State of New South Wales (Sydney Local Health District) v Sun - [2024] NSWPICPD 68

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	State of New South Wales (Sydney Local Health District) v Sun [2024] NSWPICPD 68
APPELLANT:	State of New South Wales (Sydney Local Health District)
RESPONDENT:	Yun Sun
INSURER:	Employers Mutual Limited - TMF
FILE NUMBER:	A1-W2366/23
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	30 October 2024
ORDERS MADE ON APPEAL:	1. The appeal is dismissed. 2. The decision of the Member is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Sections 11A and 65A of the Workers Compensation Act 1987; determination with respect to weekly compensation and medical expenses does not prevent a subsequent claim for permanent impairment compensation; Res judicata estoppel; Anshun estoppel; Gimis v Tweed Shire Council [2023] NSWPICPD 44 and Cadbury Schweppes Pty Ltd v Davis [2011] NSWWCCPD 4 discussed and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms K Balendra, counsel
Turks Legal
Respondent:
Mr D Adhikary, counsel
Gerard Malouf & Partners
DECISION UNDER APPEAL:	Sun v State of New South Wales (Sydney Local Health District) [2023] NSWPIC 572
MEMBER:	Mr C Burge
DATE OF MEMBER’S DECISION:	30 October 2023

INTRODUCTION

The appeal is from a Certificate of Determination issued by the Personal Injury Commission (Commission) on 30 October 2023.
The Commission determined:
“1.     The [respondent] suffered a primary psychological injury in the course of his employment with the [appellant], with a deemed date of injury of 24 November 2021.
2.      As a result of the injury referred to in (1) above, the [respondent] suffered a 15% whole person impairment.
3.      The [appellant] is to pay the [respondent] the sum of $37,770 in respect of a 15% whole person impairment for his psychological injury with a deemed date of injury of 24 November 2021.”
The appeal is against the whole of the award. For the reasons that follow, the appeal is dismissed and the Member’s Certificate of Determination confirmed.

