Scalabrini Village Limited v Sanders
[2024] NSWPICPD 36
•19 June 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Scalabrini Village Limited v Sanders [2024] NSWPICPD 36 |
APPELLANT: | Scalabrini Village Limited |
RESPONDENT: | Ricarda Sanders |
INSURER: | Catholic Church Insurances Limited |
FILE NUMBER: | A1-W637/23 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 19 June 2024 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 12 July 2023 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – Application of the principles of Anshun estoppel – whether claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 is estopped by failure to plead the claim in earlier proceedings – Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589, Geary v UPS Pty Ltd [2021] NSWPICPD 47, Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190 applied – deemed date of injury for a disease pursuant to ss 4(b), 15 and 16 of the Workers Compensation Act 1987 – Stone v Stannard Brothers Launch ServicesPtyLtd [2004] NSWCA 277 and Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 considered |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr L Robison, counsel | |
| Hall & Wilcox | |
| Respondent: | |
| Mr C Tanner, counsel | |
| Fern Lawyers | |
DECISION UNDER APPEAL: | Sanders v Scalabrini Village Ltd [2023] NSWPIC 338 |
MEMBER: | Mr G Whiffin |
DATE OF MEMBER’S DECISION: | 12 July 2023 |
INTRODUCTION AND BACKGROUND
Ms Ricarda Sanders, the respondent, was employed by Scalabrini Village Limited, the appellant, as a registered nurse. The respondent commenced employment on 8 January 2018 and engaged in nursing duties caring for elderly residents. She sustained a psychological injury arising from several alleged workplace incidents during the course of her employment between 2019 and 2020, including being accused of failing to properly follow workplace methods around drug administration and staffing.[1] Her injury is considered a disease injury, pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act). After suffering a panic attack requiring admission to hospital, the respondent ceased work on 18 May 2020, and has not returned. For the purposes of this decision, it is not necessary to repeat the detail of those incidents, as they are not disputed in these proceedings.
[1] Respondent’s statement dated 14 May 2021, Application to Resolve a Dispute (ARD), p 3.
The respondent made a claim for workers compensation by completing a Worker’s Injury Claim Form on 16 June 2020.[2] Liability was initially accepted by the appellant on a provisional basis, but subsequently disputed. The respondent brought three applications before the Personal Injury Commission, the first commencing in 2021 with matter number W1738/21, claiming weekly compensation and medical expenses pursuant to ss 33 and 60 of the 1987 Act (the 2021 proceedings). In those proceedings, the dispute was resolved by consent orders made on 3 September 2021, which included a number of notations in respect of the respondent’s recovery from her psychological injury and an agreement to resign from her employment. Prior to the end of those proceedings, on 10 June 2021, the respondent emailed the appellant, attaching a claim for permanent impairment (26%) and a supporting medical opinion.[3] This s 66 claim was not heard during the 2021 proceedings; rather, it was re-claimed in 2022 based on updated medicine but was disputed by the appellant on the basis the respondent should be estopped from pursing it. A second set of proceedings commenced in or around 2022 (matter number W2807/22) but discontinued. A third set of proceedings were commenced in 2023, with matter number W637/23 (the 2023 proceedings). The 2023 proceedings are before me on appeal.
[2] ARD, pp 32–38.
[3] Appellant’s Application to Admit Late Documents (AALD) dated 4 May 2023.
The 2023 proceedings were heard by Member Whiffin on 19 April 2023. As the dispute was unable to be resolved, it proceeded to arbitration to determine two agreed issues; whether the respondent was estopped from pursuing her claim for lump sum compensation pursuant to s 66 of the 1987 Act by the principles in Port of Melbourne Authority v Anshun Pty Ltd,[4] and if not, what the deemed date of injury was for the purposes of referral of the s 66 claim to a Medical Assessor for assessment.[5] Following both oral and written submissions, the Member issued a Certificate of Determination dated 12 July 2023 in which he determined that the respondent was not estopped from pursuing her lump sum claim, and found the deemed date of injury to be 10 June 2021, the date the claim for lump sum compensation was made on the appellant.
[4] [1981] HCA 45; 147 CLR 589 (Anshun).
[5] Sanders v Scalabrini Village Ltd [2023] NSWPIC 338 (reasons), [8].
On appeal, the appellant alleges that the Member’s decision on both these issues is infected with error through a failure to correctly apply the test in Anshun, and a failure to apply the deeming provisions under the 1987 Act.
THE EVIDENCE
Given that this matter involves Anshun estoppel, it will require a consideration of what transpired between the parties with respect to the claim(s) made, and disputed or resolved in the lead up to and during the 2021 and 2023 proceedings. This is necessary in order to ascertain whether it was unreasonable for the respondent not to have raised the claim for lump sum compensation in the earlier proceedings (in simple terms). In the 2023 proceedings, the appellant sought a Direction from the Member ordering the respondent produce her solicitor’s file, including all legal advice and file notes, all of which were produced in various Applications to Admit Late Documents and considered by the Member.[6] I will not repeat these in detail, however the effect of the legal advices was that a deliberate decision was made, on advice, to pursue the weekly compensation and medical expenses claims separately to the claim for lump sum compensation pursuant to s 66, and a belief held that the resolution of the weekly compensation and medical expenses claims would not estop her from later claiming lump sum compensation. An affidavit from the respondent’s solicitor was also in evidence in the ARD (the Affidavit).[7]
[6] Reasons, [14]–[17].
[7] ARD, pp 30–31. The Affidavit appears to be undated, but is said in the ARD list of supporting documents to be dated 6 July 2022.
For ease of reference, I set out below the evidence which is germane to the matters that I must consider on appeal in each of the two separate proceedings.
The 2021 proceedings – weekly compensation and medical expenses
The respondent’s injury was formally notified to the appellant by way of the Workers Injury Claim form of 16 June 2020, at the direction of her solicitor.[8] In this form, the date of injury was recorded to be 18 May 2020, which was also noted to be the date the respondent ceased work. The injury was recorded to be due to the “nature and conditions” of employment, causing the psychological condition of anxiety disorder. In this form, the respondent provided details of her wages and treatment providers.
[8] ARD, p 32.
According to the Affidavit, her claim was denied by way of a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) (s 78 notice) on 1 December 2020. This s 78 notice was not supplied in the proceedings before the Member which is now on appeal before me, but the Affidavit indicates that the issues in dispute included injury, substantial contributing factor, a defence to the psychological injury pursuant to s 11A of the 1987 Act, incapacity for work and whether medical treatment was reasonable necessary. There was no issue raised as to the absence of this s 78 notice and I can accept that a dispute was raised to the effect of the matters ventilated in the 2021 proceedings, which I refer to below.[9]
[9] Paragraph [4] of the Affidavit states that the s 78 notice of 1 December 2020 is annexed and marked “B”. The document annexed to the Affidavit in the documents before me as Annexure “B” is a 78 notice dated 23 February 2022.
After this s 78 notice was issued, on 18 February 2021, the respondent was independently medically examined by Dr Aman Suman, psychiatrist. The doctor provided two separate medical reports to the respondent’s solicitors, both dated 9 March 2021, one of which provided a substantive opinion on the respondent’s condition, and the other of which provided an assessment of permanent impairment.[10] Dr Suman’s substantive report provided a psychiatric diagnosis of major depressive disorder arising from events in the workplace since May 2020, impacting her ability to engage in any gainful employment. The doctor recommended continuing treatment by way of therapy and antidepressants. Dr Suman assessed the respondent with 22% whole person impairment (WPI) in the separate report.
[10] ARD, pp 92–104.
On 8 April 2021, the respondent sought a review of the appellant’s dispute, but on 22 April 2021, another s 78 notice was issued.[11] Without the benefit of these documents before me, I cannot ascertain the grounds on which a review was sought, the evidence attached to the request, or the exact grounds for maintaining the dispute, but I can safely assume that the dispute led to the lodgement of an ARD on 14 May 2021 for weekly compensation pursuant to s 37 of the 1987 Act and medical expenses for past and future therapy from 15 December 2020.[12] According to the index of this ARD, a medical report of Dr Aman Suman was attached as a supporting document, alongside a range of other medical evidence.
[11] Again, these documents are not in evidence but have been recorded in the index of the Reply to ARD for the 2021 proceedings. The index to that Reply, without attachments, has been supplied in the Reply to ARD for the 2023 proceedings.
[12] Reply to ARD, p 2.
In this ARD, injury was pleaded as “major depressive disorder”. The pleaded “date of injury” was 18 May 2020, and the pleaded “date of compensation claim” was 16 June 2020. The injury description was as follows:
“The nature and conditions of the worker’s employment resulted in a psychological injury. The worker has been bullied and harassed over a period of time and she was unreasonably treated and managed by my [sic] employer. We refer you to the enclosed statement of worker for further details in respect of same.”[13]
[13] Page 6 of ARD for 2021 proceedings, within the Reply to ARD for the 2023 proceedings, p 6.
On page 2 of its Reply to ARD dated 7 June 2021, the appellant confirmed the disputes as per the purported dispute notices issued, and clarified the dispute before the Commission as follows:
“Injury
1 The [respondent] does not suffer a psychological or psychiatric injury; sections 11A(3) and 11A(7) of the Workers Compensation Act 1987 (NSW).
1[sic] The [respondent] did not sustain an injury at all or as alleged; section 4 of the Workers Compensation Act 1987 (NSW).
2 The allegations of injury raised by the [respondent] were not real events or did not actually occur.
3 Employment was not the main contributing factor to the contraction, aggravation, acceleration, exacerbation or deterioration of a disease as required by section 4(b) of the Workers Compensation Act 1987 (NSW), alternatively, employment was not a substantial contributing factor to the injury sustained by the [respondent], as required by section 9A of the Workers Compensation Act 1987 (NSW).
4 The [respondent’s] psychological injury (which is denied) was wholly or predominantly caused by the reasonable actions of the [appellant] with respect to performance appraisal and discipline, and as such the [respondent] has no entitlement to compensation; section 11A of the Workers Compensation Act 1987 (NSW).
Weeklies
5 The [respondent] is not incapacitated at all or as alleged.
6 Any incapacity suffered by the [respondent] does not result from any injury at work; section 33 of the Workers Compensation Act 1987.
7 The [appellant] disputes the rate of weekly compensation claimed by the [respondent].
Section 60 expenses
8 Section 60 expenses are not reasonably necessary or do not relate to the injury relied on.”[14]
[14] Reply to ARD of 2023 proceedings, p 11.
