Ozbilgi v Bradnams Windows & Doors Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0074

AHMET OZBILGI
	Appellant
v
BRADNAMS WINDOWS & DOORS PTY LTD	Respondent

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JUDGES:	WARREN CJ, BUCHANAN JA and SIFRIS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 July 2011
DATE OF JUDGMENT:	26 July 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 210  Third Revision: 9 September 2011

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ACCIDENT COMPENSATION – Claim for weekly payments – Purported termination of payments for non-compliance with return to work provisions of the Accident Compensation Act 1985 – First proceeding dismissed by consent – Whether second claim for weekly payments precluded by issue estoppel or res judicata – Whether employment a significant contributing factor to a deterioration of an injury solely because the original injury occurred in the course of employment – Appeal dismissed — Accident Compensation Act 1985, ss 82(2C)(c), 93CB(3), 93CB(4) – Interpretation of Legislation Act 1984, s 14(2)(d).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr CB Thomson	Simon Legal
For the Respondent	Mr MF Wheelahan SC and Mr SA O’Meara	Minter Ellison

WARREN CJ:

Introduction

1. The appellant, Mr Ozbilgi, is a former employee of the respondent, Bradnams Windows and Doors Pty Ltd.  In 2008 the appellant commenced a proceeding against the respondent in the County Court.  The appellant was seeking weekly payments under the Accident Compensation Act 1985 (‘the Act’) in respect of injuries sustained by the appellant in the course of his employment with the respondent.  The learned trial judge dismissed the appellant’s proceeding, holding that his claim was barred by the doctrine of issue estoppel or res judicata.  The appellant now appeals against that ruling.

1. For reasons that will follow, I would dismiss the appeal.

Background

1. The facts giving rise to this appeal are not in dispute. The appellant suffered injuries in the course of his employment with the respondent in two separate incidents in 2002 and 2003. On 2 May 2003 the appellant submitted a claim for compensation under s 103 of the Act. The claim related to the 2003 incident. The claim was accepted and the plaintiff started to receive weekly payments under the Act. On 14 July 2003 the appellant submitted a second claim for compensation in respect of both the 2002 and the 2003 incidents. The second claim alleged a more extensive range of injuries, including psychiatric injuries. The authorised agent of the Victorian WorkCover Authority, CGU Workers Compensation (Vic) Ltd (‘CGU’), initially rejected the second claim. However, at a conciliation held on 16 October 2003 CGU accepted liability for the physical injuries and liability for the medical expenses in respect of the psychiatric injury.[1]

   [1]Ozbilgi v Bradnams Windows and Doors Pty Ltd (Unreported, County Court of Victoria, Judge Wischusen, 27 May 2010), [8] (‘Ruling’).

1. On 28 October 2003 CGU issued a notice advising the appellant of CGU’s decision to terminate weekly payments from 31 October 2003.  The notice stated that CGU had determined that the appellant is no longer entitled to compensation payment because he had failed to participate in…