BACKGROUND FACTS AND MEMBER’S STATEMENT OF REASONS

The respondent was employed by the appellant at Canterbury Hospital as an Operating Theatre Assistant. On 2 August 2011 he sustained injury to the lower back, knees, left buttock and left hip.
He appears to have been off work for a period of two months, gradually returning to employment on light duties. He complained of a number of events during the period of light duty employment which resulted in the development of a psychological injury by way of anxiety and depressive disorder.
He commenced proceedings in the Workers Compensation Commission. Those proceedings were heard by Arbitrator Stanton on 17 June 2014.[1]
[1] Matter number 5255/13.
It is important to understand the case determined by Arbitrator Stanton.
In an ex tempore Judgment he said:
“This is an application which seeks weekly compensation benefits from the 13th of March, 2012 together with section 60 expenses in relation to the two assertions of injury as detailed in part 4 of the Application. As was noted earlier in this afternoon’s arbitration hearing injury on the 2nd of August, 2011 is said to have brought about the physical injuries described and is also said to have involved a consequential psychiatric-type disorder … what can be called a nature and conditions claim-type aggravation … particularised to harassment-type matters and is said to [lead to] a psychiatric-type injury.”[2]
[2] Transcript (T) of proceedings before Member Stanton dated 17 June 2024, matter no 5255/13, T 20.20–33.
In the course of submissions to Arbitrator Stanton, counsel for the appellant said this:
“Arbitrator, dealing with the psychological issue it is not in dispute that he suffers a psychological condition. For me to argue otherwise would be improper. The question really is, from the [appellant’s] point of view, is whether, in fact, section 11A on both discipline and performance is sustainable from the [appellant’s] point of view and in that respect, Arbitrator, I would be submitting that whilst there are a number of minimal red herrings around the central issues, the predominant issue is one of discipline and performance. I will be submitting that that is the whole and predominant cause of this man suffering a psychological condition.”[3]
[3] T 17.15–26.
On 20 June 2014, the then Workers Compensation Commission issued a Certificate of Determination which relevantly provided:
“(1) The Commission finds that:
(a)The [respondent] suffered personal injury to his low back, left hip and right knee in the course of his employment with the [appellant] on 2August 2011, such injury involving a disc bulge at L4/5 and the aggravation of degenerative changes.
(b)The [respondent] has consequentially developed an anxiety state and depressive disorder as a result of the injury on 2 August 2011.
(c)…..”
I have set out the determinations made by Arbitrator Stanton because in paraphrasing the orders it appears to me that the Member and the parties may have inadvertently confused what Arbitrator Stanton found with the provisions of s 65A of the Workers Compensation Act1987 (the 1987 Act) which was not in issue before Arbitrator Stanton.
For example, at [23] of the reasons in the current proceedings,[4] the Member says referring to Arbitrator Stanton’s decision that “once the Arbitrator was satisfied of the presence of a secondary psychological condition, it was not necessary for him to make findings either in favour or against the presence of a primary psychological injury.” (emphasis added)
[4] Sun v State of New South Wales (Sydney Local Health District) [2023] NSWPIC 572 (reasons).
Arbitrator Stanton was not concerned with “secondary” or “primary” psychological injuries. He did not find and was not required to find whether or not the respondent had sustained a primary or secondary psychological injury. He found the undisputed psychological injury to have developed “consequentially … as a result of the injury of 2 August 2011”.
On 24 November 2021, the respondent’s solicitor served on the appellant a claim for permanent impairment compensation in respect of 15% whole person impairment said to have arisen as a result of a primary psychological injury claimed to have a deemed date of 12 March 2012.
On 24 December 2021 the appellant issued a dispute notice in which it denied liability on the basis that the respondent’s permanent impairment resulted from a secondary psychological injury. Additionally, the appellant alleged that the respondent was estopped from claiming a primary psychological injury owing to the findings of Arbitrator Stanton in the previous proceedings, which it asserted was a clear finding of secondary psychological injury so the respondent was not entitled to any lump sum compensation. The appellant also alleged that the decision in the previous proceedings gave rise to a res judicata and an issue estoppel which prevented the respondent from alleging the psychological injury sustained by him on 12March 2012 was a primary psychological injury.
In the alternative, the appellant said that the respondent was estopped from bringing the present proceedings by reason of the decision of the High Court of Australia in Port of Melbourne Authority v Anshun Pty Limited.[5] The appellant’s assertion was that it was unreasonable for the respondent not to have pleaded a primary psychological injury in the earlier proceedings.
[5] [1981] HCA 45; 147 CLR 589 (Anshun).
Member Burge identified the issues in dispute as follows:
(a)    whether the findings of the Arbitrator in the previous proceedings gave rise to a res judicata estoppel;
(b)    whether the Arbitrator’s findings in the previous proceedings gave rise to an issue estoppel;
(c)    whether the manner in which the respondent brought the previous proceedings gave rise to an estoppel by conduct; and
(d)    whether the respondent is estopped from bringing those proceedings by virtue of an Anshun estoppel.
The Member, at reasons [18], quoted from the sound recording of Arbitrator Stanton’s decision at approximately 56.41 as follows:
“The [respondent] is describing the onset of the anxiety-type problem as occurring in the context of practical problems when endeavouring to return to work on suitable duties after the physical injuries he has sustained so in that sense, there is a causal chain of events which commences with the physical injury on 20 August, 2011 [sic]. … all of this is just an application of what Justice Kirby said in the well-known case of … Kooragang Cement Pty Limited v Bates (1994) 35 NSWLR 452].”
The Member quoted order (1)(b) set out above. He noted further that the respondent had not made any claim for permanent impairment compensation with respect to his psychological injury until a letter of claim from his solicitors was served on 24 November 2021.
The Member said:
“It is trite to say that an injured worker may suffer from both a primary and [secondary] psychological injury. In this matter, it is noteworthy the arbitrator made no finding or order which decided whether the [respondent] did or did not sustain a primary psychological injury. Whilst the arbitrator decided the [respondent] sustained a consequential psychological condition, in my view, the issue of whether the [respondent] has [sic] sustained a primary psychological injury remained extant.”[6]
[6] Reasons, [22].
In the following paragraph the Member said:
“… the arbitrator did not explicitly state the [respondent] was not suffering from a primary psychological injury, nor did he determine an award for the [appellant] with respect to such an allegation. Given the nature of the compensation sought in the earlier proceedings, once the Arbitrator was satisfied of the presence of a secondary psychological condition, it was not necessary for him to make findings either in favour or against the presence of a primary psychological injury.”[7]
[7] Reasons, [23].
The Member said that the Arbitrator left unresolved the defence pursuant to s 11A.[8] That conclusion on his part, with respect, is incorrect.[9] This is of no consequence in the context of the appeal because no ground of the appeal relates to this error.
[8] Reasons, [24].
[9] T 26.7–11; 26.33–27.2.
The Member said:
“There was no claim for permanent impairment compensation before the arbitrator in the previous proceedings. As such, it was not necessary for the arbitrator to decide for the purposes of the claim which was before him, whether a primary psychological injury had been sustained. Once the arbitrator determined the [respondent] had sustained a psychological issue [sic], that was sufficient for him to then consider the incapacity which resulted from that secondary injury together with those resulting from the physical incapacity.”[10]
[10] Reasons, [25].
After referring to Blair v Curran[11] and to a Presidential decision of the Commission, Gimis v Tweed Shire Council,[12] the Member said inter alia:
“… Nevertheless, the [respondent] submitted, and I accept that at no point did the arbitrator in the previous matter decide, nor has the [respondent] ever conceded, that there is no primary psychological injury in the present case.”[13]
[11] (1939) 62 CLR 464 (Blair v Curran).
[12] [2023] NSWPICPD 44, [45].
[13] Reasons, [29].
Dispositive of the appellant’s defence were the following:
“In this matter, I am of the view that the finding by the arbitrator in the previous proceedings that the [respondent] suffered from a secondary psychological injury does not preclude the presence of a primary psychological injury being litigated in the present matter. I am, on balance, not persuaded of the presence of a res judicata estoppel.
I am of the view that neither res judicata nor issue estoppel apply in this matter, as the arbitrator’s determinations in the previous matter relating to the nature of the psychological issues and the compensation awarded in the previous matter was not predicated upon the [respondent] having sustained, or not sustained, a primary psychological injury.”[14]
[14] Reasons, [31]–[32].
The Member dealt with the appellant’s defence based on Anshun estoppel and estoppel by conduct concluding that neither was made out.
He said:
“The [respondent] did not have the necessary evidence to bring a claim for permanent impairment compensation until such time as a medicolegal opinion existed as to the degree of his whole person impairment. Such a report did not exist at the time of the 2014 proceedings.
Likewise, I am not minded to accept the [appellant’s] submission that an issue estoppel applies. The [respondent] in this matter relies upon the [appellant’s] own independent medical examiner (IME) Dr Ingram in asserting the presence of a primary psychological injury. In my view, it cannot be said that the [appellant] relied upon the [respondent] bringing only a secondary psychological injury case in the previous proceedings or is prejudiced by the primary psychological condition now being pressed.”[15]
[15] Reasons, [34]–[35].
In the event the Member rejected the appellant’s defences based on estoppel, res judicata, Anshun estoppel and estoppel by conduct.[16] As there were no other defences raised, the Member entered the award for the respondent.
[16] Reasons, [36].

