Saade v Sydney Night Patrol & Inquiry Co Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Saade v Sydney Night Patrol & Inquiry Co Pty Limited [2021] NSWPIC 185
APPLICANT:	Rodrick Saade
RESPONDENT:	Sydney Night Patrol & Inquiry Co Pty Limited t/as SNP Security
MEMBER:	Anthony Scarcella
DATE OF DECISION:	16 June 2021
CATCHWORDS:	Accepted injury to the left lower extremity; prior proceedings for weekly benefits compensation and medical and treatment related expenses did not dispute alleged consequential condition of the lumbar spine as a result of the accepted injury and resulted in an ongoing award of weekly benefits; whether the respondent was estopped from disputing the said consequential condition in subsequent proceedings for permanent impairment compensation; res judicata estoppel, issue estoppel and Anshun estoppel discussed and considered; Habib v Radio 2UE Sydney Pty Limited, Blair v Curran, Hoystead v Commission of Taxation; Pond v WorkCover/Allianz Australia (Wunda Joinery) and Port of Melbourne Authority v Anshun Pty Limited considered and applied; Held- the respondent estopped from disputing the consequential condition of the applicant’s lumbar spine as a result of the accepted injury to his left foot, left ankle and left heel in the course of his employment with the respondent; the matter remitted to the President for referral to a Medical Assessor for permanent impairment assessment under the 1998 Act (left lower extremity and lumbar spine).
DETERMINATIONS MADE:	1. The respondent is estopped from disputing the consequential condition of the applicant’s lumbar spine as a result of the accepted injury to his left foot, left ankle and left heel in the course of his employment with the respondent, deemed to have occurred on 27 March 2019.
ORDERS MADE	2. The matter is remitted to the President for referral to a Medical Assessor for assessment under the Workplace Injury Management and Workers Compensation Act 1998 as follows: Date of injury: 27 March 2019 (deemed). Body System: Left lower extremity (left foot, left ankle and left heel) and the spine (lumbar spine). Method of Assessment: Whole Person Impairment. 3. The following documents are to be provided to the Medical Assessor: (a) Application to Resolve a Dispute dated 11 March 2021 and attached documents, with the exception of the forensic medical report by Dr Utham Dias dated 28 April 2020. (b) Reply dated 1 April 2021 and attached documents. (c) Respondent’s Application to Admit Late Documents dated 6 May 2021 and attached audio file. (d) Applicant’s Application to Admit Late Documents dated 12 May 2021 and attached document. (e) The Certificate of Determination and Statement of Reasons of Member Kerry Haddock in the Workers Compensation Division of the Commission in matter number 7193/20 dated 30 March 2021. (f) This Certificate of Determination and Statement of Reasons.

STATEMENT OF REASONS

BACKGROUND

The applicant, Mr Rodrick Saade, is a 49-year-old man who was employed by Sydney Night Patrol Inquiry Co Pty Limited (the respondent) as a security guard.
Mr Saade alleged that he sustained injuries to his left foot, left ankle and left heel as a result of the nature and conditions of his employment with the respondent. He also alleged that he sustained consequential injuries to both legs and lumbar spine as a result of the injuries to his left foot, left ankle and left heel. He further alleged that he sustained a secondary psychiatric/psychological condition as a result of his physical injuries.
Mr Saade lodged a claim for weekly benefits and medical expenses under the Workers Compensation Act 1987 (the 1987 Act) with Employers Mutual NSW Limited (EML), the respondent’s insurer. Compensation was paid until 15 May 2020.
On 23 April 2020, Insurance & Care NSW (iCare), on behalf of the respondent, issued a Dispute Notice under section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for the payment of weekly benefits and medical and related treatment expenses from 15 May 2020, on the basis that Mr Saade did not have a total or partial incapacity for work resulting from an injury.[1] iCare also disputed liability for Mr Saade’s alleged psychological injury.
[1] Reply at pages 7-12
On 25 May 2020, Mr Saade gave notice of his intention to claim payment of weekly benefits from 18 May 2020 and continuing at the rate of $1,250 per week.[2]
[2] Application to Resolve a Dispute at page 35
On 2 October 2020, Mr Saade lodged an Application to Resolve a Dispute (ARD) in the now abolished Workers Compensation Commission (matter number 5735/20) seeking the ongoing payment of weekly benefits.[3] On 3 December 2020, the ARD was discontinued.
[3] ARD at pages 15-23
On 30 November 2020, Mr Saade claimed permanent impairment compensation under section 66 of the 1987 Act for injuries deemed to have occurred during the course of his employment with the respondent on 27 March 2019. Mr Saade claimed permanent impairment compensation in respect of 14% whole person impairment of the lumbar spine and left lower extremity. He also claimed 15% whole person impairment in respect of psychological/psychiatric injury.[4]
[4] ARD at pages 1-2
On 9 December 2020, Mr Saade lodged an ARD in the Workers Compensation Commission (matter number 7193/20) seeking the ongoing payment of weekly benefits as a result of the injuries sustained in the course of his employment with the respondent deemed to have occurred on 27 March 2019.[5] No claim was made for permanent impairment compensation in the ARD.
[5] ARD at pages 4-14
On 22 February 2021, the respondent’s lawyers put Mr Saade’s lawyers on notice that the respondent would be relying on the forensic medical reports of Dr Yajuvendra Bisht dated 11 February 2021 and Dr Anthony Smith dated 19 February 2021 in relation to the then current Commission proceedings for weekly benefits and treatment expenses and also in response to the claim for section 66 permanent impairment compensation.[6]
[6] ARD at page 3
On 28 February 2021, the Workers Compensation Commission was abolished and was replaced by the Personal Injury Commission (the Commission). Under the relevant transitional provisions, matter number 7193/20 was heard by Member Kerry Haddock in the Workers Compensation Division of the Commission on 10 March 2021.
On 11 March 2021, one day after the arbitration hearing in the Commission before Member Haddock, Mr Saade lodged an ARD in the Commission claiming permanent impairment compensation under section 66 of the 1987 Act for injuries deemed to have occurred during the course of his employment with the respondent on 27 March 2019. The ARD claimed permanent impairment compensation in respect of 14% whole person impairment of the lumbar spine and left lower extremity. Mr Saade also claimed 15% whole person impairment in respect of psychological/psychiatric injury. It is this ARD that has come before me for determination.
On 30 March 2021, Member Haddock’s Certificate of Determination and Statement of Reasons in matter number 7193/20 was issued. Member Haddock found that Mr Saade had no current work capacity from 15 May 2020 and entered an award in his favour pursuant to section 37 of the 1987 Act at the rate of $1,047.51 per week from 15 May 2020 and continuing.
On 1 April 2021, iCare issued a Dispute Notice under section 78 of the 1998 Act denying an entitlement to permanent impairment compensation under section 66 of the 1987 Act.[7] The reasons for the decision were stated to be that Mr Saade’s accepted physical injury had not resulted in more than 10% permanent impairment as required by section 66(1) of the 1987 Act and that, under section 65A(1) of the 1987 Act, no compensation was payable for Mr Saade’s psychological injury because it was a secondary psychological injury. The Dispute Notice also denied that Mr Saade had sustained a primary or consequential injury to his right lower extremity and/or lower back related to the accepted left plantar fasciitis injury.
[7] Reply at pages 1-6
This matter was listed before me for a teleconference on 14 April 2021. At the teleconference, Mr Saade conceded that he could not proceed with his claim for permanent impairment compensation for psychological injury because such injury was a secondary psychological injury and that section 65A (1) of the 1987 Act applied. Accordingly, that part of his claim was discontinued. The balance of the dispute could not be resolved at the teleconference and the matter was set down for a telephone conciliation/arbitration before me on 12 May 2021.