There was contest between the parties before Member Whiffin as to what transpired shortly after lodgement of the 2021 proceedings in respect of the making of a s 66 claim.[15] Only the substantive report of Dr Suman was attached to the ARD; the report containing the assessment of WPI was omitted. While the Affidavit refers to the respondent electing not to make a s 66 claim at that time due to fear it would delay the current proceedings (which was not accepted by the Member); evidence filed by the respondent indicates that an email was sent by Ms Andra Youkhana, lawyer for the respondent, to the appellant’s insurer on 10 June 2021 at 9.29 am attaching a Permanent Impairment Claim Form and the medico-legal report of Dr Suman dated 9 March 2021. In this email, it states: “Please advise if you agree with Dr Suman’s opinion in respect of the WPI threshold or provides [sic] us with your options for an IME”.[16] It appears an automatic out of office reply was sent from the addressee at 9.33 am on that day.[17]
[15] There are two permanent impairment claim forms, one dated 8 June 2021 at pp 19–21 of the appellant’s AALD dated 4 May 2023, and one dated 9 November 2021 at pp 53–55 of the ARD.
[16] Appellant’s AALD dated 4 May 2023, p 22.
[17] Respondent’s AALD dated 29 May 2024, p 2.
This s 66 claim did not end up being raised during the 2021 proceedings, presumably based on advice from counsel that the respondent refrain from following up a response from the appellant until resolution of the current proceedings before the Commission. This is evidenced in a legal file note taken by the respondent’s solicitor following an adjourned conciliation/arbitration before Member Perrignon on 9 July 2021.[18] In the days following this conciliation/arbitration, a file note by the respondent’s solicitor recorded that on 14 July 2021 the respondent conferred with her solicitor and pressed for a lump sum claim but was advised that she “can’t simply issue court proceedings seeking lump sum. We have to establish that they are liable first.”[19] This is confirmed in an email to the respondent of the same date, noting that the current claim was for weekly payments and medical expenses, and she must “overcome the defence raised by [the appellant]” in order to bring the s 66 claim.[20]
[18] Appellant’s AALD dated 4 May 2024, p 23.
[19] Appellant’s AALD dated 4 May 2024, p 25.
[20] Appellant’s AALD dated 4 May 2024, p 27.
Protracted negotiations ensued between the parties in an effort to resolve the claim before appearing before the Commission again, as evidenced in various email exchanges. The matter was listed for conference on 3 September 2021, and resolved by way of Consent Orders - Certificate of Determination in the following terms:
“By and with the consent of the parties, the Commission determines:
1. Grant leave to amend the Application to Resolve a Dispute to plead 18 May 2020 (deemed date) as the date of injury.
2. The [respondent] sustained psychological injury as alleged, and as defined in s 4(b)(ii) of the Workers Compensation Act 1987.
3. Award of weekly compensation at the rate of $1,200 per week in respect of the period 16 December 2020 to 4 May 2021 (agreed to total $24,000), pursuant to s 37 of the Workers Compensation Act 1987, with an award for the [appellant] thereafter in respect of the claim for weekly compensation.
4. Pursuant to section 60, the [appellant] is to pay the [respondent’s] reasonably necessary medical and related treatment expenses incurred up to 30 March 2021, up to a maximum total of $3,000, with an award for the [appellant] otherwise and thereafter in respect of the claim pursuant to section 60.
Notations
The Commission notes as follows.
A. The [respondent] agrees and admits that she has recovered from her injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a psychological or psychiatric disorder and no longer suffers from the effects of that injury.
B. The [respondent] agrees and admits that upon payment of the amounts referred to in orders 3 and 4 above, she will have received all of her entitlements to weekly compensation and medical and related treatment expenses pursuant to the Workers Compensation Act 1987.
C. The [respondent] agrees and admits that she suffers no ongoing economic incapacity and requires no further medical treatment as a result of her injury.
D. On or before 10 September 2021, the [respondent] agrees to tender her resignation of employment with the [appellant], effective from the date of these Consent Orders.”
Upon entering into this settlement, the respondent signed a solicitor’s agreement regarding its terms, which stated at [9] and [10]:
“9. I understand that this offer will be in full and final settlement of my weekly compensation and medical expenses. I do not have a continuing entitlement to those benefits nor has there been a decision to accept liability for ongoing payments or treatment.
10. I understand that the above offer indicates that the insurer concedes injury and liability for same. I understand that this allows me to be assessed for Whole Person Impairment and bring a statutory lump sum claim.”[21]
[21] Appellant’s AALD dated 4 May 2024, pp 39–40.
It appears at all times during the 2021 proceedings, the position of the respondent’s solicitor and counsel was that there would be no impediment in the respondent bringing forth the claim for lump sum compensation pursuant to s 66 after resolution of the 2021 proceedings. In fact, the post settlement advice from the respondent’s counsel said as follows in respect of the notations within the consent orders:
“The notations included an agreed admission that the [respondent] had recovered from her injury. I confirm that the notation does not create an estoppel or prevent an assessment of whole person impairment. The admission is at most a piece of evidence to be weighed up with other pieces of evidence. The current medical evidence is all to the effect that the effects of the injury are continuing. An approved medical specialist will inevitably prefer the medical expert evidence and opinions over a notation made as part of a settlement of weekly compensation.”[22]
[22] Appellant’s AALD dated 4 May 2024, pp 41–42.
The 2023 proceedings – lump sum compensation
Following resolution of the 2021 proceedings, on 10 November 2021 at 4.52 pm, the respondent’s solicitor sent another email to the appellant’s insurer, attaching the Permanent Impairment Claim Form and medical reports of Dr Suman. They asked the insurer to confirm whether it agreed with Dr Suman’s assessment and sought a decision within 60 days.[23]
[23] Appellant’s AALD dated 4 May 2024, p 48.
There was some back and forth between the insurer and respondent’s solicitor as to the whereabouts of the claim. On 31 January 2022, the insurer sought the documents supporting the s 66 claim. Upon receipt, on 1 February 2022, the insurer emailed the respondent’s solicitor indicating that the Certificate of Determination – Consent Orders indicated that the “matter was resolved and the injury was conceded”. The respondent’s solicitor responded by email that the “consent orders do not relate to a permanent impairment claim” and thus pressed the claim for s 66.[24]
[24] Reply to ARD, p 29.
On 23 February 2022, a s 78 notice was issued by the appellant on the basis that the respondent was “precluded from bringing a claim for lump sum compensation, and litigating such a claim as the evidence upon which you rely was available, and not disclosed, in earlier proceedings”. This was reference to the reports of Dr Suman, which were available at the time of the 2021 proceedings. The appellant relied on Anshun estoppel “as applied in Fourmeninapub Pty Ltd v Booth [2019] NSWWCCPD 25”, and res judicata estoppel on the basis that her workers compensation claim had been decided in the Certificate of Determination – Consent Orders of 3 September 2021 which asserted that she had recovered from the effects of her injury.[25]
[25] ARD, pp 40–44.
Proceedings were re-commenced in the Commission, which I presume sought to resolve the dispute raised in this s 78 notice. I cannot confirm with certainty the exact subject matter of those proceedings as the pleadings were not tendered into evidence in the current matter, bar for an Application to Admit Late Documents form dated 6 July 2022, without attachments. These proceedings were discontinued on 8 July 2022 before Member Wynyard (matter number W2807/22).
Shortly thereafter, the respondent was re-examined by Dr Suman on 22 July 2022, who provided a report of the same date. Dr Suman confirmed on-going major depressive disorder which had not improved since his assessment a year prior. The respondent remained unfit for any form of employment. However there was a change in the assessment of WPI of the respondent; Dr Suman assessed 23% WPI, adding 1% WPI to his original assessment under cl 1.32 of the Guidelines to the Evaluation of Permanent Impairment due to her response to treatment.[26]
[26] ARD, pp 105–114.
The respondent’s solicitor served this report on the appellant’s legal representative under cover of letter dated 6 September 2022, claiming 23% WPI in accordance with Dr Suman’s reassessment and putting the appellant on notice of an intention to make a claim for Work Injury Damages should the 15% WPI threshold be reached.[27]
[27] ARD, p 65.
The appellant arranged for the respondent to be independently medically examined by Dr John Roberts, consultant psychiatrist. Dr Roberts was briefed by the appellant on the 2021 consent orders, specifically noting that the respondent agreed to the recovery of her psychiatric injury. Based on the information provided by the appellant and his observations of the respondent’s fluctuating presentation at examination, Dr Roberts reported on 27 December 2022 that the respondent was either dishonest, or had significant cognitive dysfunction. Dr Roberts concluded that the respondent had not suffered from any diagnosable psychiatric condition arising from her employment and disagreed with Dr Suman. He did not consider the respondent’s presentation warranted an assessment of impairment.[28]
[28] Reply to ARD, p 30.
Another s 78 notice was issued on 1 February 2023, again disputing the s 66 claim for lump sum compensation on the basis of res judicata estoppel and Anshun estoppel in light of the 2021 consent orders, and failure of the respondent to raise the claim during those proceedings. The notice referred to service of the s 66 claim on 10 November 2021 and 17 January 2021 to a generic email address, which was thus not received until further copies were provided to the appellant on 1 February 2022. The notice also relied on the medical opinion of Dr Roberts to dispute that the respondent was suffering from a genuine, continuing, psychiatric condition.[29]
[29] ARD, p 61.
On the same day, 1 February 2023, the respondent filed an ARD in the Commission, claiming 23% WPI with respect to a psychiatric injury. The ARD pleaded injury as a “disease” with a deemed date of 18 May 2020, “due to the toxic nature and conditions of the workplace” as outlined in the respondent’s statement contained in the ARD. The date of injury pleaded by the respondent (with respect to the s 66 claim) was amended to 6 September 2022 (for determination) during the conciliation/arbitration on 19 April 2023. The principle of res judicata estoppel was dropped, and it was agreed by the parties that the respondent was suffering from injury in the nature of a disease pursuant to s 4(b)(ii) of the 1987 Act but the appellant maintained that Anshun estoppel prevented her from pursuing the s 66 claim.[30]
[30] Reasons, [9]–[17].
THE MEMBER’S REASONS
Both parties made submissions as to the applicability of Anshun with reference to several authorities including Geary v UPS Pty Limited,[31] Secretary, Department of Communities and Justice v Miller & Anor (No 5),[32] Woolstar Pty Limited v Wood,[33] Fourmeninapub Pty Limited v Booth,[34] Habib v Radio 2UE Sydney Pty Limited[35] and Thompson v George Weston Foods Ltd.[36]
[31] [2021] NSWPICPD 47 (Geary).
[32] [2020] NSWWCCPD 38 (Miller No 5).
[33] [2022] NSWPICPD 25 (Wood).
[34] [2019] NSWWCCPD 25 (Fourmeninapub).
[35] [2009] NSWCA 231 (Habib).
[36] [1990] NSWCC 18 (Thompson).
