Robinson v Woolworths
[2015] VMC 33
•20 OCTOBER 2015
| IN THE MAGISTRATES COURT OF VICTORIA |
AT LATROBE VALLEY
WORKCOVER DIVISION
Case No.F10254031
| MICHELLE ROBINSON | Plaintiff |
| v | |
| WOOLWORTHS LIMITED | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | LATROBE VALLEY |
DATE OF HEARING: | 7 OCTOBER 2015 |
DATE OF DECISION: | 20 OCTOBER 2015 |
CASE MAY BE CITED AS: | ROBINSON v WOOLWORTHS |
MEDIUM NEUTRAL CITATION: [2015] VMC033
REASONS FOR RULING
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Catchwords: Rejection of Claim: dismissal of previous proceeding by court on 2 December 2013 relating to back injuries sustained on 19 August 1999 – further claim form dated 19 June 2014 lodged and rejected by defendant relating to alleged back injuries sustained between 30 November 2010 and 14 November 2011 – Anshun Estoppel relied on by defendant – Application to dismiss proceeding. Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Horner | Maurice Blackburn |
| For the Defendant | Mr Richards | Sparke Helmore |
HIS HONOUR:
1 Ms Robinson issued these proceedings on 21 January 2015 in response to a decision made by the defendant on 31 July 2014 to reject her claim for weekly payments and medical treatment expenses dated 19 June 2014 following an alleged injury sustained by her to her back together with anxiety and depression said to have occurred in the course of her employment as a shop assistant between 30 November 2010 and 14 November 2011.
2 In a Further Amended Notice of Defence dated 21 September 2015, the defendant alleges that she did not sustain an injury within the meaning of the Act, that her employment was not a material contributing factor to any alleged injury nor was it a significant contributing factor to the causation, aggravation, acceleration, exacerbation or deterioration of a disease, that she failed to give notice of injury within 30 days after she became aware of it, that her claim was made after she ceased to be employed by the defendant and that she could reasonably have made the claim whilst she was still employed by it.
3 Importantly, the defendant pleaded that Ms Robinson’s entitlement to weekly payments of compensation and medical and like expenses was resolved by way of terms of settlement dated 26 November 2013 relevant to an earlier Magistrates Court proceeding. The defendant asserts that she is estopped from bringing the present proceeding based on the principles set out in the High Court decision in Port of Melbourne Authority v Anshun Pty Ltd[1]. The defendant pleads that the issues to be determined in the current proceeding could have been included in the previous Magistrates Court proceeding and therefore the proceeding is an abuse of process.
[1] (1981) 147 CLR 589.
4 The parties sought a preliminary ruling on this issue and in support of their submissions, the court was referred to a decision of Magistrate Wright in Stankovic v Steelfield Victoria Pty Ltd dated 21 March 2013 and the numerous authorities referred to therein.
5 In order to determine the defendant’s application to dismiss the proceeding, it is necessary to examine the nature and particulars of the earlier proceeding and the issues that were determined by virtue of that proceeding being dismissed by the court on 2 December 2013.
6 It is not in dispute that Ms Robinson was employed by the defendant from 30 July 1990 until ceasing work on 13 December 2011. During the course of her employment she sustained numerous back injuries. The earlier proceeding (D10776036) was issued on 19 March 2013 claiming weekly payments and medical expenses arising from an injury alleged to have occurred on 19 August 1999 and causing incapacity for work from 14 December 2011. The defendant rejected her request for reinstatement of payments and medical treatment expenses by way of written notice dated 9 February 2012. In its initial Notice of Defence dated 3 May 2013, whilst admitting Ms Robinson sustained an injury to her back on 19 August 1999, it denied she had an entitlement to compensation and also pleaded that she had never lodged a claim for impairment benefits with respect to ‘throughout the course of the plaintiff’s employment with the defendant’. The defendant also asserted that she did not suffer any injuries arising out of or in the course of her employment other than those for which the defendant had previously accepted liability. As a consequence of that pleading, Ms Robinson filed an Amended Statement of Claim dated 16 July 2013, withdrawing reliance on ‘throughout the course of employment’ and relying only on the injury sustained on 19 August 1999. The defendant then filed Further Amended Notices of Defences withdrawing its reliance on the assertion that Ms Robinson had never lodged a claim for impairment benefits with respect to ‘throughout the course of the plaintiff’s employment with the defendant’. Subsequently, on 18 October 2013, the defendant issued a notice informing Ms Robinson of its decision to terminate her entitlement to medical and like expenses from 18 November 2013. This decision was included in the previous proceeding after the filing of a Further Amended Statement of Claim dated 8 November 2013.