ISSUES FOR DETERMINATION

The parties agreed that the following issues remained in dispute:

(a) Whether the respondent is estopped from disputing the alleged consequential injury to the lumbar spine in light of proceedings numbered 7193/20 in the Commission and Member Haddock’s Certificate of Determination and Reasons dated 30 March 2021 therein.
(b) In the alternative, if there is a finding that there is no estoppel, whether the respondent’s Dispute Notice under section 78 of the 1998 Act issued on 1 April 2021 was defective and that as a consequence, there was no genuine dispute in respect of the lumbar spine.
(c) In the alternative, if there is a finding that there is no estoppel or that the respondent’s Dispute Notice under section 78 of the 1998 Act issued on 1 April 2021 was not defective, whether Mr Saade suffered a consequential condition to his lumbar spine as a result of the accepted left foot, left ankle and left heel injury deemed to have occurred on 27 March 2019.
(d) Whether Mr Saade is entitled to permanent impairment compensation within the meaning of section 66 of the 1987 Act.

Matters previously notified as disputed

The issues in dispute were notified in the Dispute Notice referred to above.

Matters not previously notified

No other issues were raised.

PROCEDURE BEFORE THE COMMISSION

The parties participated in a conciliation conference/arbitration by telephone on 12 May 2021. Mr Greg Schipp of counsel appeared for Mr Saade, instructed by Mr Christopher Chidiac, solicitor and Mr Ross Hanrahan of counsel, instructed by Mr Dennis Kim, solicitor appeared for the respondent. Ms Gillian Lawrence of EML was also present. The same representatives appeared before Member Haddock in proceedings numbered 7193/20 on 10 March 2021.
During the conciliation phase the following interlocutory disputes arose and were discussed:
(a) The respondent’s objection to the applicant relying on two forensic medical reports, namely, the reports of Dr James Bodel and Dr Utham Dias in breach of clause 44 of the Workers Compensation Regulation 2016.
(b) Whether the respondent’s Dispute Notice under section 78 of the 1998 Act issued on 1 April 2021 was defective and that, as a consequence, there was no genuine dispute in respect of the consequential injury to the lumbar spine.
During the conciliation phase Mr Saade withdrew the report of Dr Dias.
During the conciliation phase, the parties agreed as follows:
(a) The issue in respect of the alleged defective Dispute Notice be determined as part of my final determination after having considered the estoppel issue, if required.
(b) Any referral to a Medical Assessor to assess Mr Saade’s whole person impairment in respect of the accepted injury would have the body system described as “left lower extremity (left foot, left ankle and left heel)”.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:

(a)    ARD dated 11 March 2021 and attached documents, with the exception of the forensic medical report by Dr Dias dated 28 April 2020.
(b)    Reply dated 1 April 2021 and attached documents.
(c)    Application to Admit Late Documents (AALD) lodged by the respondent dated 6 May 2021 and attached audio file.
(d)    AALD lodged by the applicant dated 12 May 2021 and attached document.
(e)    The Certificate of Determination and Statement of Reasons of Member Kerry Haddock in Commission’s Workers Compensation Division matter number 7193/20 dated 30 March 2021.

Oral Evidence

Neither party sought leave to adduce oral evidence from or to cross-examine any witness.