The appellant argued that the claim for lump sum compensation should have been agitated in the 2021 proceedings, and that it was unreasonable for the respondent not to rely on the medical evidence which was in its possession or to bring the claim at that time.[37] The appellant described the current circumstances as:
“a textbook example of an Anshun case, particularly because there is a deliberate severance of the claim which is litigated where a party has evidence available for deployment of all aspects of her case, where she had the benefit of legal advice, and where she evidently makes a conscious decision to resolve only part of the claims which were available to her, and then, to aggravate the unfairness to the [appellant], enters into consent orders making notations, the clear imputation of which is that the matter is over”.[38]
[37] Reasons, [49].
[38] Reasons, [50].
The appellant argued that the 2021 and 2023 proceedings, when compared, did not indicate a change in the respondent’s condition, with the description of injury being essentially the same, and the addition of 1% WPI being in respect of treatment – not a change in actual impairment.
The appellant was critical of the Affidavit and indicated that severance of the s 66 claim was a practice which ought to be discouraged and took unfair advantage of the appellant. It was submitted that the admissions made in the 2021 consent orders were to “lure” the appellant into settlement in ignorance of a pending larger claim. In the context of Anshun, it was argued that the actions needed to be looked at in the context of the reasonableness of the respondent “splitting” her claims, where there was evidence that she was able to seek more than one form of compensation. When questioned as to why it was unreasonable for the s 66 claim to be omitted in the 2021 proceedings when the “necessary pre-litigation procedures under the 1987 Act” had not commenced, the appellant argued that “the test is actually a matter of raising claims, not litigating claims”.[39] The concept of making all claims for compensation simultaneously arose not from legislation, but the common law principle of Anshun.[40]
[39] Reasons, [54]–[58].
[40] Reasons, [61].
The appellant submitted as follows in respect of the legal advice produced by the respondent:
“The inescapable conclusion from the above is that the [respondent], with the benefit of legal advice from solicitor and counsel, made the conscious decision to settle a weak case on liability on a compromised basis, to, as it were lock in, liability, only to return with a lump sum claim and intended work injury damages claim which she knew, as of that settlement, was available to her but did not ‘raise’. It must be borne in mind that the test in Anshun is not whether a party should have sued for a right in the prior action, but whether she raised such an action. See, inter alia, para [9] of the joint judgment of Gibbs CJ, Mason and Aikin JJ.”[41]
[41] Appellant’s written submissions of 5 May 2023, repeated at reasons [59].
It argued that the s 66 claim made by email on 10 June 2021 was a “red herring” as it was not disclosed or lodged in the 2021 proceedings or forwarded to the appellant’s solicitors, that the appellant and its insurer were only made aware of it in the 2023 proceedings, and that sending an email to make a claim “would still not have had the effect of having raised the claim in the proceedings”.[42] In respect of the deemed date of injury, the appellant relied on Stone v Stannard Bros Launch Services Pty Ltd[43] to argue that the first date of incapacity for work (18 May 2020) is the deemed date of injury pursuant to s 16(1)(a) of the 1987 Act.[44]
[42] Reasons, [62].
[43] [2004] NSWCA 277 (Stone).
[44] Reasons, [63].
The respondent submitted that in accordance with Fourmeninapub, Anshun estoppel would only be relevant if she had unreasonably refrained from including her s 66 claim in the 2021 proceedings, but, as the claim had not been made at the time of commencement, she could not have included it, nor was she under any legislative obligation to make the claim before commencing the proceedings. The respondent said that the Commission thus would not have had jurisdiction to entertain the claim as a dispute had not been issued. The respondent argued that it was “commonplace” for such practice to occur, whereby claims for permanent impairment were brought later, noting that the extent of impairment does not affect the primary issue of injury or incapacity or need for medical treatment. It could not be suggested that “it is incumbent on a worker to bring all claims simultaneously”.[45]
[45] Reasons, [65].
The respondent maintained that it was inconceivable for a person with experience in the workers compensation jurisdiction to not believe that at some future point, a worker would exercise their right to claim lump sum compensation in such circumstances. The respondent argued that the claim was made by the email of 10 June 2021, and thus the appellant would have been aware of the claim and the report at the time of settlement of the 2021 proceedings. Whilst the appellant argued that it was ignorant of this email due to an out of office, the respondent argued that this was contrary to the appellant’s obligation to responsibly manage the administration and claims process, and such absence could not alter the fact a claim was duly made.[46]
[46] Reasons, [75]–[78].
The respondent rejected the argument that she was “splitting” her case as this did not appreciate the distinct forms of compensation available, and the prohibition of only bringing one s 66 claim meant it was prudent that it was brought at a time her impairment had reached maximum improvement. Nor was there an obligation that she bring her other claims for weekly compensation and medical expenses forward when the s 66 claim matured.[47]
[47] Reasons, [67].
The respondent refuted that she had, in some way, deceived the appellant by settling the first proceedings, with there being no evidence as to the appellant’s thought processes at the time. She argued that the appellant should have been aware of the prospect of a s 66 claim, as a separate claim she had the right to enforce, and that both parties were well aware that the 2021 consent orders were for the purpose of finalising any further claim for weekly compensation and medical treatment; the prospective lump sum claim was not addressed. The respondent argued that the nondisclosure of Dr Suman’s WPI assessment did not have bearing on Anshun estoppel as she was not bound to make a claim at the same time.[48]
[48] Reasons, [68]–[69].
With reference to Fourmeninapub, the respondent made the following points:
“(a) for Anshun estoppel to operate, the claim pursuant to s 66 of the 1987 Act would need to be so relevant to the subject matter of the first proceedings that it would have been unreasonable not to rely upon it in those proceedings – in fact, the level of the [respondent’s] whole person impairment was ‘totally irrelevant’ to the claims brought in the first proceedings;
(b) for Anshun estoppel to operate, it needed to be expected that the claim pursuant to s 66 of the 1987 Act would be raised in order to enable the relevant issues to be determined in one proceedings - in fact, as the level of the [respondent’s] whole person impairment was a matter for one of the Commission’s Medical Assessors, it would not have been able to be determined at the time when the first proceedings were resolved, and
(c) there was no possibility of a conflict between the orders sought in the current proceedings and the orders made by way of the Certificate of Determination in the first proceedings.”[49]
[49] Reasons, [70].
With reference to Habib, the respondent argued that a technical approach should be avoided with estoppel being a serious step and power not to be exercised “without scrupulous examination of all the circumstances”, and estopping the respondent was contradictory to the beneficial nature of workers compensation legislation. With reference to Wood, it was argued that Anshun estoppel operated to prevent parties from opening up the “same subject” of litigation – and in the 2021 proceedings, incapacity and treatment were litigated as different to permanent impairment.[50]
[50] Reasons, [71]–[72].
The respondent concluded that the appellant’s belief that the 2021 consent orders had finally and conclusively resolved her rights was misconceived, contrary to common experience, and “plainly spurious” noting that the insurer should have known of her intention to claim s 66 in June 2021.[51]
[51] Reasons, [79].
In determining the matter, Member Whiffin referred to key points of authority in Anshun, Habib and Thompson. In Thompson, McGrath CJ did not see an issue with a claimant bringing a claim for one benefit in one set of proceedings and another benefit in later proceedings. In that matter, his Honour specifically held that hearing a claim on original liability would not subsequently prevent a claim under the Table of Maims (noting it may not have crystalised or if it had, it would not be a bar to a subsequent determination). The Member considered his Honour’s findings helpful as with such an application, the respondent would only have been estopped had there been a finding against her on the issue of injury in the first proceedings.[52]
[52] Reasons, [80]–[84].
The Member also referred to extracts from Bruce v Grocon Limited,[53] Miller No 5, Fourmeninapub and lastly, Geary, where I had determined that there was no error in finding a claimant was estopped in claiming lump sum compensation but held it was possible for various claims to be pursued in different proceedings without engaging Anshun; noting Anshun existed for deployment in appropriate cases pending an evaluative exercise of the facts as contemplated by Habib.
[53] [1995] NSWCC 10.
The Member accepted that the respondent was not able to include a s 66 claim at lodgement of the 2021 proceedings, as the claim had not been made, nor had it been determined or disputed as required under ss 289(3) of the 1998 Act to give rise to a dispute that could be heard by the Commission. It was therefore not unreasonable for the respondent not to have included it in those proceedings, as it would have been misconceived and subject to dismissal (Fourmeninapub).[54]
[54] Reasons, [90]–[93].
The Member acknowledged that the respondent could have waited to commence the 2021 proceedings to include the claim for s 66 once she had properly made it and it had been determined within the timeframes stipulated by s 281 of the 1998 Act; but she chose not to wait, and the Member did not think it was unreasonable to adopt this course of action. The Member observed that the respondent had not been in receipt of any weekly or medical entitlements since December 2020, and held that “she was entitled to have liability for those entitlements determined by the Commission without waiting at least two months (but in many cases four months) for any claim of hers pursuant to s 66 of the 1987 act to be determined by the [appellant] …”.[55]
[55] Reasons, [94]–[95].
The Member also noted that the respondent’s caution in not proceeding with the s 66 claim until she was reassessed by Dr Suman was justified noting the doctor’s latest report assessed an additional 1% WPI, and in the context of being limited to only one claim pursuant to s 66(1A). The Member rejected the appellant’s submission that Dr Suman’s further WPI assessment lacked significance, noting it would have the effect allowing her to claim more monetary compensation.[56]
[56] Reasons, [97]–[98].
The Member accepted the respondent’s submissions in applying Fourmeninapub which I have repeated above at [37]. The Member held that there is no possibility of conflict and inconsistency arising between the 2021 consent orders and the orders currently sought, in the ways contemplated by the authorities. Different entitlements are being claimed, and the notations could be considered by the Commission’s Medical Assessor in assessing WPI. The Member held that the s 66 claim was of “little relevance to the subject matter of the first proceedings”, this being a requirement for Anshun estoppel. The claim for weeklies required consideration of injury and incapacity/medical treatment, and while evidence as to the respondent’s WPI is “not totally irrelevant to those considerations”, the evidence in respect of WPI would have been given minor weight. Accordingly, the Member concluded that the “evidence as to the level of impairment could not be considered to be so ‘relevant to the subject matter of the first action that it would have been unreasonable not to rely on it’, as is stated to be required in Anshun.”[57]
[57] Reasons, [99]–[101].
