Tomasevic v State of Victoria
[2018] VSC 428
•3 August 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
| AT MELBOURNE | |
| COMMON LAW DIVISION | |
| PERSONAL INJURIES LIST |
S CI 2010 01155
| MILAN TOMASEVIC | Plaintiff |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF EDUCATION & EARLY CHILDHOOD DEVELOPMENT) (formally known as DEPARTMENT OF EDUCATION) | Defendant |
---
JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 August 2018 |
DATE OF RULING: | 3 August 2018 |
CASE MAY BE CITED AS: | Tomasevic v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2018] VSC 428 |
---
ESTOPPEL — Issue estoppel — Whether same question decided in earlier proceeding — Findings by County Court in claim for weekly payments for work injury — Subsequent common law claim — No issue estoppel.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram and Dr J Plunkett | Antony Sdrinis & Co. |
| For the Defendant | Mr S O’Meara QC and Ms K Manning | Minter Ellison |
HIS HONOUR:
Mr Tomasevic sues the State of Victoria for negligence by exposing him to a reasonably foreseeable risk of psychiatric injury occurring on and from 20 October 1999 in his employment as a teacher at Deer Park Secondary College.
Keogh J ordered that the proceeding be listed on 1 August 2018 for the determination of the estoppel pleaded in paragraph 28 of the further amended statement of claim. The trial is listed to commence on 13 August 2018.
Paragraph 28 pleads:
Each of the matters referred to in paragraphs 10−22 whilst a finding of fact made by Judge Howie in reasons for judgment delivered 2 November 2007 in proceedings to which the Plaintiff and the Defendant were parties and necessary for the determination then made that the Plaintiff in fact had suffered compensable injury in the course of his employment and that:
(a)the Plaintiff’s injury, being an illness or disorder of mind, were caused by stress due to the charges of unsatisfactory performance and serious misconduct brought against him by the Defendant;
(b)the procedures followed by the Defendant with respect to those charges and the procedures followed by the Defendant with respect to the Plaintiff’s allegations against Wood and the school resulted in the Plaintiff being not able to work either in his pre-injury employment or in suitable employment and that he had any capacity for work arising from his injuries in the period 21 August to 21 November 2000 and 11 May, 2002 to 8 August 2003;
(c)further that the actions of Van Halen were not for a purpose to transfer, the notes [sic], discipline, redeploy, retrench or dismiss the Plaintiff and accordingly, the Plaintiff’s injuries did not arise either wholly or predominantly from actions taken to discipline him; and
(d)the action taken by Van Halen to discipline the Plaintiff was not reasonable action taken in a reasonable manner and further that by prejudging his guilt without notice, refusing his request for particulars, not giving him the opportunity to be heard, influencing the assessment of Dr Strauss, the Defendant’s actions fell far short of reasonable action taken in a reasonable manner –
and the defendant is now estopped from denying of foregoing matters in this proceeding.
The defendant by paragraph 28 of its defence denies that an estoppel exists and the plaintiff seeks the striking out of that paragraph.
In the proceeding before Judge Howie the plaintiff sought weekly payments pursuant to the Accident Compensation Act 1985.[1] In this proceeding, the defendants were the Department of Education and Training (as it was then called) and CGU Workers Compensation (Vic) Limited. The plaintiff pleaded that he had sustained injuries, namely stress and depression, arising out of or in the course of his employment with the first defendant to which his employment was a significant contributing factor. He pleaded that his claim for compensation had been rejected.
[1]Tomasevic v Department of Education & Training [2007] VCC 1512.
Judge Howie ordered that the defendants pay the plaintiff compensation in the form of weekly payments for the periods 21 August 2000 to 21 November 2000 and 11 May 2002 to 8 August 2003, together with interest and reasonable medical and like expenses in accordance with the provisions of the Accident Compensation Act 1985. Judge Howie stated his conclusions as follows:
[29] I am satisfied that during the periods from 21 August 2000 to 21 November 2000 and from 11 May 2002 to 8 August 2003, the plaintiff suffered from a mental injury, being a depressive disorder, arising out of or in the course of his employment and with respect to which his employment was a significant contributing factor. I am satisfied that the plaintiff’s injury, being an illness or disorder of the mind, was caused by stress due to the charges of unsatisfactory performance and serious misconduct brought against the plaintiff by his employer, the procedures followed by his employer with respect to those charges, and the procedure followed by his employer with respect to the plaintiff’s allegations against a fellow teacher and the school. I am satisfied that during these periods the plaintiff was not able to work either in his pre-injury employment or in suitable employment and had an incapacity for work arising from his injury.