Mr Saade’s Commission proceedings 7193/20 before Member Haddock

In the proceedings before Member Haddock, the respondent relied on its Dispute Notice dated 20 April 2020. The Dispute Notice disputed liability for the payment of weekly benefits and medical and related treatment expenses from 15 May 2020, on the basis that Mr Saade did not have a total or partial incapacity for work resulting from an injury and also disputed liability for Mr Saade’s alleged psychological injury.[8]
[8] Reply at pages 7-12
On 25 May 2020, Mr Saade gave notice of his intention to claim payment of weekly benefits from 18 May 2020 and continuing. The respondent did not issue another Dispute Notice in respect of Mr Saade’s claim.
On 30 November 2020, Mr Saade claimed permanent impairment compensation under section 66 of the 1987 Act for injuries deemed to have occurred during the course of his employment with the respondent on 27 March 2019.
On 9 December 2020, Mr Saade lodged an ARD in the Workers Compensation Commission (matter number 7193/20) seeking the ongoing payment of weekly benefits as a result of the injuries sustained in the course of his employment with the respondent deemed to have occurred on 27 March 2019.[9] No claim was made for permanent impairment compensation in the ARD. The injury description was pleaded as follows:
“Left heel (Plantar fasciitis), Both legs, Lower back & Psychiatric/psychological”[10]
[9] ARD at pages 4-14
[10] ARD at page 11
The injury description pleaded in the ARD presently before me was identical to that pleaded in the ARD dated 9 December 2020 in Commission matter number 7193/20.
In evidence, is the audio file of the hearing in Commission matter number 7193/20 before Member Haddock on 10 March 2021.[11] I have listened to the audio file. In evidence, there is the transcript of the hearing in Commission matter number 7193/20 before Member Haddock (Transcript).[12] Having listened to the audio file, I found it to be an accurate transcription of the hearing, apart from a few obvious typographical errors.
[11] Respondent’s AALD dated 6 May 2021
[12] Applicant’s AALD dated 12 May 2021
Shortly after the commencement of the arbitration hearing on 10 March 2021, Member Haddock requested counsel for the respondent, Mr Hanrahan, to annunciate the issues. Mr Hanrahan responded as follows:
“The issues are in capacity [sic] Arbitrator, purely and simply.”[13]
[13] Transcript at page 2 at line 6
After some short discussion, Member Haddock confirmed with Mr Hanrahan that the only issue for her determination was incapacity.[14]
[14] Transcript at page 3 at lines 22-24
The pleaded injuries were not put in issue at any stage during the arbitration hearing on 10 March 2021.
On 30 March 2021, Member Haddock’s Certificate of Determination and Statement of Reasons in matter number 7193/20 were issued (Reasons). I will now refer to the relevant parts of the Reasons.
Member Haddock, by way of background, recorded that Mr Saade had sustained injury to his left heel (plantar fasciitis), both legs and lower back as a result of the nature and conditions of his employment as a security guard with the respondent. The injury was deemed to have occurred on 27 March 2019. It was also recorded that Mr Saade sustained a psychiatric/psychological condition as a result of his physical injuries.[15] Member Haddock noted that liability for Mr Saade’s physical injuries was accepted and the compensation was paid until 15 May 2020 and that liability for a psychiatric/psychological condition was disputed.[16]
[15] Reasons [1]
[16] Reasons at [2]
Member Haddock stated that the respondent had confirmed that the only issue in dispute was whether Mr Saade had an incapacity for work after 15 May 2020; and if so, the extent of any such incapacity.[17] The Member also noted that the parties agreed that such issue was the only one in dispute.[18]
[17] Reasons at [10]
[18] Reasons at [11]
Member Haddock reviewed the evidence in some detail. Under the heading “Summary”, the Member stated:
“197. The only issue in this matter is the applicant’s work capacity from 15 May 2020. The respondent’s counsel described the issue as ‘ pure and simply’ incapacity.
198. There is therefore no dispute that the applicant sustained injury to his left heel (plantar fasciitis), both legs and a consequential condition of his lower back arising out of or in the course of his employment with the respondent, the injury deemed to have occurred on 27 March 2019. There is also no dispute that the applicant had sustained a secondary psychiatric/psychological injury as a result of his physical injuries.”[19]
[19] Reasons at [197]-[198]
Member Haddock made the following finding:
“206. The applicant in this matter has both physical injuries and a psychiatric/psychological condition that is secondary to those injuries. The respondent has not disputed that he has developed a consequential condition of the lumbar spine as a result of the accepted injury to his left foot.”[20]
[20] Reasons at [206]
Member Haddock found that the weight of the medical evidence led her to the conclusion that Mr Saade was not able to return to his pre-injury duties, which involved him standing for long periods. The Member found support for this finding in the opinions of Dr Mapa, Dr Ian Smith, Dr Bodel and, inferentially, Dr Chang. The Member found Dr Anthony Smith’s reports (relied on by the respondent) of little assistance. The member noted that Dr Anthony Smith accepted that Mr Saade had left plantar fasciitis but did not consider that it was really an injury. The Member stated that, given injury was conceded, it was not an issue that she was required to determine.[21]
[21] Reasons at [207]-[208]
Member Haddock referred to Dr Bodel’s opinion in March 2021 that Mr Saade’s back injury would cause him difficulty standing, walking and patrolling and that he would be better suited to predominantly sedentary work. The Member preferred the evidence of Dr Mapa, Dr Moses, Dr Ian Smith, Dr Bodel and Dr Chang to that of Dr Anthony Smith.[22]
[22] Reasons at [213]-[214]
Member Haddock also found that Mr Saade’s psychological condition would prevent him from returning to his pre-injury employment, even if his physical injury did not.[23] The result of Mr Saade’s physical injuries was that he would only be able to perform sedentary work.[24]
[23] Reasons at [219]
[24] Reasons at [222]
It is clear from Member Haddock’s Reasons that the combination of Mr Saade’s physical injuries and secondary psychological condition resulted in the ultimate finding that he had no current work capacity from 15 May 2020. The Member entered an award in Mr Saade’s favour pursuant to section 37 of the 1987 Act at the rate of $1,047.51 per week from 15 May 2020 and continuing.