Member Whiffin also rejected the appellant’s argument that even if it was not unreasonable for the respondent not to plead the s 66 claim at the commencement of the 2021 proceedings, the respondent still should have raised the claim during proceedings. This argument was problematic as there was no explanation as to how such a claim could be raised during the 2021 proceedings; not only was there absence of evidence from the appellant as to what transpired during resolution of the first proceedings, but the appellant should have been aware of the claim made by email on the insurer on 10 June 2021 which was responded to with an out of office email on behalf of a case manager. There was no evidence tendered by the appellant as to action taken with the claim when the case manager returned, or procedure adopted by the insurer to deal with emails received by persons who are out of office. The Member said the insurer should have been aware that this claim was validly and correctly made by email, and it was incumbent on organisations such as the insurer to have procedures in place for such circumstances. The Member referred to the s 78 notice of 23 February 2022 wherein it stipulated that correspondence must be sent to individual case managers (as had occurred). The Member thus held that the claim for s 66 lump sum compensation had been validly made, and raised with the insurer on 10 June 2021 prior to resolution of the 2021 proceedings. The appellant’s argument that such a claim had not been “officially raised” during the 2021 proceedings was an “overly technical approach” to Anshun, contrary to Habib. There was no evidence which supported that the appellant was not aware of the claim, or to its thought processes at the resolution of the 2021 proceedings.[58]
[58] Reasons, [102]–[112].
The Member rejected the appellant’s proposition that it believed the terms of the 2021 consent orders intended to resolve the totality of all entitlements when it only dealt with two of the three (weekly compensation and medical expenses). The Member rejected the proposition that the appellant was “lured” or “deceived” into resolution of the 2021 proceedings without contemplating this resolution did not involve a s 66 claim. It was difficult for the Member to accept that the appellant did not contemplate the making of a s 66 claim and there was no obligation on the respondent to remind the appellant of such an entitlement. While the Member accepted there to be some merit to the complaint that Dr Suman’s assessment of WPI was not attached to the ARD in the 2021 proceedings, this report was in the appellant’s possession when it was served on 10 June 2021. The Member held that it was not inappropriate to sever the s 66 claim noting it had not been made or determined at commencement of proceedings; and that the respondent was justified in her approach to “lock in liability” in the 2021 proceedings as it was unavoidable that a determination would be made in those proceedings if they did not resolve.[59]
[59] Reasons, [113]–[118].
In conclusion, the Member was not satisfied that the appellant had overcome its burden of proving the respondent’s failure to bring her s 66 claim was unreasonable or that there was no valid reason in her not doing so. It had failed to prove the necessary elements of Anshun as outlined in the authorities.[60]
[60] Reasons, [119].
In determining the date of injury, the Member acknowledged that there could be more than one deemed date of injury for diseases, depending on the claim made.[61] The date of injury in the 2021 consent orders was 18 May 2020, consistent with the date the respondent ceased employment and her first date of incapacity (s 16(1)(a)(i) of the 1987 Act), but this should be different to the date of injury for the s 66 claim (applying Stone). The Member determined the date of injury for the purposes of s 66 was the date the first s 66 claim was made by the respondent on the appellant’s insurer, on 10 June 2021.[62]
[61] Stone; Alto Ford Pty Limited v Antaw [1999] NSWCA 234 (Antaw).
[62] Reasons [120]–[129].
Accordingly, the Member found in favour of the respondent, and the Certificate of Determination issued on 12 July 2023 relevantly records:
“The Commission determines:
1. The [respondent] is not estopped from pursuing her claim before the Personal Injury Commission (Commission) for a lump sum pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in relation to her psychological injury.
2. The deemed date of injury in relation to the [respondent’s] claim for a lump sum pursuant to s 66 of the 1987 Act in relation to her psychological injury is 10 June 2021.
The Commission orders:
1. I remit the matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
(a) date of injury: 10 June 2021 (deemed);
(b) body systems/parts: psychiatric and psychological disorders;
(c) method of assessment: whole person impairment, and
(d) type of injury: disease injury pursuant to s 4(b)(ii) of the 1987 Act - being the aggravation, acceleration, exacerbation or deterioration in the course of employment of a disease, where the employment is the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.
2. The documents to be reviewed by the Medical Assessor are:
(a) the Application to Resolve a Dispute and attached documents;
(b) the [appellant’s] Reply and attached documents;
(c) the [appellant’s] Application to Admit Late Documents dated 4 May 2023 and attached documents;
(d) the [appellant’s] Application to Admit Late Documents dated 26 May 2023 and attached documents;
(e) the [responednt’s] Application to Admit Late Documents dated 29 May 2023 and attached documents, and
(f) this Certificate of Determination together with its accompanying reasons.”
GROUNDS OF APPEAL
The appellant alleges that the Member committed two errors of law in determining the dispute. They are:
Ground One – Failure to apply the test in Anshun (error of law), and
Ground Two – Failure to correctly apply the deeming provision in the Workers Compensation Act 1987 so as to determine the date of injury (error of law).
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
Both parties have indicated that they are content for the matter to be heard ‘on the papers’.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
LEGISLATION
Section 15(1) of the 1987 Act provides:
“15 Diseases of gradual process—employer liable, date of injury etc (cf former ss 7(4), (4C), (5), 16(1A))
(1) If an injury is a disease which is of such a nature as to be contracted by a gradual process—
(a) the injury shall, for the purposes of this Act, be deemed to have happened—
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due.”
Section 16(1) of the 1987 Act provides:
“16 Aggravation etc of diseases—employer liable, date of injury etc (cf former ss 7(4A), (5), 16(1A))
(1) If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease—
(a) the injury shall, for the purposes of this Act, be deemed to have happened—
(i) at the time of the worker’s death or incapacity, or
(ii) if death or incapacity has not resulted from the injury—at the time the worker makes a claim for compensation with respect to the injury, and
(b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration.”
Section 43 of the 2020 Act provides:
“43 Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
SOME PRINCIPLES ABOUT APPEALS UNDER SECTION 352 OF THE 1998 ACT
An appeal under s 352 of the 1998 Act is “limited to a determination of whether the decision appealed against was or was not affected by error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”[63]
[63] Section 352(5) of the 1998 Act.
This approach has been discussed in Raulston v Toll Pty Ltd[64] and this has been consistently the approach to the consideration of appeals under s 352 of the 1998 Act. In terms of this appeal, the remarks at [19]–[20] in Raulston have relevance and I set them out in full:
[64] [2011] NSWWCCPD 25 (Raulston).
“19. First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant … :
(a) [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c) It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.
20. The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”
SOME PRINCIPLES ABOUT ANSHUN ESTOPPEL
The Court of Appeal in Miller v Secretary, Department of Communities and Justice[65] was called upon to settle the question about the applicability or not of the doctrine of Anshun estoppel to the legislative schemes constituted by the 1987 and 1998 Acts. The Court unanimously held that Anshun principles did apply to the legislative schemes.[66]
[65] [2022] NSWCA 190 (23 September 2022) (Miller No 10).
[66] Miller No 10, [127] per Ward P; [134]–[135] per Brereton JA.
For the purposes of this matter, her Honour the President’s remarks at [118]–[120] have resonance and I set these passages out in full:
“118. Relevantly, s 261 of the 1998 Act provides as follows:
‘261 Time within which claim for compensation must be made
(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2) If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3) For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
...’
119. The appellants rely on s 261(3) to demonstrate the incompatibility of the legislative scheme of the 1998 Act with the principle of Anshun estoppel, insofar as Anshun requires parties to bring forward their whole case, yet s 261(3) contemplates that multiple claims for compensation may be made at different times in respect of the injury or death concerned. While it may be accepted that there exists some tension between the principle of Anshun estoppel and s 261(3), this does not in my opinion engender wholesale inconsistency. This is so in light of the consistent application of Anshun in situations where the dispute concerns the whole issue of liability to pay compensation; where a matter has been agitated in subsequent proceedings in circumstances where it was unreasonable not to have relied on that matter in the original proceedings. Section 261(3) is not inconsistent with the operation of Anshun to preclude the agitation in subsequent proceedings of a matter relevant to liability to pay compensation. Rather, s 261(3) appears to me to contemplate circumstances in which successive claims are made concerning liability for disparate injuries suffered in the same, but otherwise compensable incident. There is not, therefore, any substantive inconsistency between the operation of s 261(3) and the continued application of Anshun within the context of the legislative framework beyond the acknowledged difficulties in the application of common law principles to a statutory scheme of this nature.
120. Those acknowledged difficulties also arise with respect to s 261(1), extracted above, which requires that claims for permanent impairment compensation in respect of an injury must, as far as practicable, be made at the same time. As noted above, the appellants contend that no such provision would be required if Anshun was of general application, and, further, that the phrase ‘as far as practicable’ is inconsistent with the application of Anshun. However, this again elides the distinction between questions of whole of liability to pay compensation, and successive claims concerning liability for disparate injuries suffered in the same incident. I consider that, while the provision presents difficulties, it does not give rise to express inconsistency between the application of Anshun and the terms of the statute. This same analysis is applicable to ss 65(6), 65(9), and 66(2A) of the 1998 Act, which are in similar terms to the provisions extracted above.”
Additionally, given the manner in which Anshun has been argued in this matter, I set out a passage of Brereton JA from Miller No 10 at [135] which is relevant to the consideration of the Anshun appeal ground:
“Further, the application of Anshun in the compensation jurisdiction, albeit in a somewhat circumscribed way, is well-established by authority. The application of Anshun in this context must have regard to the legislative structure and scheme, and also to conventions of practice and procedure, because such conventions inform a judgment as to whether it is unreasonable in the circumstances not to have brought a particular claim earlier. But that is not to say that the doctrine does not apply; only that whether a claim ought reasonably have been brought in the context of an earlier claim will be informed by those matters. To the extent that the legislative scheme does not permit one claim to be litigated in the context of another, the Anshun doctrine would not be engaged. Similarly, if as a matter of practice in the jurisdiction, it was usual for one type of claim to be brought separately and later than another, Anshun would not require that it be brought in earlier proceedings. What the authorities establish is that a worker is not required to bring forward at once all claims for all types of compensation in respect of all injuries arising out of the one event, and may pursue different types of compensation and in respect of different injuries separately, but may not in a later application claim, on an alternative basis, the same relief as has earlier been denied – which is what the appellants here sought to do.”
In Geary v UPS Pty Ltd[67] I set out a number of principles relating to Anshun estoppel as it applies to workers compensation matters. My remarks in Geary have been referred to by both parties in this matter, so I set the principles from that case out in full below:
[67] [2021] NSWPICPD 47 (Geary).