GROUNDS OF APPEAL

The appellant complains about the findings at [22], [23], [25], [29], [31] and [32] of the reasons. Specifically, the appellant relies upon the following grounds of appeal:
“1.     The Appellant alleges that the Member made the following errors of fact relating to the findings of Arbitrator Stanton in the previous proceedings, specifically:
(a)A finding that Arbitrator Stanton made no finding or order which decided whether the [respondent] did or did not sustain a primary psychological injury and that the issue of whether the worker has sustained a primary psychological injury remained extant (at [22]).
(b)A finding that Arbitrator Stanton’s determinations in the previous matter [were] not predicated upon the worker having sustained or not sustained a primary psychological injury (at [32]).
(c)A finding that at no point did Arbitrator Stanton in the previous matter decide that there was no primary psychological injury in the present case (at [29]).
2.     The Appellant alleges that the Member made the following errors of law relating to the task that Arbitrator Stanton was required to undertake in the previous proceedings:
(a)A finding that once the Arbitrator was satisfied of the presence of a secondary psychological condition it was not necessary for him to make findings either in favour or against the presence of a primary psychological injury (at [23]).
(b)A finding that it was not necessary for the Arbitrator to decide for the purpose of the claim which was before him, whether a primary psychological injury had been sustained (at [25]).
(c)A finding that the finding by the Arbitrator in the previous proceedings that the [respondent] suffered from a secondary psychological injury does not preclude the presence of a primary psychological injury being litigated in the present matter (at [31]).
3.     The Appellant alleges that as a consequence of these errors the Member erred in finding that no estoppel arose in relation to the worker’s claim for a primary psychiatric injury.”

THRESHOLD MATTERS

The Certificate of Determination is dated 30 October 2023. The appeal was commenced within time. There is no dispute that the monetary threshold in s 352(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) is satisfied.

ON THE PAPERS

The parties agree that it is appropriate for the appeal to be determined on the papers.
Section 52(3) of the Personal Injury Commission Act2020, together with Procedural Directions PIC2 and WC3, provide that I may be satisfied that the documents and the submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied in this matter and propose to determine the matter on the papers without holding any conference or formal hearing.

NATURE OF THE APPEAL

The appellate jurisdiction conferred by s 352 of the 1998 Act relevantly provides:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error or fact, law or discretion, and to the correction of any such error. The appeal is not a review or a new hearing.”

PROCEDURE

The parties agree that it is appropriate to have regard to the transcript of the hearing before Arbitrator Stanton. An official transcript has been provided, as well as a transcript provided by an independent transcriber. For the purpose of the appeal a direction was issued to the parties to advise as to whether there were any material differences between the two transcripts.
I am informed that there are none. For the purpose of this decision, I refer to the official Commission transcript.