[30] In my opinion the plaintiff is not prevented from receiving payment of compensation by subsection (2A) of section 82 for two reasons. First, a significant cause of the stress which caused the plaintiff’s depressive disorder was the manner in which his employer dealt with his complaint of misappropriation of money. The action taken by his employer about that matter was not for a purpose stated in paragraph (a), that is, to transfer, demote, discipline, redeploy, retrench or dismiss the plaintiff. Accordingly, it cannot be said that the stress causing the illness or disorder of the plaintiff’s mind arose either wholly or predominantly from action taken to discipline him. Secondly, for the reasons already given, I do not consider the action taken by the employer to discipline the plaintiff was reasonable action taken in a reasonable manner. The expression “reasonable action taken in a reasonable manner” is a composite expression, which requires not only that the taking of action be reasonable but that the manner of taking the action be reasonable. In my opinion, the manner in which the employer took action to discipline the plaintiff, by prejudging his guilt without notice, refusing his request for particulars, not giving him the opportunity to be heard, and influencing the assessment of Dr Strauss, fell far short of reasonable action taken in a reasonable manner.
During the hearing the plaintiff provided a document setting out the pleaded facts found by Judge Howie said to give rise to an issue estoppel in this proceeding. The document listed these pleaded facts by reference to the relevant paragraph of their statement of claim. The document states:
Matters alleged to give rise to issue estoppel
Paragraph 10
That Dr Strauss received a letter of instruction from Van Halen dated 4 August 2000.
Paragraph 11
That Van Halen:
(a)pre-determined that the Plaintiff’s performance had been unsatisfactory without specifying any act or particular of wrong doing and without specifying any evidence to support such determination;
(b)pre-determined that the Plaintiff had engaged in serious misconduct without specifying any act or particular of wrong doing and without specifying any evidence to support such determination;
(c)required the Plaintiff to attend a psychiatric examination by Dr Strauss without specifying any basis for the undertaking of such examination; and
(d)referred the Plaintiff’s allegation for investigation by Chandler who was within a departmental hierarchy against which the Plaintiff was making allegations, including the failure by Brown and Van Halen to investigate adequately or at all the actions of Wood.
Paragraph 13
That Van Halen failed or refused to provide the plaintiff with specific details of his alleged wrong doing, of what he was being accused of saying to whom, of his alleged inappropriate behaviour and any alleged threatening behaviour either at any time.
Paragraph 19
(a)That the letter Van Halen wrote to Dr Strauss dated 4 August 2000 detailed his allegations, observations and opinions with respect to the Plaintiff; and
(b)the subsequent report dated 10 August 2000 prepared by Dr Strauss was influenced by those allegations, observations and opinions.
Paragraph 20
That after Van Halen directed the plaintiff to absent himself from work, the plaintiff was thereafter suspended from his duties at the Western Metropolitan Regional office of the Department and was absent from work on sick leave.
The findings of Judge Howie that were said to give rise to an issue estoppel were contained in paragraphs 8 to 12 and 30 of his Honour’s judgment. Those paragraphs, together with paragraph 7, state:
[7]For reasons that I raise with the plaintiff and Mr Trigar in the course of the trial, having had the opportunity to consider the documents that had been tendered, and to hear the evidence of the plaintiff and the evidence in chief of Mr Van Halen, and having had the opportunity to ask Mr Van Halen some questions, I form the view that the action taken by the employer to discipline the plaintiff was not reasonable action taken in a reasonable manner within the meaning of that expression in sub-section (2A).