“81. In Anshun, the following circumstances were existent. Anshun Pty Ltd (Anshun) had hired a crane from the Port of Melbourne Authority (the Authority). This hiring was governed by an agreement by which Anshun agreed to indemnify the Authority against all actions in relation to injury or loss of life related to the use of the crane. A worker was injured in the course of his employment when a load of girders being handled by the crane fell on him. The workman sued the Authority and Anshun for damages and negligence. Both defendants claimed contribution from one another, but the Authority did not in its defence plead its contractual right to an indemnity. The worker recovered damages and the Court ordered that Anshun should recover contribution from the Authority to the extent of 90% of the damages and the Authority from Anshun in the amount of 10%. The Authority later brought a second action against Anshun pleading its rights under the contractual indemnity. The question that arose for consideration was whether or not the Authority was estopped from maintaining this second action based upon the indemnity.
82. In not permitting the Authority to maintain its claim based upon the contractual indemnity, the plurality found as follows:
‘In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence 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. 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. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few. See the illustrations given in Cromwell v County of Sac.(1876) 94 US (24 Law Ed, at p 199).
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.’
83. In terms of conflicting judgments, the High Court said as follows:
‘By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.
It is for this reason that we regard the judgment that the Authority seeks to obtain as one which would conflict with the existing judgment, though the new judgment would be based on a different cause of action, a contractual indemnity.’
84. The Anshun principle has been considered in a number of cases. Notably in Habib McColl JA (Giles and Campbell JJA agreeing) said as follows regarding Anshun estoppel:
‘The principle commonly referred to as Anshun estoppel, established in Henderson v Henderson [1843] EngR 917; (1843) 3 Hare 100; [1843-60] ER 313 (at 319)), involves an extended doctrine of res judicata. It operates ‘not only [in respect of] points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time’: Anshun (at 598) per Gibbs CJ, Mason and Aickin JJ. There will be an estoppel if it appears that ‘the matter relied upon ... 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’: Anshun (at 602). The test is one of reasonableness. Gibbs CJ, Mason and Aickin JJ rejected (at 602) Lord Kilbrandon’s formulation of the test in Yat Tung (at 590) that it was ‘an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings’.’(emphasis added)
85. Further in Habib, McColl JA described the approach to Anshun at [82]–[87]. In these passages her Honour describes Anshun as ‘an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings’ (emphasis added) and that an Anshun estoppel will apply even though the parties to the second proceedings are not the same as the first.
86. In Habib at [84] her Honour said as follows:
‘A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form’.
87. And further at [85] of Habib her Honour provides the following warning:
‘shut[ting] out a claim ... a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation ... is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’’.
88. I have previously discussed the application of the Anshun principle in the context of workers compensation matters. In Miller No 5 the following discussion appeared at paragraphs [185] and following:
‘185. Finally, when considering the application of the Anshun estoppel principle in cases before the Commission, the statutory framework pursuant to which the Commission undertakes its functions is a relevant consideration. The respondents to the appeal have referred to some of them, for example s 354(1) of the 1998 Act: ‘Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits’ and s 354(3) of the 1998 Act: ‘The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.’ Reference is also made to the reconsideration power contained in s 350(3) of the 1998 Act, as well as the power contained in s 378(1) of the 1998 Act with respect to the reconsideration of the decisions of the Registrar or an Appeal Panel.
186. I would make one addition to this list, which for the purposes of a consideration of Anshun estoppel principles is also exceedingly relevant. Section 350(1) of the 1998 Act provides:
‘Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review.’ (emphasis added)
187. The statutory scheme is that decisions, unless subject to a reconsideration application under s 350(3) or an appeal subject to s 352 of the 1998 Act, are final and binding. This is not surprising and reflects an important aspect of public policy in the finality of litigation and the preservation of confidence in the administration of justice. By administration of justice, I would remark that this not only includes the finality of litigation and the prohibition on conflicting judgments, but also the burden upon both a defendant and the court and tribunal system in having to determine disputes arising from a common substratum of facts twice in the same cause. Whilst I will deal with aspects of the respondent’s submissions regarding the Anshun principle in Commission proceedings, it is apparent from a consideration of both the statutory scheme and the principles that I have elucidated above, that Anshun estoppel is a legal principle which is available for use to defend applications brought before the Commission. Indeed in a recent Presidential decision, Deputy President Wood examined the history of Anshun estoppel in the context of the New South Wales workers compensation scheme. In Israel v Catering Industries (NSW) Pty Ltd, the learned Deputy President set out at [114]–[119] various authorities, principally from the Compensation Court, dealing with the application of Anshun estoppel. It is clear from a consideration of those matters, as I have described above, Anshun estoppel is available for deployment in matters before the Commission. There is one difference between cases in the prior Compensation Court and in the present day Commission. The Compensation Court had a costs power, the Commission does not. One of the principles that the Compensation Court applied in determining Anshun estoppel was whether or not there should be a cost penalty. Given that there can be no cost penalty, that is not a factor which can be used to permit a subsequent action as the cost penalty would otherwise ameliorate the counter party’s burden. Thus, in the Commission as currently constituted, the incapacity to make a costs order means that an employer in the position of the appellant is in fact burdened with multiple costs defending a claim arising out of the same substratum of facts.
...
194. The mere fact that a party makes a choice to litigate a matter in other proceedings in and of itself is insufficient to ground an Anshun estoppel. This proposition has even greater resonance in the context of workers compensation cases given that the legislation does provide for various statutory benefits which can, quite properly, be asserted in different proceedings. But this does not mean that every decision in a workers compensation matter to litigate separate claims will always be permissible from an Anshun point of view. Rather, such a decision will only give rise to an Anshun estoppel if it was unreasonable not to have pleaded this cause in the earlier action. The principles distilled from the various authorities are neatly summarised by Judge Neilson in Bruce v Grocon Ltd in the following terms:
‘The principles which I distil from these authorities are:
(a) the principle in [Anshun] extends to claims as well as to defences: O’Brien’s case in the Court of Appeal and Boles’ case;
(b) estoppel will arise if in second or further proceedings there would be a judgment inconsistent with a judgment in the first proceeding or the granting of remedies inconsistent with the remedy originally granted or the declaration of rights of parties inconsistently with the determination of those rights made in the earlier proceedings;
(c) the matter being agitated in the second or further proceedings must be relevant to the original proceeding; and
(d) it was unreasonable not to rely on that matter in the original proceedings; such unreasonableness would depend on the facts of each particular case: Boles’ case.’
89. Miller No 5 was decided before the commencement of the 2020 Act. Section 350 of the 1998 Act which I have referred to above was repealed and its modified version can be found in ss 56 and 57 of the 2020 Act. For the purposes of this argument however there is no material change to this provision which would alter or affect my remarks in Miller No 5 at [187]. The position under the 2020 Act is that decisions under the Workers Compensation Acts (as defined in s 5 of the 2020 Act) are final and binding except as provided for by the 2020 Act or the enabling legislation. There is no provision in the 2020 Act which would modify or derogate from the approach taken to questions of Anshun estoppel in the Personal Injury Commission’s legacy organisations, the Workers Compensation Commission or the Compensation Court before it.” (footnotes omitted)
Before I turn to deal with the first ground of appeal, which raises how the Member approached the application of the Anshun principle to this matter, I set out a number of factual matters which are relevant to the consideration of this argument. There is no controversy about these matters:
(a) the Personal Injury Commission was the tribunal of competent jurisdiction to hear and determine both applications that have been filed by the respondent, and
(b) at all relevant times in both the 2021 and 2023 proceedings, both parties were legally represented. The parties in both sets of proceedings are the same.
(c) Both proceedings were about the psychological injury suffered by the respondent during the course of her employment with the appellant. The injury, a disease of gradual onset, ultimately led the respondent to cease work on 18 May 2020. The respondent was paid weekly compensation by the appellant until December 2020. It is true however, that in both proceedings different benefits were pursued arising from the same injury.
DISCUSSION
As to Ground One
The Member below declined to accede to the appellant’s submissions that Anshun applied to this case and found that the respondent was not estopped from pursuing these proceedings.
The essence of the appellant’s Anshun complaint is the decision taken by the respondent, on legal advice, to split her case and I will set those submissions out below. The appellant also criticises what the respondent described as the practice in the Commission, which the appellant describes as “entrenched and wrong”, of allowing the splitting of cases contrary to Anshun principles. At the time the 2021 proceedings were commenced (as detailed above), the respondent was possessed of two reports from Dr Aman Suman, forensic psychiatrist, both dated 9 March 2021.[68] The first and longer report takes a full history and provides the doctor’s opinions on the respondent’s capacity for work and treatment needs. The second report is shorter and is the doctor’s WPI assessment only. Both reports relate to the same psychiatric injury.
[68] ARD, pp 92, 102.
The appellant acknowledges workers are not obliged to bring all conceivable claims at the same time. But the appellant does submit that a “worker must bring (or more correctly ‘raise’) all claims that a [sic] reasonably open for him or her to bring at the time”.[69]
[69] Appellant’s submissions 8 August 2023, [17].
The appellant submits the following:
“The vice in the worker’s conduct of her proceedings is this – she had two reports from medico-legal doctor, Dr Aman Suman dated 9 March 2021 ([p 92 of ARD]). In the earlier proceedings she only filed and served the [lengthier] of the two which set out, in detail, the doctor’s opinion regarding the full range of matters which one would expect an [independent] medical examiner to consider, including causation, diagnosis, capacity and the need for [treatment]. That report was 6 pages in [length]. [Simultaneously], and without any further examination of the worker, Dr Suman issued a shorter report which was comprised only of a whole person impairment assessment (WPI), namely 22% WPI, together with a table setting [out] the various impairment criteria for a [psychiatric] injury. The shorter WPI was not served at the time. Report appears at p 102 of ARD.”[70]
And:
“It is clear that a deliberate decision to split the case was made. This became clear as a result of material obtained in the course of the proceedings below which were filed under an Application to Admit Late Documents on 4 May 2023. To avoid clutter, the appellant does not wish to copy herein the submissions made dated 5 May 2023 on this material, however, they are relied upon in this appeal. In summary, the deliberate strategic decision was made to establish liability first (that is, with a [relatively] modest settlement). This is because the claim was regarded as weak – see for example the email advice of Ms Youkhana dated 22 June 2020 and the letter of advice from Mr McManamey dated 15 September 2021.
The Member below excused the severance of the s 66 claim from the weekly/medical claim on the basis that it was not feasible for her to litigate it at the time. However, this respectfully misapplies Anshun. The prejudice to the employer is not so much in being sued four times for the same injury, rather it is in settling a case with evidence being withheld – that is, without the claim even being ‘raised’, that is to say, brought to the attention of the employer and that is where the unfairness lies.”[71]
[70] Appellant’s submissions 8 August 2023, [18].
[71] Appellant’s submissions 8 August 2023, [20]–[21].