7 The earlier proceeding was resolved by way of terms of settlement dated 26 November 2013 with the defendant, with a denial of liability, promising to pay Ms Robinson weekly payments of compensation and medical treatment expenses from 18 December 2011 (5 days after she finally ceased employment on 13 December 2011) until 18 June 2013 in full and final settlement of any entitlement to compensation. The terms of settlement also provided that the plaintiff would resign from her employment and that orders were be obtained from the court dismissing the proceedings. On 2 December 2013, the court made an order that the proceeding be dismissed.
8 During his submissions, counsel for the defendant relied on an affidavit sworn by Ms Robinson on 23 September 2012 in support of her Application for a Certificate of Serious Injury pursuant to s 135A of the Act. In that affidavit she provided a history of her work duties and injuries sustained in the course of her employment. She provided a history of sustaining an injury to her lower back on 25 May 1994 and further recurrences of lower back pain in June 1995, 15 November 1996, 19 August 1999, 3 July 2001 and June 1992. She stated that she had been transferred to different departments because of her injury including office duties but that in mid-2002 until 2005 she was shifted from her office job and put back onto the shop floor which required further lifting and bending activities. She stated that she was subsequently transferred back to office duties on a full-time basis until 2010 and was then transferred to a new Woolworths store in Maffra which included her performing repetitive duties involving standing, kneeling and reaching above shoulder height. She stated that her back pain was being aggravated by such duties so she was transferred to office duties which she performed 8 hours per week. She stated that due to increasing back pain she was eventually certified as being unfit for work from 13 December 2011. In the proposed common law Statement of Claim, Ms Robinson relied on injuries sustained by her on specific dates and throughout the course of her employment until 14 December 2011.
9 On 19 June 2014, Ms Robinson completed a further WorkCover claim form alleging that she sustained back injuries as a result of performing awkward and repetitive duties throughout the course of her employment from 30 November 2010 to 14 November 2011. The defendant by way of notice dated 31 July 2014, rejected her claim on a number of grounds including; she did not sustain an injury, her employment was not a material contributing factor to the alleged back injury, her employment was not a significant contributing factor to the causation, aggravation, acceleration, exacerbation or deterioration of a disease, that she failed to give notice of her back injury within 30 days of becoming aware of it, her claim was made after she ceased to be employed, she could have reasonably made the claim whilst employed and that she did not make her claim as soon as practicable after her incapacity became known. In support of the decision to reject the claim, the defendant relied on a medical opinion of Mr Troy who diagnosed that she had a degenerative spinal condition which was not contributed to by her employment.
10 As indicated, in the current proceedings Ms Robinson relies on back injuries sustained in the course of her employment between 30 November 2010 and 14 November 2011. The preliminary ruling sought by the parties is whether the principles in Anshun are applicable based on the factual scenario as set out above.
11 The principles of Anshun estoppel as discussed by Magistrate Wright in Stankovic are;
a. Such a finding should be exercised with caution, and only in the most exceptional case;
b. The onus is a heavy one and a finding of an Anshun estoppel should not be made lightly and is to be applied only in the clearest cases as it ends a litigant’s right to have the merits of their claim adjudicated and may result in a serious injustice if it is applied too readily;
c. The court should not take a superficial approach and simply look at whether the parties are the same and the cause of action similar;
d. There may be a variety of circumstances in which a party may justifiably refrain from litigating an issue in one proceeding but may wish to litigate in a subsequent proceeding;
e. The risk of inconsistent judgments is the most important factor going to the existence of the Anshun principle;
f. When looking at the issue of reasonableness, other issues including; the character of the previous proceeding, the scope of any pleadings, the length and complexity of any trial, any real or reasonably perceived difficulties in raising the relevant claim earlier and any other explanation for the failure to raise the claim previously should be considered.
12 In Stankovic, Magistrate Wright also noted that there is no legislative provision in the Accident Compensation Act 1985 or Workplace Injury Rehabilitation and Compensation Act 2013 enshrining Anshun estoppel in weekly payments or medical expenses claims. He also stated that because of their nature, courts should be more careful in workers compensation matters in considering the dismissal of proceedings using the Anshun principles as they are different to other civil cases and common-law personal injury cases which may explain the lack of Anshun estoppel findings in workers compensation cases in Australia.
