Miller v Secretary, Department of Communities and Justice

The appellants, the personal representatives of the deceased, appealed to the Court of Appeal of New South Wales against a decision of the primary judge who had dismissed their claim for workers' compensation. The dispute concerned whether the deceased suffered an injury in the course of her employment, specifically whether an asthma attack leading to cardiac arrest and anoxia, which ultimately caused her death, constituted a compensable injury. The appellants had initially pleaded the injury as an "asthma attack" but later sought to bring a second claim alleging the injury was "cardiac arrest and anoxia."

The central legal issue before the Court of Appeal was whether the doctrine of *Anshun* estoppel precluded the appellants from pursuing their second claim. This involved determining the applicability of *Anshun* estoppel to claims brought under the *Workers Compensation Act 1987* (NSW) and the *Workplace Injury Management and Workers Compensation Act 1998* (NSW). The court had to consider whether the second claim, which alleged a different characterisation of the injury, was so closely connected with the first claim that it should have been brought in the earlier proceedings.

The Court of Appeal reasoned that the appellants' second claim was indeed so closely connected with the first claim that it ought to have been brought in the earlier proceedings. The court applied the principles of *Anshun* estoppel, finding that the factual basis for both claims was the same – the events that occurred during the deceased's employment which led to her death. The distinction between an "asthma attack" and "cardiac arrest and anoxia" was considered to be a matter of characterisation of the same injury, rather than a distinct cause of action. Therefore, the court held that the appellants were precluded from bringing the second claim.

The appeal was dismissed, and the appellants were ordered to pay the costs of the respondent.