The appellant has also relied upon its written submissions that were before the Member dated 5 May 2023. This submission deals with the late documents that were filed on 4 May 2023 comprising the legal advices provided to the respondent by her legal representatives. After making a number of observations on various discrete documents, the following submission is put:
“The inescapable conclusion from the above is that the [respondent], with the benefit of legal advice from solicitor and counsel, made the conscious decision to settle a weak case on liability on a compromised basis, to, as it were lock in, liability, only to return with a lump sum claim and intended work injury damages claim which she knew, as of that settlement, was available to her but did not ‘raise’. It must be borne in mind that the test in Anshun is not whether a party should have sued for a right in the prior action, but whether she raised such an action. See, inter alia, para [9] of the joint judgment of Gibbs CJ, Mason and Aikin JJ.”[72]
[72] Appellant’s submissions before the Member, 5 May 2023, [5].
The respondent says that the appellant’s arguments proceed on the basis of “an erroneous understanding” of Anshun principles.[73]
[73] Respondent’s submissions 20 September 2023, [4].
The respondent continues:
“As the High Court noted in Anshun, a material consideration is whether the subsequent proceedings would result in an outcome which would conflict with the earlier decision. No such conflict could result from the worker's decision in 2021 to confine the relief sought in Commission proceedings to weekly payments and medical expenses.
A claim for lump sum compensation requires assessment by a Medical Assessor of the degree of impairment (pursuant to the SIRA Guidelines and AMA5) that has resulted from the subject injury, an issue entirely unrelated to determination of the worker’s incapacity and need for medical treatment. It follows that there is no prospect that assessment of the worker’s impairment, when examined by a Medical Assessor, would be in conflict with the earlier Orders providing for different forms of compensation.
The appellant, beside failing to refer to the content of the High Court decision in Anshun, and any portion thereof which it considered to be of assistance in seeking to resist the claim for lump sum compensation, has also provided no argument at all as to how, as contemplated by the High Court, assessment of the worker's degree of impairment would result in a decision which conflicted with the earlier Orders regarding weekly payments and reasonably necessary medical treatment.”[74]
And:
“In Racing NSW v Goode [2023] NSWPICPD 43 (‘Goode’) the President noted at [91] that unreasonableness by a litigant was a factor relevant to evaluation of whether Anshun estoppel would apply to such a party:
‘In terms of the Anshun argument though, I do not consider that it has been articulated in a manner that is compelling. A fundamental precept in the establishment of an Anshun defence is that the later claim was so relevant to the subject matter of the earlier dispute, that it was unreasonable not to have advanced it in the earlier proceedings. In Miller No 10, Brereton JA remarks that Anshun ‘is engaged only where the party has unreasonably failed to assert a right or defence in connection with or in the context of the earlier proceeding’ (emphasis in original)
There can be no legitimate argument that the worker in the current proceedings acted unreasonably when proceeding to lodge an Application to Resolve a Dispute in May 2021 under Matter No. 1738/21, seeking determination of the issues of liability, weekly payments and reasonably necessary medical treatment, and not including a claim for lump sum compensation. Likewise, there can be no legitimate argument that the worker acted unreasonably in settling that matter on the basis agreed in September 2021.
At the time of the settlement under Matter No. 1738/21, the appellant's insurer had received the worker's claim for lump sum compensation (which was served on the insurer on 10 June 2021). The insurer could not have understood that settlement of the separate issues of the worker’s entitlement to weekly compensation and payment of reasonably necessary medical treatment served to settle, or extinguish, the separate claim for lump sum compensation.
It is commonplace in the Commission for workers to seek different forms of compensation in separate applications. In the current matter, the primary task for the worker was to secure a finding that she had suffered a compensable injury. Additional relief sought as a priority was to secure weekly compensation and payment of medical treatment.”[75]
[74] Respondent’s submissions 20 September 2023, [12]–[14].
[75] Respondent’s submissions 20 September 2023, [18]–[21].
The respondent also relies on s 354 of the 1998 Act. I would record for the sake of accuracy that this provision was repealed on the commencement of the 2020 Act on 1 March 2021. However, the former s 354 of the 1998 Act has been reproduced in identical terms in s 43 of the 2020 Act (set out above) and so the submission made by the respondent is not affected by this legislative change. In short, based upon the now s 43 of the 2020 Act, the respondent says that she is entitled to have the 2023 proceedings dealt with on their merits according to equity and good conscience between the parties.[76]
[76] Respondent’s submissions 20 September 2023, [16]–[17].
The respondent further argues that shutting the respondent’s second claim out, as is the effect of the appellant’s Anshun argument, would be contrary to the beneficial objects of the workers compensation legislation.[77]
[77] Respondent’s submissions 20 September 2023, [23].
The respondent relies upon its written submissions to the Member dated 12 April 2023. This submission dealt with three categories of estoppel: res judicata, Anshun and issue estoppel. As Anshun is the only argument before me on appeal, I will set out below the salient sections of the submission dealing with that issue:
“17. As Judge Phillips stated in Fourmeninapub, ‘Anshun estoppel prevents a party from relying on a claim or defence if it unreasonably refrained from including it in the earlier proceedings’.
18. It is commonplace for applicants in workers compensation matters to proceed initially with claims for weekly compensation and payment of medical expenses, bringing impairment claims later when maximum medical improvement is reached. The extent of any impairment is not a matter which affects the primary issue of injury, the nature and extent of any resulting incapacity, or whether medical treatment is reasonably necessary. It cannot reasonably be suggested that it is incumbent on a worker to bring all claims simultaneously.
19. In the current matter, no claim for lump sum compensation had been made prior to the lodgement of the Application to Resolve a Dispute in Matter No. W1738/21. Ms Sanders was under no obligation to make a claim for lump sum compensation either before such lodgement or before settling her claim for weekly compensation and medical expenses in September 2021.
20. Moreover, the Commission did not have any jurisdiction in respect of a claim for lump sum compensation because, as no such claim had been made prior to the Orders entered into in September 2021, no dispute pursuant to section 66 had arisen in accordance with the legislation.
21. If the [appellant] is correct in asserting that an Anshun estoppel applies in the current case, it would not be possible for a worker to proceed with a claim for lump sum compensation after settlement or determination of claims for weekly compensation and medical expenses. That is plainly not the case or practice in this jurisdiction, as borne out by thousands of cases in which claims for lump sum compensation are made well after settlement or determination of other entitlements.”[78]
[78] Respondent’s submissions before the Member, 12 April 2023, [17]–[21].
The respondent says that no error in Member’s approach has been established.
In reply, the appellant takes issue with a number of the respondent’s arguments. The appellant states:
“3. That which is stated by the respondent at [paragraph [5] of the respondent’s submissions dated 20 September 2023] namely that the appellant’s argument is ‘… contrary to the established practice and procedure, principles and jurisprudence of the Personal Injury Commission, and its predecessor, the Workers Compensation …’ may be exactly right, or at the very least this is perceived to be correct by several practitioners in this jurisdiction. That is why this appeal has been brought – to demonstrate the existence of an entrenched, but wrong, approach to litigation in this Commission despite authorities confirming that the principles in Anshun do apply in this area of litigation (including those cited by the Member at para 49(c) of his reasons).
…
5. There is a subtle but important error in what is submitted by the respondent at [paragraphs [10]–[11] of the respondent’s submissions dated 20 September 2023]. The failure by the [respondent] in the previous proceedings was in not raising the lump sum claim in the litigation (not failing to claim the lump sum claim in the previous proceedings). The distinction is important for two reasons – firstly, the test in Anshun pertains to the raising of claims (it is not limited to the making of claims) and, secondly, because of the reasons given by the Member at [109] in which he (incorrectly) regarded the making of a claim on an insurer as removing the requirement to raise a claim in the proceedings. Whilst the Member pondered in that paragraph how such a claim would be raised, with respect this is obvious – by including the evidence which was withheld. The respondent submits at [paragraph [20] of the respondent’s submissions dated 20 September 2023] that the claim had been made on the insurer – this has been dealt with by the appellant in its submissions in chief at [22] and in the interests of brevity, and in confining these submissions to reply, those submissions will not be repeated here but they are a complete answer to [paragraph [20] of the respondent’s submissions dated 20 September 2023].
6. It is correct, as is submitted at [paragraph [12] of the respondent’s submissions dated 20 September 2023] that a material consideration is conflicting decisions but this is only one consideration. Again, this is a straw man defence of the appeal because the appellant does not suggest that inconsistent decisions are a risk in this case (indeed this is conceded at [paragaph [14] of the respondent’s submissions dated 20 September 2023]). Also, one has to look at Anshun together with case law which has emerged since, including Aon Risk Services v Australian National University (2009) 239 CLR 175 regarding the efficient use of court (and, by logical extension, tribunal) resources. Further, as is noted in [paragraph [18] of the respondent’s submissions dated 20 September 2023], a relevant factor is unreasonableness itself (indeed, the appellant submits this is essentially the primary factor in resolving questions of Anshun). The quote from Racing NSW v Goode [2023] NSWPICPD 43 at [paragraph [18] of the respondent’s submissions dated 20 September 2023] is apposite in that the President in that case said ‘A fundamental precept in the establishment of an Anshun defence is that the later claim was so relevant to the subject matter of the earlier dispute, that it was unreasonable not to have advanced it in the earlier proceedings’. The present appeal arises out of the selective reliance of one of two reports from the same expert witness that were issued simultaneously (the omitted report being the basis for the s 66 lump sum claim in the proceedings below). This was clearly ‘relevant’ in this sense contemplated by his Honour in Goode.
7. As to what is submitted by the respondent from [paragraph [16] of the respondent’s submissions dated 20 September 2023], the legislative provisions therein cited reflect (indeed create, together with other provisions) the adjective law of this Commission, which is, in essence, to act informally and to focus on the proper consideration of the matter before it. There is little to distinguish these statutory dictates as to case management (except perhaps on the point of informality and the rules of evidence) from the statutory provisions which govern mainstream courts – eg ss 56 to 59 of the Civil Procedure Act 2005 and s 37M of the Federal Court of Australia Act 1976 (Cth). A similar provision is also found in s 2A of the Administrative Appeals Tribunal Act 1975 (Cth). The existence of provisions of this nature do not permit a court or tribunal to ignore the substantive law in deference to informality in case management. In any event, to use the language in 354 of the 1998 Act, the ‘substantive merits’ of the case include defences to the claim, which in this instance includes Anshun estoppel. A worker’s claim could hardly be described as meritorious when it is met with a defence which prohibits it its ventilation entirely.”[79]
[79] Appellant’s submissions 4 October 2023, [3], [5]–[7].
