JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE FULL COURT (WA)
CITATION: SQUIRES TRANSPORT PTY LTD -v- TURNOR [2004] WASCA 245
CORAM: MURRAY ACJ
TEMPLEMAN J
MCKECHNIE J
HEARD: 20 AUGUST 2004
DELIVERED : 3 NOVEMBER 2004
FILE NO/S: FUL 64 of 2003
BETWEEN: SQUIRES TRANSPORT PTY LTD
Appellant
AND
NOEL PERCY TURNOR
Respondent
ON APPEAL FROM:
For File No : FUL 64 of 2003
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :COMMISSIONER REYNOLDS
Citation :TURNOR -v- SQUIRES TRANSPORT PTY LTD [2003] WADC 91
File No :CIV ALB 220 of 1998
Catchwords:
Evidence - Workers compensation and trial for common law damages - Finding by review officer that playing sport not the sole cause of injury - Whether issue estoppel bound employer from asserting the contrary in the common law proceedings
Damages - Employer liability - Whether open to discount award because of retained earning capacity before trial - Common not to award interest so as to allow for contingencies of this kind - Whether double counting by reducing future economic loss for retained earning capacity and pre-existing degenerative condition
Legislation:
Workers Compensation and Rehabilitation Act 1981, s 5, s 18
Result:
Appeal dismissed
Cross-appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr J R Brooksby
Respondent: Mr C G Colvin SC & Mr B G Bradley
Solicitors:
Appellant: Greenland Brooksby
Respondent: Bradley & Bayly
Case(s) referred to in judgment(s):
Arnold v National Westminister Bank plc [1991] 2 AC 93
Blair v Curran (1939) 62 CLR 464
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Cole v P & O Ports Ltd [2002] WASCA 157
Henderson v Henderson (1843) 3 Hare 100; (1843) 67 ER 313
Kanowna Bell Goldmines v Feierabend [2003] WASCA 246
Kuligowski v Metrobus (2002) 26 WAR 137
Kuligowski v Metrobus (2004) 78 ALJR 1031
Linsley v Petrie [1998] 1 VR 427
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
McNair v Press Offshore Ltd (1997) 17 WAR 191
O'Toole v Charles David Pty Ltd (1991) 171 CLR 232
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Purkess v Crittenden (1965) 114 CLR 164
Turnor v Squires Transport Pty Ltd [2003] WADC 91
Waddington v Silver Chain Nursing Assn (1998) 20 WAR 269
Watts v Rake (1960) 108 CLR 158
Yates Property Corporation Pty Ltd v Boland (2000) 179 ALR 664
Case(s) also cited:
Australian Associated Motor Insurers Ltd v NRMA Insurance Ltd (2002) 124 FCR 518
Bowen v Tutte (1990) A Tort Rep 81-043
Brunsden v Humphrey (1884) 14 QBD 141
Carl Zeiss Stiftung v Raynor & Keeler Limited No 2 [1967] 1 AC 853
Chappel v Hart (1998) 195 CLR 232
Commonwealth v Butler (1958) 102 CLR 465
Federal Broom Company v Semlitch (1964) 110 CLR 626
Fishlock v Plummer (1950) SASR 176
Gleeson v J Whippell & Co Ltd [1977] 1 WLR 510
Griffiths v Kerkemeyer (1977) 139 CLR 161
Keogh v Dom-Uie Pty Ltd,…
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- Case
- [2004] WASCA 245
- Decision Date
CaseChat Overview and Summary
The legal issues before the court centred around the application of issue estoppel in the context of the Commissioner's findings, and whether these findings could bind the employer in subsequent common law proceedings. Another significant issue was whether the employer could discount the award for workers' compensation due to the employee's retained earning capacity before the trial. Furthermore, the court had to consider whether interest should be awarded to account for contingencies, and if there was double counting in reducing future economic loss for both retained earning capacity and pre-existing degenerative conditions.
The Full Bench dismissed the employer's appeal, finding no merit in the argument that the Commissioner's findings were against the evidence or that issue estoppel did not apply. The court held that the estoppel was created by the Commissioner's decisions and was binding on both the employer and its insurer. The Full Bench also rejected the employer's arguments regarding the discounting of the award and the awarding of interest, finding that the Commissioner's approach was consistent with established legal principles.
The Full Bench ordered that the appeal be dismissed and that costs be paid by the appellant to the respondent.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: TEMPLEMAN J
In Yates Property Corporation Pty Ltd v Boland (2000) 179 ALR 664, Goldberg J noted that the "special circumstances" exception to the operation of the doctrine of issue estoppel had been doubted in Australia (as it had also in relation to Anshun estoppel: see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). In Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 504, Brennan J said he did not regard Wigram VC as advancing any exception to the doctrine of issue estoppel but as referring to the equity practice of the day which permitted an earlier judgment to be impeached in special circumstances. In O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 258, Brennan J referred to Arnold v National Westminister Bank PLC (supra) as a case which rested on "an uncertain foundation". In Linsley v Petrie [1998] 1 VR 427, the Victorian Court of Appeal considered a possible equitable exception to the doctrine of issue estoppel which might arise where (for example) an insurer who is subrogated to the rights of the insured, has conducted litigation in the insured person's name. In such circumstances, the insured person might be estopped from raising in subsequent litigation issues decided in earlier proceedings over which he or she had no control. Would equity intervene to prevent an injustice arising in such circumstances? That is not a question which this Court is required to answer because this is not a subrogation case. No doubt for that reason, counsel for Squires expressly disavowed any reliance on equity during the course of the argument (TS 73). In my view, the matters referred to in par (a) and (b) of the particulars of ground 8 of the grounds of appeal are not special circumstances in any event. The fact that Squires was indemnified by its insurer is, I think, irrelevant. That is because the insurer was undoubtedly Squires' privy and was therefore bound, irrespective of the extent of its involvement in the actual conduct of the proceedings. But in my view, all of this is academic. That is because at the hearing before the Commissioner, counsel for Squires accepted (correctly) that "estoppel is created by the decisions of review officers" (TS 7). Thus, the estoppel is equally binding on Squires and the insurer which is its privy. The contention in par (c) of the particulars of ground 8 is factually incorrect. It appears from Mr Watson's evidence that he had been aware of the exacerbation of Mr Turnor's symptoms by playing basketball in mid June 1998 (AB 209). Mr Watson referred to the basketball in a report dated 8 April 1999 to SGIO Insurance. In my view, therefore, there is no substance to ground 8. The factual error in ground 8 is carried forward into grounds 11 – 14 inclusive. In essence, it is contended in those grounds that the Commissioner made findings of fact against the evidence and relied on the evidence of Mr Watson when he should have preferred the evidence of Mr Philip Hardcastle and Mr Ratan Edibam, orthopaedic surgeons.