[8]It is appropriate to outline those reasons. Mr Van Halen’s letter to the plaintiff of 17 May 2000 not only charged the plaintiff with unsatisfactory performance as a teacher and with serious misconduct, it expressed the judgment of Mr Van Halen that each of these charges had been proved. The letter informed the plaintiff that he was not performing to the required standard, that Mr Van Halen considered his performance unsatisfactory and unacceptable, and that his verbal comments had been most inappropriate. It was implicit in the letter, if not express, that Mr Van Halen had concluded that the plaintiff was guilty not only of unsatisfactory performance but of serious misconduct. Mr Van Halen confirmed in his evidence that was the judgment he had made. It was a judgment made without giving to the plaintiff any notice that he was considering allegations of unsatisfactory performance or of serious misconduct against him and without giving the plaintiff any opportunity to answer such allegations or to be heard with respect to them.
[9]In addition to the problem of prejudgment there was a further fundamental problem with this procedure. The letter informed the plaintiff of the charges in broad terms. The letter did not inform the plaintiff of any particular act by him said to be the basis of the charges or provide to him any specific particulars of his alleged wrongdoing. Not surprisingly, the plaintiff responded to the letter he received by requesting in writing on 25 May 2000 specific details of his alleged wrongdoing, what he had been accused of saying to whom, his inappropriate behaviour, the alleged threatening behaviour. He was never given those details, despite further requests for them. In terms of basic fairness the procedure deployed by Mr Van Halen was flawed from the start. He charged the plaintiff with serious matters, judged him to be guilty of them without prior notice and without affording him an opportunity to be heard, and refused his requests for particulars.
[10]The flaws were never corrected, if indeed they were capable of being corrected. On the contrary the procedural unfairness continued. On 25 May 2000 Mr Van Halen refused to accept from the plaintiff a letter in which he detailed his allegations with respect to Mr Wood. Having rejected the letter of 25 May, Mr Van Halen by letter dated 23 June 2000 demanded that the plaintiff provide a letter of complaints and allegations with an ultimatum that if it was not posted to him by 30 June 2000 he would order the plaintiff to attend a meeting with the General Medical Officer. Although he received the letter, which set out in the same terms the allegations that had been in the letter of 25 May 2000 which Mr Van Halen had refused to accept, he nevertheless instructed the plaintiff to remove himself from the school premises on 10 July 2000 and on 2 August 2000 directed him to attend the psychiatrist Dr Nigel Strauss. In the letter of 2 August 2000 Mr Van Halen also directed the plaintiff to report for duty at the Western Metropolitan Regional Office.
[11]On 4 August 2000 Mr Van Halen wrote a one and a half page letter to Dr Strauss with allegations, observations and opinions about the plaintiff. The plaintiff was not provided with that letter, or with any notice of the allegations made in it against him. He attended the appointment upon Dr Strauss not knowing that Mr Van Halen had made a number of serious allegations about his behaviour and without knowledge of the information given by Mr Van Halen to Dr Strauss. It is readily apparent from the report of Dr Strauss that his assessment of the plaintiff was influenced by the allegations, observations and opinions in the letter of Mr Van Halen. Although there had been no investigation of the plaintiff’s allegations with respect to Mr Wood, and somewhat surprisingly, Dr Strauss expressed the opinion that there appeared to be little evidence to support the allegations and that the plaintiff was probably delusional about those matters. This was an unfair procedure.
[12]Dr Strauss reported on 10 August 2000 that the plaintiff was unfit to work as a teacher due to psychiatric illness. On 18 August 2000 Mr Van Halen wrote to him informing him that Dr Strauss had advised he was unfit for teaching duties and directing him to absent himself from work. He informed him that his absence would be regarded as sick leave. The plaintiff was suspended from his duties at the Western Metropolitan Regional Office and was absent from work on sick leave. He was never given the opportunity to be heard with respect to the charges of unsatisfactory performance and serious misconduct.