GROUND 1 – ERRORS OF FACT

Appellant’s submissions

Under the heading “The Findings of the Previous Proceedings” the appellant submits that s 65A(5) of the 1987 Act provides a definition of primary and secondary psychological injuries. The appellant then quotes s 65A(5) and submits that causation of the psychological injury is therefore the determinative factor as to whether a psychological injury can properly be described as primary or secondary psychological injury.
The appellant notes that Arbitrator Stanton commenced with the proposition that there were two injurious mechanisms:
“the first one … on the 2nd of August, 2011 is asserted to be productive of psychiatric injury in addition to the physical injuries and the second which involves [assertions of] bullying and harassment … only involves an allegation of psychiatric injury.”[17]
[17] T 1.28–2.1.
It is submitted that Member Burge confirmed this understanding of the matter before Arbitrator Stanton.
The appellant then submits:
“From the commencement of the proceedings before Arbitrator Stanton therefore, there were two separate allegations of psychological injury brought in relation to the claim. One which was described ‘in addition to the physical injuries’ which falls within the definition of a secondary psychological injury pursuant to s 65A. The other was a bullying and harassment claim which clearly is a primary psychological injury.”[18]
[18] Appellant’s submissions, [9].
The issue that was clearly raised and subject to extensive submissions in the proceedings before Arbitrator Stanton was s 11A of the 1987 Act as it applied to the worker’s psychological claim.
The appellant submits:
“Self-evidently the operation of s 11A is directed to a primary psychological injury and not a secondary psychological injury.”[19]
[19] Appellant’s submissions, [11].
The appellant quotes[20] from Arbitrator Stanton’s ex tempore decision in part:
“… the gist of the [respondent’s] evidence is that the [appellant] was requiring him to do work which did not properly conform with those restrictions or was testing the boundaries of those rather more than prudence would dictate. As a consequence of this he described in essence becoming anxious and concerned and frustrated at what was occurring, and he then commenced to experience what I don’t think there is much a dispute about mental symptoms properly described as symptoms of anxiety and depression.”
[20] Appellant’s submissions, [12].
After quoting from Arbitrator Stanton’s decision to the effect that the appellant did not dispute the existence of anxiety and depressive type symptoms but rather pressed the defence under s 11A, the appellant submits:
“It is clear therefore that Arbitrator Stanton was evaluating the cause of the worker’s undisputed psychological condition and is examining the evidence with respect to causation.”[21]
[21] Appellant’s submissions, [14].

The appellant quotes from the Arbitrator’s decision dealing with the report of Dr Robertson, quoting the relevant passage from [18] of Member Burge’s reasons, and submits:
“While Arbitrator Stanton did not use the words ‘primary’ or ‘secondary’ psychological condition, found in s 65A, what is apparent is that in both his examination of the evidence and his examination of the relevant case law, his main consideration was the cause of the worker’s psychological condition.”[22]
[22] Appellant’s submissions, [15].
The appellant submits that in finding as he did, even though he did not explicitly say so, “Arbitrator Stanton was in fact considering the definitions in s 65A of the [1987 Act] as it applied to the matter before him”. The appellant submits that Arbitrator Stanton found in particular that the psychological injury arose as a consequence of a physical injury. It is submitted:
“The finding that ‘there’s a causal chain of events which commences with the physical injury on 2 August 2011’ makes it apparent that Arbitrator Stanton considers the psychological injury is secondary in nature.”[23]
[23] Appellant’s submissions, [16].
In relation to Ground 1(a) relating to the Member’s decision at reasons at [22], the appellant submits that “Arbitrator Stanton, in determining causation of the worker’s psychological condition did make a determination that the worker suffered a secondary psychological condition. The issue of whether the worker has sustained a primary psychological condition is therefore not extant but has been finally determined.”[24]
[24] Appellant’s submissions, [18].
In relation to Ground 1(b) relating to the Member’s finding at reasons [32], the appellant submits that Arbitrator Stanton’s determination regarding the worker’s psychological condition in the previous proceedings was in relation to the issue of causation of the condition. In finding that the psychological injury was causally related to the worker’s physical injury, Arbitrator Stanton did make a determination as to whether or not the worker had sustained a primary psychological injury. By attributing causation in the way that he did, Arbitrator Stanton found that the worker had not sustained a primary psychological injury.
In relation to Ground 1(c) relating to the Member’s decision at reasons [29], the appellant submits that once the attribution of the cause of the worker’s psychological injury had occurred, Arbitrator Stanton had in effect made a determination under s 65A that the worker had not suffered a primary psychological injury.