13 In the more recent case of Slaveska v State of Victoria[2], the Court of Appeal also had to consider the application of Anshun estoppel. The court said;[3]
‘The test for the application of an Anshun estoppel is one of reasonableness. A party cannot raise an issue in subsequent proceedings in circumstances where that issue was so relevant to the first proceeding that it was unreasonable not to have raised it there. In Gibbs v Kinna Kenny JA held that the question ‘ [w]hether or not it is unreasonable for a party asserting a cause of action in a later proceeding not to have done so in an earlier proceedings depends almost entirely on the particular circumstances’. However, her honour considered that there are two matters which must first be established before it can be said that the failure to raise a cause of action earlier might be said to have been unreasonable. First, the cause of action must be one that could have been raised in the previous proceeding. Secondly, it must appear that the same or substantially the same facts will arise for consideration in the second as in the first proceeding”.
[2] [2015] VSCA 140
[3]Para 194.
14 The Court of Appeal also considered the issue of the risk of inconsistent judgments. It said;[4] “In Gibbs v Kinna, Kenny JA held that one factor indicative of unreasonableness in failing to assert a claim in an earlier proceeding is a risk of inconsistent judgments. Her honour stated; if any judgment or order which might be made on the cause of action in the subsequent proceeding would conflict with a judgment or order in the earlier proceeding, then it will ordinarily be unreasonable to refrain from raising the cause of action in the first proceeding”. Later in its judgment the Court also said;[5] “Moreover, while it may be accepted that ‘considerations of convenience and justice’ are at the foundation of and Anshun estoppel, that does not mean that the court may consider the unreasonableness question in an elastic way or merely on the basis of a value judgement aimed at avoiding the mischief of re-litigation. Rather, as described earlier in these reasons, the authorities require the court to exercise great caution before finding that an Anshun estoppel operates. The respondents faced a heavy burden in contending for an Anshun estoppel”.
[4]Para 207.
[5]Para 223.
15 Mr Richards submitted that in the circumstances, Ms Robinson should have relied on the entire period of her employment in the earlier proceedings as all the facts relating to her alleged injuries and the alleged contribution of her employment activities to those alleged injuries were known to her at the time she ceased employment in December 2011 and prior to her issuing the earlier proceedings as evidenced by her sworn affidavit in the Application for a ‘serious injury’ certificate dated 23 September 2012. The defendant submitted that this proceeding therefore amounts to an abuse of process.
16 Mr Horner submitted that Anshun estoppel does not apply because;
a. The first proceeding related to an ‘accepted injury’ sustained on 19 August 1999;
b. No other claim form had been submitted by Ms Robinson alleging injuries throughout the course of employment and therefore the court did not have jurisdiction to consider a claim based on an assertion that her injuries arose throughout the course of her employment;
c. The earlier proceeding only finalised her entitlements to compensation in the form of weekly payments and medical expenses for the injury sustained on 19 August 1999 and the facts alleged in the current proceeding are different in nature;
d. The current proceeding arises from a separate period of employment, a new injury, being an aggravation of a pre-existing injury, a further claim form being lodged and a new decision by the defendant to reject liability. Accordingly, he submits that different facts and issues arise for determination by the court.
Conclusion
17 The issues to be determined in this proceeding are essentially different to those determined in proceeding D10776036. These include; matters relating to causation, period of employment, injury and the claimed entitlement to weekly payments and medical expenses. A determination in favour of Ms Robinson on these issues will not lead to an inconsistent judgment to the earlier proceeding.
18 The real issue to determine is whether the failure of Ms Robinson to include the allegation of injuries arising in the course of her employment between 30 November 2010 and 14 November 2011 in the earlier proceeding can be considered unreasonable in the circumstances thereby amounting to an abuse of process. I do not consider it to be so for the following reasons;
a. The only WorkCover claim form lodged by her at that time was in relation to the injury sustained on 19 August 1999;
b. The defendant admitted she sustained an injury on that date;
c. The numerous amendments to the pleadings in the earlier proceeding regularised that proceeding so that the issues to be determined were restricted to her entitlement to compensation under the Act for an injury occurring on the specific date;
d. There being no claim form lodged by Ms Robinson alleging injury during the relevant period and no decision relating to it by the defendant meant the court did not have jurisdiction to determine that issue in the earlier proceeding;
e. If it was the intention of the parties to include all injuries sustained by her throughout the course of her employment in the resolution of the earlier proceeding, steps could have been taken to ensure that outcome providing the steps taken complied with the provisions of the Act and enlivened the jurisdiction of the court to finally determine all entitlements at that time.
10 Ms Robinson is entitled to have this proceeding determined on its merits. The defendant has failed to satisfy its heavy onus in relying on Anshun estoppel and accordingly, the defendant’s application is refused.
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