…
[30]In my opinion the plaintiff is not prevented from receiving payment of compensation by subsection (2A) of section 83 for two reasons. First, a significant cause of the stress which caused the plaintiff’s depressive disorder was the manner in which his employer dealt with his complaint of misappropriation of money. The action taken by his employer about that matter was not for a purpose stated in paragraph (a), that is, to transfer, demote, discipline, redeploy, retrench or dismiss the plaintiff. Accordingly, it cannot be said that the stress causing the illness or disorder of the plaintiff’s mind arose either wholly or predominately from action taken to discipline him. Secondly, for the reasons already given, I do not consider the action taken by the employer to discipline the plaintiff was a reasonable action taken in a reasonable manner. The expression “reasonable action taken in a reasonable manner” is a composite expression, which requires not only that the taking of action be reasonable but that the manner of taking the action be reasonable. In my opinion the manner in which the employer took action to discipline the plaintiff, by prejudging his guilt without notice, refusing his requests for particulars, not giving him the opportunity to be heard, and influencing the assessment of Dr Strauss, fell far short of reasonable action taken in a reasonable manner.
At the relevant time, s 82 of the Accident Compensation Act 1985 stated:
82 Entitlement to compensation
(1)If there is caused to a worker an injury arising out of or in the course of any employment and if the worker’s employment was a significant contributing factor the worker shall be entitled to compensation in accordance with this Act.
(2)…
(2A)Compensation is not payable in respect of an injury consisting of an illness or disorder of the mind caused by stress unless the stress did not arise wholly or predominantly from—
(a)reasonable action taken in a reasonable manner by the employer to transfer, demote, discipline, redeploy, retrench or dismiss the worker; or
…
The plaintiff contends that an issue estoppel arises because relevant questions arise in the current proceeding that were the subject of findings made by Judge Howie which were legally indispensable to his conclusion. The plaintiff submitted that the findings of fact alleged to be the subject of the estoppel were not only essential to the decision of Judge Howie, but were also essential to establishing his present claim in negligence.
In Blair v Curran,[2] Dixon J stated:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. 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 judgment, so that it is merged and has no longer an independent existence, while 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.
Nothing but what is legally indispensable to the conclusion is thus finally closed or precluded. In matters of fact the issue estoppel is confined to those ultimate facts which form the ingredients in the cause of action, that is, the title to the right established. Where the conclusion is against the existence of a right or claim which in point of law depends upon a number of ingredients or ultimate facts the absence of any one of which would be enough to defeat the claim, the estoppel covers only the actual ground upon which the existence of the right was negatived. But in neither case is the estoppel confined to the final legal conclusion expressed in the judgment, decree or order. In the phraseology of Coleridge J. in R. v. Inhabitants of the Township of Hartington Middle Quarter, the judicial determination concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue. Matters cardinal to the latter claim or contention cannot be raised if to raise them is necessarily to assert that the former decision was erroneous.
In the phraseology of Lord Shaw, "a fact fundamental to the decision arrived at" in the former proceedings and "the legal quality of the fact" must be taken as finally and conclusively established (Hoystead v Commissioner of Taxation). But matters of law or fact which are subsidiary or collateral are not covered by the estoppel. Findings, however deliberate and formal, which concern only evidentiary facts and not ultimate facts forming the very title to rights give rise to no preclusion. Decisions upon matters of law which amount to no more than steps in a process of reasoning tending to establish or support the proposition upon which the rights depend do not estop the parties if the same matters of law arise in subsequent litigation.
The difficulty in the actual application of these conceptions is to distinguish the matters fundamental or cardinal to the prior decision or judgment, decree or order or necessarily involved in it as its legal justification or foundation from matters which even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law the essential foundation or groundwork of the judgment, decree or order. In the present case the decretal order refers in terms to the clause the meaning and effect of which is now in question…
[2](1939) 62 CLR 464, 531-533 (citations omitted).
The parties referred to a number of other authorities and I will refer to two. First the statement of Ashley JA in Brumar (Vic) Pty Ltd v Norris[3] that:
Sixth, references to the “same question” or the “precise matter” that has already been decided refer, in the context of an issue of fact, to a matter which the prior judgment “necessarily established as the legal foundation or justification of its conclusion.” In Blair v Curran, Dixon J made it clear that the estoppel is not confined to the “final legal conclusion” expressed in the earlier judgment. It extends to a “matter which it was necessary to decide and which was actually decided as the ground work of the decision itself though not then directly the point at issue.” It follows that the reference to issue estoppel is not a reference simply to an issue in the sense of an ingredient of the cause of action. Put another way, the existence of issue estoppel does not depend upon there being precisely the same issue, in the sense of an element of a cause of action, being present in the earlier and the later proceeding. That point was made by Clarke JA in Egri v DRG Australia Ltd, when his Honour said:
It is not a necessary condition of an estoppel arising from such a finding that it be made in the determination of an issue which is identical with the issue in the later proceedings. It is sufficient if the finding, of fact or law or mixed fact and law, is made in respect of an identical question not withstanding that that question may fall to be decided in the course of the determination of issues which are not identical.