SUBMISSIONS

The parties made oral submissions at the arbitration hearing which were sound recorded. The sound recording is available to the parties. I will refer to the parties’ submissions under each relevant issue for determination set out below.

FINDINGS AND REASONS

The estoppel issues

Mr Saade’s principal submissions in relation to this issue may be summarised as follows:
(a)    Mr Saade’s ARD in Commission matter number 7193/20 pleaded identical injuries as those pleaded in the present proceedings. The matter was heard and determined on 30 March 2021.
(b)    It is beyond any form of dispute that the only issue that was before Member Haddock in the above mentioned proceedings was the issue of incapacity and was referred to as such in Member Haddock’s Statement of Reasons dated 30 March 2021 at [2], [10], [11], [198] and [206]. In the Transcript at page 2, Mr Hanrahan confirmed that the issues were purely and simply incapacity. The only interpretation that can be placed on the sole issue being incapacity was that there was an acceptance of all of the pleaded injuries, including the consequential condition of Mr Saade’s lumbar spine.
(c)    There can be no dispute that Mr Saade’s consequential back condition has been determined. Member Haddock determined that Mr Saade was incapacitated for work as a result of the pleaded injuries. Mr Saade’s restrictions included restrictions related to his back pain. Mr Saade’s back injury cannot be extricated from Member Haddock’s determination. Member Haddock reviewed the medical evidence, including the evidence in respect of Mr Saade’s back.
(d)    Mr Saade’s counsel relied on his submissions in the Transcript.
(e)    Member Haddock’s acceptance of Mr Saade’s back and leg condition made it unarguable that the respondent chose to make a forensic decision in terms of what it disputed in those proceedings. The parties are bound by the forensic decisions of their legal representatives. If the respondent chose to make a forensic decision and dispute a particular matter at that time, it is not now open to it to change its mind.
(f)    If the respondent were allowed to dispute the consequential injury to Mr Saade’s back in these proceedings, the question is how would that sit with a finding of total incapacity, if, in these proceedings, it was found that the back condition was not related? How could those two findings possibly fit together? They could not. There is a presumption that there needs to be some consistency in decision making. It is now too late to wind back the clock on that particular issue.
(g)    There is a principle of finality in relation to decisions. One cannot just continually come back and reagitate issues that have been previously determined. That is not the way the system is meant to work.
(h)    There is an estoppel in the circumstances of Mr Saade’s case. Mr Saade referred to and relied on Rinker Group Limited v Mackell (Rinker).[25]
(i)    Res judicata estoppel, issue estoppel and Anshun estoppel arise in Mr Saade’s matter.
(j)    Res judicata estoppel applies in Mr Saade’s matter. The manner in which the respondent conducted itself in Commission matter number 7193/20 resulted in a type of consent order or admission. That is, the respondent consented to there being no dispute in respect of the consequential injury to Mr Saade’s back. These sort of consent orders can give rise to res judicata estoppel and will do so where there are necessary admissions. The questions that were concluded must be considered. The finding of a consequential injury to Mr Saade’s back was fundamental to the determination of Member Haddock.
(k)    Issue estoppel applies in Mr Saade’s matter. In this particular matter, there is not a lot of difference between a res judicata estoppel and an issue estoppel. An issue estoppel binds the parties as to the issues actually determined. If there were a different issue that could be extracted from the Member’s decision, then that might not be the subject of an issue estoppel. In this case, the issue of the consequential back injury cannot be extracted. The consequential back injury was fundamental to the determination. There is no estoppel in situations capable of change but that is not the case in this matter.
(l)    Mr Saade also referred to and relied on Kuppers v New South Wales Fire Brigades (Kuppers)[26] in respect of issue estoppel. For there to be an issue estoppel there has to be, firstly, the same question involved; secondly, a final decision made; and thirdly, involvement of the same parties.[27] Mr Saade’s matter fulfilled all three requirements. The finding must be indispensable to the conclusion in the previous decision.[28] It is exactly the position in this matter.
(m)     Mr Saade referred to the principles espoused in Port of Melbourne Authority v Anshun Pty Limited (Anshun)[29] (known as Anshun estoppel) and referred to Rinker. Anshun estoppel applies in Mr Saade’s matter. Anshun estoppel arises where a party seeks in subsequent proceedings to raise a defence that could and should have been raised in the earlier proceedings between the same parties but was not.[30] Anshun estoppel depends on considerations of public policy and the reasonableness of the conduct of the litigants.[31] It was not reasonable for the respondent to reagitate an issue which it had an opportunity to raise at an earlier time but failed to do. In this matter, there is a type of admission in the earlier proceedings.
(n) The situation is analogous to an alteration in a section 78 Dispute Notice, where a respondent seeks to raise further grounds that it had not raised before. Relevant cases in this regard are Mateus v Zodune Pty Limited t/as Tempo Cleaning Services (Mateus)[32] and Office of Public Guardian v Manning (Manning),[33] where the matters relevant to the exercise of the decision-maker’s discretion under section 289A(4) of the 1998 Act were identified.
(o)    Mr Saade referred to and relied on Begnell v Super Start Batteries Pty Limited (Begnell)[34] in respect of the withdrawal of admissions and the provision of evidence of the circumstances that caused a party to change its mind about whether it was liable, that is, to explain away the admission. There was no explanation by the respondent or any evidence from the respondent as to why it was that the respondent chose not to dispute the consequential injury to Mr Saade’s back before Member Haddock. If there were to be an explanation, it would have had to have been in evidence. If there was some misapprehension at an earlier time about some evidence or that circumstances had changed, that would be a circumstance where one could withdraw an admission. That was not the case in this matter.
[25] Rinker Group Limited v Mackell [2008] WCCPD 100 at [107]-[131]
[26] Kuppers v New South Wales Fire Brigades [2005] NSWSC 193
[27] Kuppers v New South Wales Fire Brigades [2005] NSWSC 193 at [20] and [23]
[28] Kuppers v New South Wales Fire Brigades [2005] NSWSC 193 at [26]
[29] Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; 147 CLR 589
[30] Rinker Group Limited v Mackell [2008] WCCPD 100 at [127]
[31] Rinker Group Limited v Mackell [2008] WCCPD 100 at [129]
[32] Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227
[33] Office of Public Guardian v Manning [2008] NSWWCCPD 94 at [64]-[71]
[34] Begnell v Super Start Batteries Pty Limited [2009] NSWWCCPD 19 at [95]