Respondent’s submissions Ground 1

The respondent submits that before Arbitrator Stanton the dispute was not in respect of the nature of the psychological injury or causation with respect to same. The claim for compensation was not for permanent impairment. The claim before Arbitrator Stanton was weekly compensation and treatment expenses so there was no need to engage in an inquiry pursuant to s 65A of the 1987 Act.
The respondent points out that the appellant’s counsel conceded before Arbitrator Stanton the presence of an injury and the dispute proceeded on the basis of an analysis of s 11A(1) of the 1987 Act. Furthermore, the Arbitrator considered the defence under s 11A(1) and found against the appellant.
The Arbitrator did not find that a primary psychological injury had not been sustained. Nor did the Arbitrator find that the appellant’s s 11A(1) defence failed because the only psychological injury the respondent had sustained was a secondary psychological condition. The Member’s interpretation and analysis of Arbitrator Stanton’s reasons divulged no error and the Member’s findings are not erroneous.
Dealing with the separate Ground 1(a), the respondent submits that Arbitrator Stanton did not make a determination about causation as alleged by the appellant. Rather the Arbitrator determined that the defence under s 11A failed because:
(a) the whole or predominant cause of injury did not satisfy the discipline or performance appraisal concepts, and
(b) the appellant failed to discharge the onus with respect to the defence.
Even if the above is not accepted, the respondent submits that Arbitrator Stanton did not finally determine whether the respondent had sustained either a primary or secondary psychological condition.
The reasons of the Member should not be scrutinised with an overzealous review. The respondent quotes from SZCBT v Minister for Immigration and Multicultural Affairs.[25]
[25] [2007] FCA 9, [26].
The respondent submits that the Arbitrator did not make a determination that the respondent had not sustained a primary psychological injury. He refers to the observation by the Member at reasons [23] and concludes that Member Burge did not commit any error of fact as alleged by the appellant in these circumstances.
In relation to Ground 1(b) the respondent notes the appellant’s counsel conceded before Arbitrator Stanton that injury was not in dispute. The submission which the appellant raised with respect to the psychological condition was limited to s 11A. The appellant’s then counsel did not address whether the psychological condition was primary or secondary, the focus was appropriately upon the s 11A defence. It was therefore unnecessary for the Arbitrator to make an exhaustive determination as to the nature of the psychological injury sustained by the respondent. Rather, he focused on the s 11A defence and determined a secondary psychological condition had been sustained.
Furthermore, the type of compensation claimed and awarded to the respondent was not dependent on the nature of the psychological injury.
The respondent makes the point:
“… the Appellant has also not disputed the proposition, noted by Member Burge at [22], that a worker can have sustained both a primary and secondary psychological injury.”[26]
[26] Respondent’s submissions, [30].
The respondent submits in Ground 1(b) that the appellant has conflated the purported errors identified in Grounds 1(a) and 1(c).
The respondent submits that Arbitrator Stanton did not determine:
(a)    the nature of the psychological injury; and/or
(b)    that the respondent has not sustained a primary psychological injury; and
(c)    that the respondent had sustained a secondary psychological injury that prevented the respondent from having sustained a primary psychological injury because the two types of injury are not exclusionary.
In relation to Ground 1(c) the respondent submits that the construction advanced by the appellant is not available because the Arbitrator did not find the respondent had sustained a primary psychological injury. It is submitted the Arbitrator did not question the distinction between a primary or a secondary psychological injury and did not refer to s 65A of the 1987 Act either. There was no reason for the Arbitrator to have made findings with respect to primary or secondary psychological injury.
The respondent submits that there is “no ‘cause of action’ for workers compensation. The Act creates a number of rights which a worker is entitled to pursue independently of other rights” and that the appellant does not grapple with that proposition.[27]
[27] Respondent’s submissions, [41], citing Israel v Catering Industries (NSW) Pty Ltd [2017] NSWWCCPD 53.
The respondent submits that “the ‘attribution of the cause of the worker’s psychological injury’ stated by the Appellant in its submissions at [20], needs to be viewed in this context and the context of the claim for compensation that was before Arbitrator Stanton.” The respondent submits the Member did not commit the errors of fact in reaching the conclusions he did.[28]
[28] Reasons, [42]–[43].

Appellant’s submissions in reply Grounds 1 and 2

In reply, the appellant submits that the respondent’s submissions are predicated on a failure to grapple with the findings that Arbitrator Stanton did make, namely, that the actions of the employer were not the whole or predominant cause of the worker’s psychological symptoms but rather were part of a causal chain of events which commenced with the physical injuries. The appellant submits that Arbitrator Stanton determined the s 11A issue not on a causation basis. Arbitrator Stanton determined the precise nature of the injury.
In particular the appellant submits that the respondent has failed to have regard to the parallel drawn by Arbitrator Stanton between the matter before him and the case of Cadbury Schweppes Pty Ltd v Davis[29] where, as Arbitrator Stanton noted, “the physical injury set in chain a series of events … when it was found … that those psychiatric symptoms were resulting from the original physical injury.” The appellant reiterates its submission that Arbitrator Stanton, albeit dealing with a different question, did determine the issue of causation and by extension whether or not the respondent had suffered a primary or secondary injury.
[29] [2011] NSWWCCPD 4 (Davis).