The submission referred to in paragraph [3] of the appellant’s reply was before the Member in an expanded form. In the appellant’s written submission dated 26 May 2023 at paragraph [5], the following is submitted:
“As was identified by Heydon J in Kirk v Industrial Court of New South Wales [2010] HCA 1, there is a danger that specialist tribunals, expert as they may be in their respective field, forgetting basic common law principles of universal application. The error in Kirk was to permit a prosecutor, in a work safety matter in a court with specialised jurisdiction in that matter, to call an accused person to give evidence – contrary to a basic and fundamental common law rule of privilege against self incrimination. What has apparently become the accepted culture of claim splitting is confirmed in [paragraph [8] of the respondent’s submissions dated 24 May 2023] – it very much should come as a surprise to any person in this jurisdiction that a claim that could have been made would be subsequently made, after settlement of proceedings (except where it is legitimate such as in the example given above). The myth is then developed at [paragraph [9] of the respondent’s submissions dated 24 May 2023] with the reference to ‘all practitioners in this matter’ being aware that claims can be split. Again, and out of an abundance of caution, the [appellant] submits that there are legitimate circumstances where a worker can bring one claim for compensation and then another, in the context of an ongoing statutory scheme. What is not permissible is to split a case that is presently available when the proceedings are commenced. What is worse still is to do so whilst at the same time withholding evidence (ie the ‘raising’ concept per Anshun). Another example of accepted practice being legally wrong is in entertaining interstate litigation in tribunals, which has been unconstitutional for a century before this Commission was created, but was the accepted practice until Ritson v State of New South Wales [2021] NSWPIC 409.”[80] (emphasis in original)
[80] Appellant’s submissions before the Member, 26 May 2023, [5].
The appellant also says that the respondent’s reliance upon the beneficial nature of the workers compensation legislation is irrelevant to the Anshun argument, which is not a matter of statutory construction, rather it is the application of a principle available under the general law.[81]
[81] Appellant’s submission 4 October 2023, [8].
On 17 May 2024, I issued a Direction to both parties inviting submissions on Miller No 10. I set out below the parties’ submissions in response.
The appellant submitted as follows:
“12. The approach contended for by the appellant is consistent with Ward P’s analysis. Namely, whilst there may be some inelegance in the application of Anshun in a statutory scheme for ongoing compensation, the relevant modifying factor, as compared to a common law case (and perhaps there are others) is that not all aspects of a workers compensation claim will, in every case, arise simultaneously (cf a common law damages claim where past and future losses are assessed at the same time, and before the latter actually materialises). An obvious example in this scheme would be that surgery may only be reasonably necessary (s 60 of the 1987 Act) many years after a lump sum be payable (s 66). In that scenario, one could not reasonably expect the worker, as litigant, to bring a claim for medical expenses at the same time as the lump sum. On the other hand, if a worker was (at the same point in time) both incapacitated and in need of treatment, then that worker would be barred by the principles in Anshun if only weekly benefits were litigated in one set of proceedings and medical benefits in the next set of proceedings because of the conclusion reached by Ward P at [127] which was that:
‘In light of the foregoing, there is no reason in principle why Anshun estoppel ought not be applicable to the legislative schemes established by the 1987 and 1998 Acts.’
13. Although Ward P gave the main judgment, her Honour had the benefit of Brereton JA’s reasons with which she expressed agreement at [128]. Returning to Brereton JA’s judgment, it is noted that his Honour said the following (all of which are in keeping with the way the appellant has framed this appeal) at [135] with emphasis added:
‘… the application of Anshun in the compensation jurisdiction, albeit in a somewhat circumscribed way, is well-established by authority.[14] The application of Anshun in this context must have regard to the legislative structure and scheme, and also to conventions of practice and procedure, because such conventions inform a judgment as to whether it is unreasonable in the circumstances not to have brought a particular claim earlier. But that is not to say that the doctrine does not apply; only that whether a claim ought reasonably have been brought in the context of an earlier claim will be informed by those matters.’
14. With respect to his Honour this may be a subtle misstatement of Anshun itself which extends to the raising of claims, as opposed to necessarily litigating claims together (the difference may have been immaterial in Miller No 10). The significance of the distinction is that by raising a matter, even if it not be formally litigated, a plaintiff (or applicant) affords fairness to the defendant (or respondent). For the language used in Anshun itself see para [9] of the decision of Gibbs CJ, Mason and Aikin JJ. Also see decision of Murphy J at [2] and Brennan J at [7]. The distinction between raising and litigating claims has greater significance in this matter because of the circumstances by which the earlier proceedings were settled as set out in the appellant’s primary submissions on appeal with the effect that the problem is not a mere multiplicity of proceedings but rather, the effect of that on the appellant in the particular history of this matter. Whilst multiplicity of proceedings here was not justified, the instigation of further proceedings was especially problematic in an Anshun sense because of the way in which the worker had achieved the original settlement in not raising the present claim – whether or not she was in a position to litigate it or not.”[82] (emphasis in original)
[82] Appellant’s submissions, 30 May 2024, [12], [14].
In reply the respondent makes a distinction between what is said to be the “primary issue of injury” and “secondary issues which require consideration of whether the injury giving rise to liability has resulted in incapacity, the need for treatment and impairment, thereby providing a basis for the award of statutory entitlements to compensation.”[83] The respondent says that Anshun estoppel is relevant to the primary issue of injury and submits that this is the effect of Miller No 10.[84] The respondent says that she “was not ‘required to bring forward at once all claims for all forms of compensation’, and was entitled, having initially claimed weekly compensation, to make a successive claim for lump sum compensation, as she did.”[85]
[83] Respondent’s submissions, 31 May 2024, [2].
[84] Respondent’s submissions, 31 May 2024, [4]–[16].
[85] Respondent’s submissions, 31 May 2024, [17].
Consideration
As I have remarked above, the central plank of the appellant’s complaint is the conscious decision that was made by the respondent to split the case and in so doing withhold evidence (Dr Suman’s 9 March 2021 WPI assessment) from the appellant. An associated complaint is that if this decision to split the case reflects a Commission practice, then such a practice is wrong, citing Kirk v Industrial Court of New South Wales.[86]
[86] [2010] HCA 1 (Kirk).
As is evident from Miller No 10 which I have set out in some detail above, Anshun applies to the compensation schemes under the 1987 and 1998 Acts. However, as was stated by Brereton JA in Miller No 10 at [135], Anshun applies in a context. Regard must be had to the “… legislative structure and scheme, and also to conventions of practice and procedure …”. This, his Honour said, informed the judgment as to what is unreasonable in the circumstances. This is consistent with the decision of McColl JA in Habib that the Anshun power “… is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’.”[87] I do not accept the appellant’s submission that Brereton JA’s passage at paragraph [135] of Miller No 10 is a “subtle misstatement of Anshun itself”.[88] To the contrary, it is a statement consistent with the authorities and the correct approach to assessing an Anshun claim.
[87] Habib, [85].
[88] Appellant’s submissions 30 May 2024, [14].
The starting point relates to how claims are able to be commenced in the Commission. The Commission does not possess inherent jurisdiction, rather it is as conferred by the 1987 and 1998 Acts.[89] The authority of the Commission to decide a dispute depends upon the making of a claim and it being disputed by an insurer issuing a s 78 notice, unless there is a failure to determine the claim in the manner prescribed by s 289 of the 1998 Act, a point which was not taken.[90] Next, I refer to my remarks in Miller No 5 at [194][91] noting that the legislation does allow for various benefits to be pursued in different proceedings, the key issue being that one must examine “if it was unreasonable not to have pleaded this cause in the earlier action.”
[89] See sections 288–289A of the 1998 Act.
[90] Skates v Hills Industries Ltd [2021] NSWCA 142 (Skates), per Leeming JA.
[91] Set out within the quote at from Geary at [64] above.
The appellant’s complaints about the practice of splitting the case in some respects obscures the real issue. Namely, whether in light of all the necessary considerations from the authorities, was the decision to split the case unreasonable?
The Member, in a very well-reasoned decision, examined the question of what was reasonable in the context of the splitting of the case, making a number of factual findings none of which are challenged on appeal. I will refer to some of these findings below.
The appellant is clearly aggrieved that it was involved in the settlement of the first set of proceedings in circumstances where it says evidence was withheld and without the claim being ‘raised’ during the 2021 proceedings. This, the appellant says, is unfair.[92] I do not accept this submission. The Member has made a number of factual findings at reasons [92], [93], [109] and [111] about the raising of the s 66 claim with the appellant, all of which were available and which stand on appeal (given they have not been challenged). The Member has found that the s 66 medical opinion of Dr Suman, assessing 22% WPI, was raised with the appellant prior to the resolution of the 2021 proceedings in an email on 10 June 2021.[93] Again, there is no challenge to this finding which makes the basis of the complaint in this ground untenable. The key to an Anshun complaint is the unreasonable failure to raise a claim. In this instance, the Member clearly found that it had been raised prior to the resolution of the 2021 proceedings.
[92] Appellant’s submissions 8 August 2023, [21].
[93] Reasons, [109].
The appellant says that the Member’s excusal of the severance of the s 66 claim misapplies Anshun.[94] I do not accept this submission. The Member at reasons [92]–[96] describes the legislative requirements to make a claim in order to empower the Commission to hear the dispute,[95] which findings are not challenged on appeal. This is precisely the principled approach required to be taken consistent with Brereton JA’s remarks in Miller No 10 at [135]. Far from being an error, it was the correct approach from an Anshun point of view.
[94] Appellant’s submissions 8 August 2023, [21].
[95] See Skates.
I would also note that the Member found that there is no possibility of conflicting decisions in this matter, which is of course an important Anshun consideration.[96] No challenge has been made to this aspect of the decision.
[96] Reasons, [100].
I now deal with the submission the appellant has made with respect to the High Court decision in Kirk and, in particular, remarks by Heydon J about the dangers of specialist tribunals.[97] The appellant’s reference to Kirk is plainly to his Honour’s obiter remarks at paragraph [122]. In this passage, Heydon J sagely warns about the dangers associated with specialist courts and tribunals departing from established “traditions, standards and mores of the wider profession and judiciary.”
[97] Appellant’s submissions before the Member, 26 May 2023, [5]; relied on in this appeal, which is expanded above at [78].
The appellant relies upon these obiter remarks to assert that the ability of a person in the position of the respondent to split their case is contrary to “basic common law principles of universal application.”
I do not accept this submission. I agree that the Commission was established as a specialist tribunal to resolve and/or determine workers compensation disputes. However as I stated above, it is not a tribunal of inherent jurisdiction. Rather the Commission’s authority to decide workers compensation matters derives from the 1987 and 1998 Acts, as well as the 2020 Act. This is the “context” that Anshun operates in, about which Brereton JA made his remarks at [135] of Miller No 10.