The respondent’s principal submissions in relation to this issue may be summarised as follows:
(a)    The authorities referred to in Mr Saade’s submissions in relation to estoppel are not that easy to discern.
(b)    In Rinker, Roche DP discussed matters raised by a party and the time that those matters are raised.[35] It is significant that Roche DP specifically excluded estoppel in respect of a later claim for lump sum compensation. That is the case in this matter.
(c)    Whether the alleged estoppel be regarded as an issue estoppel, Anshun estoppel or res judicata estoppel, the situation in this case is that no decision maker has been given an opportunity to consider or considered the relationship of Mr Saade’s back condition to the accepted injury in a way which has been distinctly put in issue in the proceedings.
(d)    It was not necessary for Member Haddock to determine the relationship between Mr Saade’s back condition to the accepted injury because on the respondent’s reading of her decision, incapacity arose as a result of his left leg injury and his psychological state, which appeared, in the Member’s reasons, to be a more significant condition than the condition of his leg. The relationship of Mr Saade’s back condition to the accepted injury was not crucial to Member Haddock’s decision; it was not a necessary element of the decision; and it was not expressly determined as a result of the decision.
(e)    The respondent is not estopped from now raising the question so that a proper determination can be made on the record.
[35] Rinker Group Limited v Mackell [2008] WCCPD 100 at [126]
Mr Saade’s submissions in reply may be summarised as follows:
(a) The respondent’s submission in respect of Rinker, that estoppel does not arise in respect of a later claim, is incorrect. It is clear from Roche DP’s discussion that whether or not the estoppel operates depends on the facts of each case. In this case, there was an admission and finding of injury to the back.
(b) Member Haddock did take into account incapacity insofar as it related to Mr Saade’s back. Whilst it may not have been a predominant part of what the Member took into account in respect of incapacity, it is impossible to extricate it from the finding of incapacity.
I now turn to a consideration of the legal principles in respect of estoppel.