Consideration

It is necessary to understand the purpose and meaning of the definitions of “primary” and “secondary” psychological injury contained in s 65A.
Section 65A is contained in Division 4 of the 1987 Act. Division 4 provides for permanent impairment compensation. The purpose of s 65A is the preclusion of the payment of permanent impairment compensation that results from “secondary psychological injury”.
Subsection (5) provides interpretation for s 65A as follows:
“In this section—
Primary psychological injury means a psychological injury that is not a secondary psychological injury.
…
Secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury.”
Subsection (5) does not provide an interpretation of secondary injury for the 1987 Act generally or for other Divisions of the 1987 Act.
Arbitrator Stanton was not concerned with permanent impairment compensation under Division 4.
Arbitrator Stanton found Mr Sun’s psychological injury was sustained in the context of practical problems when endeavouring to return to work on suitable duties (see [18] above). He saw this as a causal chain in the sense contemplated in Kooragang Cement Pty Limited v Bates.[30] The Arbitrator made this determination for the purpose of determining whether Mr Sun was entitled to weekly compensation for total or partial incapacity or medical expense that “results from” the injury of 2 August 2011.
[30] (1994) 35 NSWLR 452.
Arbitrator Stanton referred to Davis as analogous to the case before him.
In Davis, Mrs Davis sought weekly compensation and lump sum compensation for injuries to the neck, back, left leg, sexual organs, anxiety and depression. An initial claim was settled on 9 October 2006 on the basis that the claim for weekly compensation was discontinued and the claim for lump sum compensation referred to an Approved Medical Specialist (AMS). On 30 November 2006 an AMS provided a report and the parties on 22 December 2006 settled the claim for lump sum compensation in respect of her physical injuries and pain and suffering.
In October 2008 Mrs Davis’ solicitors claimed compensation for psychological injury (anxiety and depression) that allegedly resulted from her fall.
The Arbitrator said the issue before her was “whether or not the Applicant’s psychological condition is an injury within the meaning of s 4 and s 9A of the 1987 Act”. Roche DP found this to be an error.
On appeal Roche DP said this:
“28. Both Cadbury’s submissions and the Arbitrator’s finding (that Ms Davis suffered a psychological injury pursuant to s 4 of the 1987 Act) demonstrate a fundamental misunderstanding of workers compensation principles. That misunderstanding started with the initial notice of claim that (apparently) alleged that Ms Davis had received a psychological injury on 23 August 2000 and continued in the pleadings, which repeated that allegation.
29. However, at the arbitration, Ms Davis’s counsel made it clear that, consistent with the authorities, his case was that Ms Davis’s psychological condition resulted from her undisputed physical injuries on 23 August 2000 ... He did not submit that, on 23 August 2000, Ms Davis had received a psychological injury within the meaning of s 4.
…
31. The issue is not whether Ms Davis received a ‘psychological injury’ on 23 August 2000, but whether her incapacity and/or need for hospital and medical treatment have resulted from the physical injuries received on that day. As Ms Davis’s psychological condition is not a s 4 ‘personal injury’, there is no need to satisfy the test in that section. Nor is there any need for employment to be a substantial contributing factor to her psychological condition. Employment does not have to be a substantial contributing factor to the incapacity or need for medical treatment (Rootsey v Tiger Nominees Pty Ltd (2002) 23 NSWCCR 725). The issue is a straightforward causation dispute.”
In other words, what Arbitrator Stanton was adverting to in his remarks was the notion that for the purpose of determining incapacity and entitlement to s 60 expenses, the test is whether the incapacity results from the work injury.
Arbitrator Stanton determined that the defence based on s 11A failed because the appellant had not established that the respondent’s psychological injury was wholly or predominantly caused by reasonable action on the part of the employer with respect to discipline etc.
The appellant’s general submissions confuse the purpose for which Arbitrator Stanton determined that the psychological injury was consequential upon the physical injuries of 2 August 2011. What he determined was that the respondent’s then incapacity was the result of the 2 August 2011 injury. He made no determination for the purpose of awarding permanent impairment compensation.
Furthermore, s 65A is concerned with “secondary psychological injury” which results from the psychological consequence of the physical injury. A psychological condition which develops as a consequence of bullying, harassment and the like following return to work on suitable duties is a different injury: Cannon v The Healthy Snack Food Pty Limited[31] where Roche DP explained the difference at [101]–[103] as follows:
“101. To say that a psychological injury that results from harassment while on suitable duties would not have happened ‘but for’ the physical injury is to ignore the fact that the harassment (if it occurred) is an event that is ‘extraneous or extrinsic’ (per McHugh J in Bennett v Minister of Community Welfare (1992) 176 CLR 408 at 428) to the original back injury. It is not part of the ‘series of events’ that have followed from the back injury and it is not part of the causal chain.
…..
103. Therefore, if a worker on suitable duties, because of a work related physical injury, develops a psychological injury as a result of harassment while on those duties, the resulting psychological injury has not arisen as a consequence of, or secondary to, the physical injury, but has resulted from the harassment. Section 65A is intended to prevent the double recovery of lump sum compensation in circumstances where a worker has suffered a physical injury and, as a consequence of that physical injury (the pain and/or discomfort and/or loss or impairments caused by that injury), has developed a secondary psychological condition. It does not prevent recovery of lump sum compensation in circumstances where, as a result of a physical injury, a worker is placed on suitable duties and, as a result of an ‘extraneous or extrinsic’ event, such as harassment or bullying while on those duties, develops a psychological injury.”
[31] (2009) NSWWCCPD 32.
In the present matter the existence of a psychological injury was not disputed before Arbitrator Stanton. The defence advanced before Arbitrator Stanton was on the basis of s 11A that the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to matters such as performance appraisal and discipline. That defence was only consistent with a conclusion that the admitted psychological injury was an injury within the meaning of s 4 of the 1987 Act. The appellant’s submission at [11] (see [41] above) is against its success in the appeal because the defence before Arbitrator Stanton based on s 11A could only relate to a primary psychological injury.
The appellant’s case before Member Burge in this matter was inconsistent with the case advanced by it before Arbitrator Stanton. Before Arbitrator Stanton, there was no case based on a finding that the psychological injury was a “secondary psychological injury” as defined in s 65A(5). Furthermore, a case premised on a “secondary psychological injury” as defined in s 65A(5) would have been inconsistent with the defence based on s 11A: Davis.
The psychological injury found by Arbitrator Stanton was not a secondary injury within the meaning of s 65A(5). Indeed, on the concessions made by the appellant before Arbitrator Stanton, a defence based on a secondary injury within s 65A(5) could never have been sustained.
Having regard to the above, it can be seen the specific errors of fact asserted in Grounds 1(a) to (c) by the appellant are not made out. Arbitrator Stanton did not make any finding with respect to whether there was or was not a primary psychological injury. The issue was not before him because it was not in issue before him or was implicitly conceded by the reliance on the s 11A defence.
Ground 1 of the appeal is dismissed.