It is beyond doubt that Anshun principles are available to be deployed in matters before the Commission. There is a long line of authority, culminating in Miller No 10, which establishes this fact. But it applies within the context of the Commission’s legislation, practices and procedures and the application of Anshun principles in accordance with the authorities.[98] The approach referred to by Brereton JA is consistent with that referred to by McColl JA in Habib, where her Honour said at [85] that the Anshun power is “not to be exercised except ‘after a scrupulous examination of all the circumstances’.” This would include examining the legislative regime that is applicable, the practices, procedures and rules of the Commission in considering the question of unreasonableness in any given case.
[98] See, for example, the authorities referenced at footnote 14 in Miller No 10, [135]. To this list I would add decisions such as Geary, Miller No 5 and Habib.
In my view, the appellant’s submission on this point does not engage with the Anshun principles that I have discussed above. Rather, it states a proposition about a particular practice, namely the splitting of cases in certain circumstances, as constituting a heretical departure from the norm. I do not accept this submission.
Whilst this appeal ground will not succeed, I must deal with two of the submissions made by the respondent to the appeal, lest these arguments be wrongly seen to have prevailed in this appeal. At paragraph [23] of the respondent’s submissions dated 20 September 2023, the respondent submits that extinguishing the worker’s entitlement to a different form of compensation “would be contrary to the beneficial objects of the legislation”. I do not accept the premise of this submission that the entire purpose of the workers compensation legislation is beneficial. Parts of the legislative scheme are certainly beneficial, other parts are decidedly not beneficial, or could not be construed as being beneficial.[99] In any event, the beneficial interpretation of a statute is a principle that applies to the construction of that legislation where there may be doubt as to the meaning of a particular provision(s). It has no role in considering the application of a general law principle like Anshun to a workers compensation matter. Indeed as I have related above from Miller No 10, Anshun most certainly applies to the Workers Compensation Acts, if a consideration of the circumstances of the particular case warrants its application.
[99] See ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18.
Secondly, the respondent asserts that she is entitled to have her case decided on the merits consistent with s 354 of the 1998 Act.[100] As I have noted above, this provision has been repealed and now appears as s 43 of the 2020 Act. If one were to accept this submission, Anshun could by definition never apply to a workers compensation matter. An Anshun order, by its very nature, means shutting out a claim. The difficulty in reconciling common law principles, such as Anshun, and statutory frameworks was specifically addressed in Miller No 10 by Ward P.[101] I do not accept this submission regarding the effect of s 43 of the 2020 Act. The approach is not a binary choice between s 43 or Anshun applying in preference to the other. Anshun applies in appropriate cases after the application of the principles I have discussed. If this means a case is not determined on its merits because Anshun has been enlivened, then that is the result of the matter. I therefore reject this submission on the effect of s 43 of the 2020 Act on the application of Anshun principles. This provision, s 43 of the 2020 Act, is taken into account in assessing reasonableness, in accordance with Brereton JA’s remarks at Miller No 10 [135]; it is not determinative in itself as appears to be asserted in this submission.
[100] Respondent’s submissions 20 September 2023, [16]–[17].
[101] Miller No 10, [123], [126].
The appellant has failed to establish the error alleged in this ground. Ground One is dismissed.
As to Ground Two
The appellant asserts that the Member made a determination that the deemed date of injury was 10 June 2021 and this can be found at Determination No 2 of the 12 July 2023 Certificate of Determination. The reason for making this finding, the appellant says, is found at reasons [63]. The appellant refers to s 15(1) of the 1987 Act which sets out the separate occasions when a disease injury can be deemed. The appellant states, after referring to the authorities of Stone and Inghams Enterprises Pty Ltd v Thoroughgood,[102] the following:
“In the Certificate of Determination in matter W1738/21 the Commission recorded a date of injury of 18 May 2020 being a deemed date (the ARD was amended accordingly). That injury date remains applicable for present [purposes], not the date of claim namely 6 September 2022. This is because, on the converse of the reasoning in Stone there was a period of incapacity with the effect that s 15(1)(a)(i) applies and the alternative in 15(1)(a)( ii) does not apply. The second alternative cannot apply unless, as in Stone, there was no incapacity the result of the injury (but here, there was).”[103]
[102] [2014] NSWCA 166.
[103] Appellant’s submissions, 8 August 2023, [28].
The respondent contends, in a very short response, that the appellant’s submissions about deemed date of injury for a lump sum claim are “misconceived”. The respondent says that ss 15 and 16 of the 1987 Act can fix different deemed dates of injury for incapacity and impairment and that the Member’s decision merely reflects the correct understanding of the law. It follows, the respondent argues, that there is no error in the Member’s decision.[104]
[104] Respondent’s submissions, 20 September 2023, [27]–[29].
Consideration
Before the Member, the appellant submitted as follows:
“The [appellant] submits the date of injury pleaded in the Application to Resolve a Dispute is correct, namely 18 May 2020. The [appellant] says this is the correct date by reason of ss 15(1)/16(1) of the Workers Compensation Act 1987 on the basis this is the first date of incapacity as confirmed by the [respondent] in paragraph 43 (see p 7 of the ARD).”[105]
[105] Appellant’s written submissions on late documents, 8 May 2023, [9].
In a later set of submissions before the Member, the appellant returned to the question of the date of injury. The appellant stated as follows:
“The [appellant] relies upon s 16 of the 1987 Act, consistent with the order 2 of the Certificate of Determination - Consent Orders dated 3 September 2021. Pursuant to s 16(1)(a) of the 1987 Act, the injury is deemed to have happened at either [the] time of incapacity or at the time the injured worker makes a claim for compensation with respect to the injury if incapacity has not resulted from the injury. The decision in [Stone] is distinguished on its facts. The injured worker sought lump sum compensation in respect of skin disease caused by prolonged exposure to the sun in the course of his employment. The injured worker in Stone had been incapacitated for work by reason of a back injury for some time and as such was not entitled to weekly compensation benefits in respect of the skin disease. The Court determined the deemed date of injury in such circumstances, noting the injured worker did not suffer economic incapacity, to be the date a claim for lump sum compensation was made.
The decision in Stone is distinguished from the instant proceedings. The [respondent] suffered an incapacity for work by reason of the very injury for which she brings a claim for lump sum compensation. The first date of incapacity for work is the date of injury pursuant to s 16(1)(a) of the 1987 Act and is consistent with the ratio in Stone (distinguished for the reasons set out above).”[106]
[106] Appellant’s submissions before the Member, 26 May 2023, [8]–[9].
Whilst on appeal the appellant takes issue with what appears at reasons [63], this paragraph is not the dispositive section of the Member’s decision on this question. Rather, reasons [63] is the Member’s summary of the appellant’s submissions, that I have set out above, which submitted that the date of injury of 18 May 2020 is the correct deemed date. It is apparent that the reference to reasons [63] is mistaken.
The Member dealt with this question at reasons [120]–[129]. The Member addressed extracts from Stone at reasons [123]–[124] before making the following findings:
“It follows in accordance with Stone that the [respondent’s] deemed date of injury for the purpose of her claim for weekly benefits compensation will be different from her deemed date of injury for the purpose of her claim pursuant to s 66 of the 1987 Act, due to the effect of s 16(3) of the 1987 Act treating her impairment as an injury by itself.
The [respondent] could not be incapacitated by her permanent impairment prior to it being assessed and claimed. Her deemed date of injury for the purpose of her claim for permanent impairment pursuant to s 66 of the 1987 Act will therefore be the date of the claim.”[107]
[107] Reasons, [125]–[126].
The Member then noted that he had found the date of the claim as being 10 June 2021.[108]
[108] Reasons, [127].
There is no submission from the appellant that is directed in terms to that which appears at reasons [120]–[129] and what the Member’s error in approach to this question was. It is apparent that the appellant says that the effect of Stone is that the relevant date is the date of injury because incapacity resulted from that injury. Granted in this matter incapacity did result from the injury, but this argument does not engage with the Member’s reliance on the remarks of Handley JA[109] and Hodgson JA[110] in Stone that s 16 can fix different dates for incapacity and impairment injuries. There is no assertion by the appellant as to why this reasoning was wrong or the why the Member’s remarks about the effect of s16(3) of the 1987 Act are wrong.
[109] Reasons, [123].
[110] Reasons, [124].
Intervention on appeal, as I have described above, depends upon the identification and correction of error.[111] The appellant has failed to show how the Member was wrong in his application of the authorities in finding the date of the claim (10 June 2021) as being the deemed date of injury. The appellant’s appeal submissions on this ground, rather than identifying error, are in reality an impermissible reprise of the argument conducted at first instance.
[111] Raulston; s 352(5) of the 1998 Act.
I would also remark that while deciding the correct deemed date of injury is matter of statutory construction, such a consideration cannot be divorced from the facts as found. In this case the facts were that the respondent suffered a psychological injury which was a disease injury of gradual onset. The respondent ceased work on 18 May 2020, which is uncontroversial and the date that her incapacity commenced. The respondent was paid compensation until December 2020 at which point liability was declined by the appellant’s insurer. The 2021 proceedings were then commenced. Pausing here, as the Member rightly noted, s 66(1A) of the 1987 Act provides that an injured worker may only bring one claim for permanent impairment compensation.[112] The continuation of various benefits under the legislation is determined by a worker’s level of permanent impairment.[113] The consequence of this is that a permanent impairment claim is a matter of some moment to each worker. Whilst considerations of incapacity are relevant to any consideration of permanent impairment, there is no evidence that at the time the worker initially became incapacitated for work, that any measurable level of permanent impairment existed, there was certainly no medical assessment at that time suggestive of this fact. The 2021 proceedings were resolved by consent. Order 3 of the Certificate of Determination dated 3 September 2021[114] recorded that incapacity ceased on 4 May 2021 as an award was entered in favour of the appellant after that date. Incapacity therefore ceased to be an issue between the parties.
[112] See reasons, [96].
[113] See s 39 of the 1987 Act.
[114] Reply to ARD, p 26.
Unsurprisingly, at a point later than 18 May 2020, the respondent was assessed as having 22% WPI and even later, a further assessment was made assessing 23% WPI. Often times there is not a temporal correlation, on the facts, between incapacity and permanent impairment. That is the case in this matter and that is why the various statutory provisions dealing with date of injury[115] attempt to address these differing factual circumstances.[116] Given the factual findings the Member made about deemed date of injury, which have not been challenged on appeal, the construction of the statutory provisions by the Member took place in light of those findings.
[115] Sections 15 and 16 of the 1987 Act.
[116] See Haddad v The GEO Group Australia Pty Ltd [2024] NSWCA 135 at [80]–[81] and the discussion of the authorities from [98]–[126].
Ground Two has not been established. Ground Two is dismissed.
DECISION
The Certificate of Determination dated 12 July 2023 is confirmed.
Judge Phillips
PRESIDENT
19 June 2024
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