Although the circumstances that give rise to estoppel and the underlying principles of the different categories of estoppel vary significantly, the common and essential effect is that a party to litigation is prevented from making an assertion that is contrary to matters of fact and/or law which are deemed to have been conclusively disposed of.
Parties may, at times, conflate and confuse the various categories of estoppel, and it is important when considering an estoppel argument that the category of estoppel is identified precisely and submissions are considered within the scope of that category.
In response to my enquiry as to the category of estoppel relied on by Mr Saade, his counsel submitted that he relied on res judicata estoppel, issue estoppel and Anshun estoppel in respect of the respondent’s disputation of the consequential condition to the lumbar spine. Mr Saade bears the onus in this regard.
In determining whether an estoppel has been made out, I am entitled to look at the record, including Member Haddock’s Statement of Reasons dated 30 March 2021 and the transcript of those proceedings in order to see what was actually decided.[36] I am entitled to consider any material that showed what issues were raised and decided[37] and I am entitled to consider the evidence in the prior proceedings to show what issues were decided.[38] I am to enquire into realities and not mere technicalities.[39]
[36] Egri v DRG Australia Limited (1988) 19 NSWLR 600 also referred to in Kuppers
[37] Jackson v Goldsmith (1950) 81 CLR 446 at 467 and Rogers v The Queen (1994) 181 CLR 251 at 263 both cases also referred to in Kuppers
[38] Ord v Ord (1923) 2 KB 432 at 442; Carl Zeiss Stiftung v Rayner & Keeler Limited (No 2) [1967] 1AC 853 at 965 (Carl Zeiss Stiftung); and Murphy v Abi-Saab (1995) 37 NSWLR 280 at 288, all three cases were referred to in Kuppers
[39] R v Humphrys (1977) AC 1 at 41 also referred to in Kuppers
Mr Saade relied on Rinker and Kupper. Rinker referred to res judicata estoppel and issue estoppel with a focus on consent orders. Rinker also touched on Anshun estoppel, also with a focus on consent orders. I reject Mr Saade’s submission that what occurred in the prior proceedings amounted to “sort of consent orders” in respect of the alleged consequential injury to his lumbar spine. Kupper focused on issue estoppel. Many of the authorities referred to below were referred to in Kupper.
A party is not permitted to agitate issues which have already been the subject of prior proceedings and which have either been explicitly determined (res judicata) or are deemed to have necessarily been determined having regard to the terms on which the prior proceedings concluded (issue estoppel). Anshun estoppel usually arises where a party seeks in subsequent proceedings to raise a defence that could and should have been raised in the earlier proceedings between the same parties but was not. In certain circumstances, the party may be estopped from raising that defence in later proceedings. The underlying rationale is to avoid contradictory outcomes. I will now consider each of the above-mentioned estoppels separately.
I will firstly deal with res judicata estoppel relied on by Mr Saade.
The doctrine of res judicata provides that a cause of action which has been determined by a court of competent jurisdiction, or by a lawfully constituted tribunal, may not be re-litigated. Once a cause of action is determined to have merit, it is said to have “merged” into the judgment, and to have no independent existence: Blair v Curran (Blair).[40] An unsuccessful defendant will, in future proceedings, not be able to make an assertion which is contrary to the terms of a judgment by which the cause of action was found to exist. The objective underpinning of the doctrine is the achievement of certainty and finality in the determination of a particular dispute, and the avoidance of contradictory outcomes.
[40] Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 also referred to in Kuppers
In Habib v Radio 2UE Sydney Pty Limited (Habib),[41] McColl JA (Giles and Campbell JJA agreeing) said:
“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 or 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.”[42]
[41] Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231
[42] Habib v Radio 2UE Sydney Pty Limited [2009] NSWCA 231 at [73].
The doctrine of res judicata will, provided all constituent elements (to which I will refer below) are in place, serve to bind tribunals and courts in subsequent proceedings in respect of matters of law and fact forming the substantive terms of the prior decision.
In The Doctrine of Res Judicata by Spencer Bower, Turner and Handley, 3^rd edition, 1996 (Spencer Bower), the authors (at 19) specify the following constituent elements of a res judicata estoppel:
(a)    The decision was judicial in the relevant sense.
A judicial decision includes judgments, orders, decrees, sentences, judicial declarations and the like, whether the decision was an issue of fact, law, or both fact and law, whether the jurisdiction was original or appellate and a decision resulting from an equal division of the tribunal. The decision in Commission matter number 7193/20 by Member Haddock satisfied this element.
(b)    It was in fact pronounced.
It is essential that there is a formal record which emanates from the relevant judicial tribunal or court and which records the tribunal’s or court’s adjudication of the questions before it. The decision in Commission matter number 7193/20 by Member Haddock satisfied this element.
(c)    The tribunal had jurisdiction over the parties and the subject matter.
If the tribunal or court which purported to decide an issue between parties had no jurisdiction over the parties and/or in respect of the issue in question, its decision, in respect of any issue beyond jurisdiction, would be a nullity and would not therefore finally dispose of any such issue. The decision in Commission matter number 7193/20 by Member Haddock satisfied this element.
(d)    The decision was final.
The party relying on a decision as giving rise to a res judicata estoppel bears the burden of establishing the finality of such a decision. It should be apparent from a reading of the decision that the tribunal or court has finally determined particular rights and obligations. A bare declaration does not lack finality. Decisions in the Commission are final despite statutory rights of appeal and reconsideration: CSR Timber Products Pty Limited v Weathertex Pty Limited.[43] It is necessary to consider the purposes for which any quality of “finality” is ascribed to decisions of a statutory body such as the Commission: Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine (Hine).[44] The decision in Commission matter number 7193/20 by Member Haddock was final in relation to Mr Saade’s claim for weekly benefits and medical and related expenses compensation.
[43] CSR Timber Products Pty Limited v Weathertex Pty Limited [2013] NSWCA 49
[44] Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 at [38]
(e)    The decision was on the merits.
In The Sennar (No.2),[45] Lord Brandon noted the essence of a decision on the merits:
“Looking at the matter positively, a decision on the merits is a decision which establishes certain facts as proved or not in dispute, states what are the relevant principles of law applicable to such facts, and expresses a conclusion with regard to the effect of applying those principles to the factual situation concerned.”[46]
Although a constituent element of res judicata estoppel is that the decision was on the merits, the doctrine does apply to orders which were issued without any preceding ventilation of the issues, as occurs in the cases of consent orders and default judgments. The decision in Commission matter number 7193/20 by Member Haddock satisfied this element. The consequential injury to Mr Saade’s lumbar spine was not put in dispute and so the issue was not ventilated. The decision stated the relevant principles of law applicable to the facts and expressed a conclusion with regard to the effect of applying those principles to the factual situation concerned and came to a conclusion in respect of Mr Saade’s work capacity.
(f)    It determined the same question as that raised in the later litigation.