GROUND 2 – ERRORS OF LAW

Appellant’s submissions Ground 2(a)

The appellant submits that there were two injurious mechanisms described at the commencement of the proceedings before Arbitrator Stanton and that what s 11A goes to is the issue of whether the defence is available for a primary psychological injury. The Arbitrator was required to properly consider the issues before him, including whether the worker suffered a primary or secondary injury.
The appellant submits [22]:
“The Arbitrator made a clear finding, with respect to the evidence before him, that the issue of s 11A did not arise due to his findings as to the causation of injury. He did therefore do what was required of him, that is make findings in relation to whether the worker suffered a primary or secondary psychological injury.”[32]
[32] Appellant’s submissions, [22].

Appellant’s submissions Ground 2(b)

The appellant submits that the clear issue in the proceedings before Arbitrator Stanton was whether or not s 11A applied to the worker’s psychological injuries. Given the manner in which the proceedings were run, it was a matter in issue as to whether the primary or secondary psychological injury had been sustained. It was therefore necessary for the Arbitrator to resolve for the purposes of the claim before him whether or not the worker had sustained a primary psychological injury.

Appellant’s submissions Ground 2(c)

The appellant submits that whether or not the matter gives rise to a res judicata or an issue estoppel was considered in Blair v Curran. The appellant quotes from paragraph [47] of the High Court decision in Blair v Curran that the “distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into the judgment, … in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”
The appellant then refers to Carl Zeiss Stiftung v Rayner & Keeler Limited (No. 2)[33] where Lord Guest said that issue estoppel will not arise unless the following components are satisfied:
“that the same question has been decided; that the judicial decision which is said to create the estoppel was final; and that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”
[33] [1967] 1 AC 853, 935.

The appellant submits:
“In these proceedings the question of whether or not the worker has suffered from primary psychological injury has been decided as the Arbitrator attributed the cause of the worker’s psychological injury to his physical injury and not to the claimed bullying and harassment … Any attempt to make a determination as to whether or not the worker suffers a primary psychological condition will inevitably require a determination on causation, a matter which has already been determined by Arbitrator Stanton in the earlier proceedings. That determination was made in circumstances such that it was final and therefore created an estoppel. The parties to that determination are the same as those in the current proceedings.”[34]
[34] Appellant’s submissions, [26].

Respondent’s submissions Ground 2(a)

The respondent submits that Arbitrator Stanton, despite determining the respondent had sustained a secondary psychological condition, did not find against the respondent with respect to s 11A on the basis that the respondent had not sustained a primary psychological injury. The respondent quotes Arbitrator Stanton’s decision to the effect: “Ultimately the opinion in that report, I think, falls far short of enabling the employer’s onus in section 11A to be satisfied.”[35]
[35] T 24.30–32.
The respondent submits that the Arbitrator’s consideration of the s 11A defence did not demonstrate he had concluded against a primary psychological injury because his treatment of the 11A defence was not predicated upon such a conclusion. Rather, the Arbitrator did make a note of a component of the respondent’s injury not being consequential of his physical injury. Nowhere in the Arbitrator’s reasons is it apparent that a finding against a primary psychological injury has actually been made. Again, the Arbitrator did not need to reach such a conclusion given the claim for compensation before him and the limited dispute before him pertaining to s 11A of the 1987 Act.
The respondent refers to Marr (Contracting) Pty Limited v White Constructions (ACT) Pty Limited,[36] which in turn quoted from O’Donel v Commissioner for Road Transport and Tramways (NSW)[37] to the effect the estoppel must reach the target. It will not be “eked out by inferences from further facts”.
[36] [1991] FCA 694 (Marr Contracting).
[37] (1938) 59 CLR 744, 758–759 per Latham CJ; 763 per Evatt J.
Relying on those authorities, the respondent submits the findings by the Arbitrator created an estoppel with respect to specific propositions found, there is no estoppel created by the Arbitrator’s findings with respect to primary psychological injury. This is so because no such findings were made.
Furthermore, the respondent submits that the determination of Member Burge was made on the basis of evidence which was not available to Arbitrator Stanton, specifically the report of Dr Lee Ingram dated 14 June 2018 which was obtained by the appellant. It follows that the specific proposition that Arbitrator Stanton had to determine was not the same specific proposition before Member Burge.
That is, Arbitrator Stanton did not have to determine, and indeed did not determine, whether the respondent had sustained a primary psychological injury or not.

