that [Isaacs] was in fact liable to [Winslett]’ appeared in the court record, their Honours found it could not conclude the issue of liability had been determined adversely to Isaacs: Isaacs (at 76). This conclusion was described as correct in principle in Mitsubishi Motors Australia Ltd v Harbord (1997) 69 SASR 75 (at 90–91) per Doyle CJ (with whom Matheson and Olsson JJ agreed). The learned Chief Justice also observed that Isaacs was referred to in Chamberlain in the context of res judicata, in a manner which, in his view, did not limit the High Court’s apparent approval of the decision to such estoppels.”

Ratio Decidendi

Legal Principle Established

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