In keeping with the principle that for res judicata estoppel to operate, a question determined in the first set of proceedings must be identical to that which a party seeks to raise in the second, the parties who were subject to the decision in the first set of proceedings must be identical to those in the second. I am satisfied that the decision in Commission matter number 7193/20 by Member Haddock satisfied this element. The consequential injury to Mr Saade’s lumbar spine was not put in dispute in those proceedings. The respondent now sought to dispute the identical question that was not disputed in the earlier proceedings. The decision in the earlier proceedings stated the relevant principles of law applicable to the facts and expressed a conclusion with regard to the effect of applying those principles to the factual situation concerned, including the undisputed consequential injury to Mr Saade’s lumbar spine. Whilst Member Haddock was not required to determine the question, the respondent’s election not to dispute the consequential injury to the lumbar spine resulted in a determination that incorporated that very issue.
(g)    The parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.
The decision in Commission matter number 7193/20 by Member Haddock satisfied this element.
[45] The Sennar (No.2) (1985) 1 WLR 490 (HL)
[46] The Sennar (No.2) (1985) 1 WLR 490 (HL) at 499
The respondent submitted that, in Rinker, it was significant that Roche DP specifically excluded estoppel in respect of a later claim for lump sum compensation, as was the case in this matter. I reject the respondent’s submission that Rinker was support for the proposition that estoppel does not arise in respect of a later claim. The nature and extent of an estoppel will depend on the facts and circumstances of each case.
The respondent submitted that, whether the alleged estoppel be regarded as an issue estoppel, Anshun estoppel or res judicata estoppel, the situation in this case was that no decision maker had been given an opportunity to consider the relationship of Mr Saade’s lumbar spine condition to the accepted injury in a way which had been distinctly put in issue in the proceedings. I find this submission difficult to follow. The respondent did not put the consequential lumbar spine condition in issue in the earlier proceedings. It had the opportunity to do so. The Member sought confirmation of the issues in dispute on, at least, two occasions. On neither occasion was the consequential lumbar spine condition disputed by the respondent.
The respondent submitted that it was not necessary for Member Haddock to determine the relationship between Mr Saade’s back condition to the accepted injury because on the respondent’s reading of the Member’s decision, incapacity arose as a result of his left leg injury and his psychological state, which appeared, in the Member’s reasons, to be a more significant condition than the condition of his leg. Further, the respondent submitted that the relationship of Mr Saade’s back condition to the accepted injury was not crucial to Member Haddock’s decision; it was not a necessary element of the decision; and it was not expressly determined as a result of the decision. I disagree with both of these submissions. I find that, it is clear from Member Haddock’s Reasons that, the combination of Mr Saade’s physical injuries, including the undisputed consequential condition of his lumbar spine and secondary psychological condition resulted in the ultimate finding that he had no current work capacity from 15 May 2020. It was one of the facts fundamental to the decision arrived at. It was not capable of being excised without affecting the finding on Mr Saade’s work capacity. Doing so could potentially expose the undesirable possibility of a different Member coming to a different conclusion on essentially the same issue.
Member Haddock’s Reasons speak for themselves. The Member found that Mr Saade had both physical injuries, including his consequential lumbar spine condition, and a psychiatric/psychological condition that was secondary to those injuries. The respondent did not dispute that Mr Saade developed a consequential condition of the lumbar spine as a result of the accepted injury to his left foot.
I find that Mr Saade established his cause of action in the proceedings before Member Haddock, so that, upon the issue of the determination, the undisputed consequential lumbar spine condition was necessarily established as a part of the legal foundation for the conclusion reached; a part of the justification for the conclusion reached and was legally indispensable to the conclusion reached. It merged in the determination and no longer had an independent existence. Accordingly, it cannot be re-litigated in these proceedings between the parties and the respondent is estopped from disputing the consequential condition of the lumbar spine as a result of the accepted injury to his left foot in these proceedings.
Despite the finding above and for completeness, I will now deal with issue estoppel, which was also relied on by Mr Saade.
Facts necessarily accepted as a basis for the terms of which the prior proceedings concluded have a similarly binding effect as res judicata on subsequent decisions, by reason of issue estoppel.
Issue estoppel may arise as a consequence of a state or fact of law being determined, which would prevent a party from bringing, or defending, a claim in relation to a different benefit.
A useful statement of the distinction between res judicata and issue estoppel and the policy considerations which inform those principles, is found in Pond v WorkCover/Allianz Australia (Wunda Joinery) (Pond)[47]:
“The principles of res judicata and issue estoppel are both based on the premise that a party cannot re-litigate that which has already been decided. In the case of res judicata, one need go no further than the formal judgment or order of the relevant adjudicating authority. It speaks for itself. In the case of issue estoppel, one can go further to the sub-stratum of findings upon which the formal judgment or order is based, although there are limitations. These are sometimes described as ‘facts fundamental to the decision arrived at’: Hoystead v Commission of Taxation [1926] AC 155; Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531 - 533 per Dixon J (as he then was).
The policies underpinning these premises are these. First, it is desirable that there be an end to litigation. Secondly, it is not desirable for different adjudicating authorities to come to different conclusions on essentially the same issues. Thirdly, a party to litigation should be bound by its conduct and should ‘put all of his or her cards on the table’. Without principles such as issue estoppel, a party who perceived an unfavourable result from the adjudicating authority within which it was conducting litigation could withhold arguments or evidence and then use them in subsequent litigation concerning essentially the same issue in the hope that a differently constituted adjudicating authority might take a more favourable view of the argument or evidence. Whilst that might be seen as a legitimate tactic in the adversarial process it is not a practice that is conducive to the proper and efficient administration of justice.”[48]
[47] Pond v WorkCover/Allianz Australia (Wunda Joinery) [2001] SAWCT 69
[48] Pond v WorkCover/Allianz Australia (Wunda Joinery) [2001] SAWCT 69 at [19]-[20]
The constituent elements of res judicata estoppel, as referred to above and as stated in Spencer Bower (at 19), are applicable to the doctrine of issue estoppel, with the exception of the element that the initial decision determined the same question as that raised in the later litigation. For the reasons referred to above when dealing with the constituent elements, I am satisfied that the decision in Commission matter number 7193/20 by Member Haddock satisfied the rest of those elements.
Considering the sub-stratum of findings on which the Member’s determination was based, I find that state or fact of law determined, prevent the respondent from now raising the previously undisputed issue, in relation to a different benefit, namely the permanent impairment compensation benefit now before me for the reasons discussed below.
The issue of Mr Saade’s consequential condition of the lumbar spine as a result of the accepted injury to his left foot is deemed to have necessarily been determined, having regard to the terms on which the prior proceedings concluded (issue estoppel). The consequential condition of the lumbar spine was not raised as an issue in a Dispute Notice prior to the prior proceedings being determined. It was not raised as an issue at any time during the hearing of the prior proceedings. It was only raised as an issue after the present proceedings were commenced.