Respondent’s submissions Ground 2(b)

The respondent submits that Member Burge’s remarks at [25] were taken out of context. The Member was addressing the claim for compensation that was before Arbitrator Stanton, he was not addressing the dispute as to liability raised by the appellant before Arbitrator Stanton.

Respondent’s submissions Ground 2(c)

As to Ground 2(c), the respondent says that it is unclear which ground is relied upon, issue estoppel or res judicata, but assumes that it is the appellant’s proposition that Member Burge erred in not finding an issue estoppel defeated the respondent’s claim. (Confirmed in the appellant’s submissions in reply.)
The respondent submits the appellant has not taken issue with the Member’s findings that a worker can have sustained both a primary and secondary psychological injury. But for the reasons submitted, Arbitrator Stanton did not decide causation of the injury as a whole. He did not need to because of the appellant’s concession. The Arbitrator’s discussions as to causation were for the purpose of determining whether the conceded psychological injury was wholly or predominantly caused by reasonable disciplinary performance matters within the s 11A defence.
The respondent cites Thompson v George Weston Foods Ltd,[38] Blair v Curran and Marr Contracting and submits:
“Member Burge did not fall into any error as alleged by the Appellant because Arbitrator Stanton had not decided the same question. Accordingly, ‘the issue of whether the [respondent] has sustained a primary psychological injury remained extant’ (at [22]. See also [23]–[32]). This conclusion was correct, it is submitted, when Arbitrator Stanton’s reasons are read as a whole.”[39]
[38] [1990] NSWCC 18; 6 NSWCCR 370 (Thompson).
[39] Respondent’s submissions, [69].
The respondent submits that the Arbitrator was not required to determine a primary psychological injury and that the appellant’s qualified evidence demonstrates that he has sustained a primary psychological injury.
The respondent quotes from Habib v Radio 2UE Sydney Pty Limited[40] at [73]. The respondent submits further that there is no single cause of action for workers compensation and the respondent was not precluded from pursuing rights alternate to or further to those he pursued before Arbitrator Stanton. Furthermore, as Member Burge correctly noted, Arbitrator Stanton had not decided that the respondent did not sustain a primary psychological injury.
[40] [2009] NSWCA 231.

Consideration

Contrary to the appellant’s submissions, so far as I can see in the proceedings before Arbitrator Stanton the appellant advanced an argument that the undisputed psychological injury was defeated by the defence based on s 11A. For the reasons given above that meant the appellant conceded that the psychological injury was an injury for the purpose of s 4. That in turn meant that the Arbitrator was not required to determine whether the respondent had sustained a psychological injury.
Furthermore, the defence before Arbitrator Stanton based on s 11A was inconsistent with the psychological injury being a secondary injury.
The Member was correct in his conclusion that Arbitrator Stanton was not required to determine whether the psychological injury was a primary or secondary injury or that the finding that the psychological injury was a consequence of the events of 2 August 2011 precluded in these proceedings agitation of the claim on the basis that the injury was a primary psychological injury.
The respondent is correct that Arbitrator Stanton did not find against the appellant on the basis of the characterisation of the psychological injury, rather he found that the defence based on s 11A failed because while some element of the injury may have been caused by “matters of performance appraisal or discipline they [were] certainly not the whole causes of the problem and nor [did he] think they really [were] the predominant cause of the problems”.[41]
[41] T 26.6–11.
The respondent is likewise correct to point out the evidence before the Member on this occasion was not available before Arbitrator Stanton.
The denial of the defence based on an alleged res judicata was correct because the determination of Arbitrator Stanton with respect to weekly compensation and medical expenses did not prevent a subsequent claim for permanent impairment compensation.
The defence based on issue estoppel failed because Arbitrator Stanton and Member Burge dealt with separate issues. The former whether the claim for weekly compensation due to the incapacity that resulted from the physical and conceded psychological injury(s) was defeated by s 11A. The latter whether the respondent was entitled to permanent impairment compensation: Thompson.
The submission based on estoppel by conduct works against the appellant because the appellant’s defence in the present matter is, as explained above, inconsistent with the s 11A defence run before Arbitrator Stanton.
Finally, the submission based on Anshun fails because the evidence to support the present claim was not available to the respondent when the claim before Arbitrator Stanton was determined. It was therefore not unreasonable for the claim not to be made at that time.[42]
[42] Miller v Secretary, Department of Communities and Justice [2022] NSWCA 190, [127]; [135].
The errors of law asserted in Ground 2 of the appeal are not established. Ground 2 of the appeal is dismissed and fails.

GROUND 3

Ground 3 of the appeal does not raise any separate complaint. It is therefore dismissed.

CONCLUSION

The appeal is dismissed. The decision of the Member is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

30 October 2024