On the issue of the determination in the prior proceedings, the undisputed consequential lumbar spine condition was necessarily established as a part of the legal foundation for the conclusion reached; a part of the justification for the conclusion reached and was legally indispensable to the conclusion reached. It was not capable of being excised without affecting the decision and to do so, could potentially expose the undesirable possibility of a different Member coming to a different conclusion on essentially the same issue.
If I am wrong in my finding in respect of the res judicata element that Member Haddock determined the same question, then I find that, on the principles of issue estoppel, the respondent is estopped from disputing the consequential condition of the lumbar spine as a result of the accepted injury to his left foot in these proceedings.
Again, for completeness, I will now deal with Anshun estoppel.
The principle underlying the doctrines of res judicata and issue estoppel is that litigation should produce a final outcome. Those doctrines have been extended by the courts to apply not merely to matters that have been raised and determined in prior proceedings, but to matters that could, and should, have been raised and determined in those proceedings. That extension was explicitly recognised by the High Court, in Anshun.
There will be an Anshun estoppel where the matter relied on in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it there. The principle is based on the policy that parties to litigation should bring forward their whole case and not seek to reopen issues in subsequent litigation, not only to avoid the possibility of inconsistent decisions but also to make efficient use of court or tribunal resources and judicial/decision-maker time.
It is insufficient that the issue could have been raised in the earlier proceedings; it must have been unreasonable not to have done so. The principle applies to matters that could have been relied on in the former proceedings to ground a claim, counterclaim or defence and applies whether the matters relied on in the second proceeding to ground a cause of action or by way of defence. There are circumstances where a party may justifiably refrain from litigating an issue in one proceeding and yet wish to litigate the issue in other proceedings. Some examples are expense; importance of the particular issue; and motives extraneous to the litigation.
The majority in Anshun considered that:
“… Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.”[49]
[49] Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45; 147 CLR 589 at [37]
In workers compensation matters, an employer who did not raise defences pursuant to, say, sections 4, 9A and/or 11A of the 1987 Act in initial proceedings, would in subsequent proceedings relating to the same injury, be barred from raising one of those defences in the subsequent proceedings. It would be unreasonable not to plead such defences in initial proceedings and then raise them in subsequent proceedings. Permitting the employer to do so would introduce the prospect of inconsistent outcomes, with compensation having been awarded in the initial proceedings on the basis that a compensable injury had been sustained, whereas in the subsequent proceedings a decision might be made to the effect that the employer was not liable given the provisions of sections 4, 9A and/or 11A of the 1987 Act to the facts subsequently adduced.
Likewise, it is my view that a failure to raise a defence in respect of an alleged consequential condition as a result of an accepted injury could result in the same inconsistent outcome and that the employer would be barred from raising the defence in the subsequent proceedings. Mr Saade submitted that the respondent’s conduct was unreasonable in seeking to reagitate an issue which it had an opportunity to raise at an earlier time but did not.
I find that, the matter relied on in the present proceedings was so relevant to the subject matter of the first proceedings, that it was unreasonable for the respondent not to rely on it there. I find that the respondent’s conduct was unreasonable in all the circumstances, given the background to the prior proceedings and these proceedings that I have already referred to above. It was unreasonable for the respondent not to plead a defence in respect of the alleged consequential condition to the lumbar spine in the prior proceedings and then raise it in these proceedings. I can find no justifiable reason for the respondent refraining from litigating this issue in the earlier proceeding and yet wishing to litigate the issue in these proceedings. The respondent did not advance any reasons in this regard.
Accordingly, if I am wrong in my conclusions in respect of res judicata estoppel and issue estoppel, I find that Anshun estoppel has been made out and that the respondent is estopped from disputing the consequential condition of the lumbar spine as a result of the accepted injury to his left foot in these proceedings.

The issue in respect of the Dispute Notice under section 78 of the 1998 Act

Due to the findings made in relation to the estoppel issues, there is no need for me to determine this alternate issue.

Whether there was a consequential condition to the lumbar spine as a result of the accepted injury

Due to the findings made in relation to the estoppel issues, there is no need for me to determine this substantive issue.

Mr Saade’s claim for compensation under section 66 of the 1987 Act

The repeal of section 65(3) of the 1987 Act, allows Members of the Commission to make determinations of permanent impairment.
Neither party submitted that this was an appropriate case for me to determine Mr Saade’s entitlement to lump sum compensation without referral to a Medical Assessor. Nor was I prepared to do so had they made such a submission.
In the circumstances, I am satisfied that it is appropriate to remit the matter to the President for referral to a Medical Assessor to assess Mr Saade’s whole person impairment in respect of the left lower extremity (left foot, left ankle and left heel) and the spine (the lumbar spine).

CONCLUSION

My determination and orders are set out in the Certificate of Determination attached to this Statement of Reasons.

[2021] NSWPIC 185

16 June 2021