[3](2010) 28 VR 665, 691 [90] (Mandie JA and Ross AJA agreeing) (citations omitted).
Secondly, in Forster v Legal Services Board[4] Kyrou AJA stated:
Authorities such as Blair v Curran and Ramsay v Pigram make it clear that the expression “same question” in the first component of the doctrine of issue estoppel does not refer to the ultimate question, as identity in the ultimate question would give rise to res judicata. Rather, the first component refers to an issue which established the legal foundation or justification for the judicial decision. Accordingly, the doctrine of issue estoppel can apply notwithstanding that the ultimate question for decision in a subsequent proceeding is different.
[4](2013) 40 VR 587, 608 [102] (Weinberg JA and Harper JA agreeing) (citations omitted).
It is clear that the fact that the ultimate question in this common law proceeding differs from the ultimate question that Judge Howie decided about the plaintiff’s entitlement to weekly payments is no answer to the plaintiff’s reliance on an issue estoppel, if it is otherwise established. Nor do I accept the defendant’s submission that there must be a precise correspondence between the findings made by Judge Howie and the description of the facts pleaded by the plaintiff which are said to be the subject of the issue estoppel. It is sufficient if the facts pleaded in the second proceeding if otherwise giving rise to an issue estoppel, are in essence or effect those found in the first proceeding.
However, in my opinion, none of the facts which are said to give rise to issue estoppel from Judge Howie’s judgment were the legal foundation or justification for that decision. To use Dixon J’s words, they were not ‘ultimate facts’ which formed the ingredients of the cause of action or the defence to it which were the subject of Judge Howie’s judgment. They were not fundamental facts.
In paragraphs 8 to 12 of Judge Howie’s judgment in which most of the facts appear which the plaintiff says give rise to an estoppel, his Honour gave reasons for his decision contained in paragraph 7 of the judgment that the action taken by the employer to discipline the plaintiff was not reasonable action taken in a reasonable manner within the meaning of s 82(2A) of the Accident Compensation Act. The defendants in that proceeding relied on s 82(2A) as a defence to the plaintiff’s claim. The plaintiff’s claim, which his Honour found proved, was that during particular periods he suffered from a mental injury, being a depressive disorder, arising out of or in the course of his employment and with respect to which his employment was a contributing factor.
The plaintiff contends that an estoppel arises in respect of particular facts found by Judge Howie and pleaded in his statement of claim. Paragraph 30 of Judge Howie’s reasons is expressed by way of a conclusion without reference to particular facts, but appears clearly enough to be connected to the findings contained in paragraphs 7 to 12. But in my opinion, the generally expressed conclusions contained in the last sentence of paragraph 30 do not assist the plaintiff in establishing that an issue estoppel applies to the particular facts pleaded in his statement of claim which he contends are subject to the estoppel. I note that paragraph 30 contains two reasons as to why the defendant’s s 82(2A) defence failed. The first was that the action taken by the employer about that matter was not for a purpose stated in paragraph (a), that is, to transfer, demote, discipline, redeploy, retrench or dismiss the plaintiff. The second was that the action taken by the employer to discipline the plaintiff was not reasonable action taken in a reasonable manner.
In my opinion, the findings of Judge Howie, which the plaintiff says give rise to an issue estoppel, were not findings as to ultimate, cardinal or fundamental facts. His Honour was considering a statutory provision which required, inter alia, an assessment of whether the employer’s action, taken as a whole, was reasonable action taken in a reasonable manner. None of the findings that his Honour made appear fundamental to his decision that the employer’s conduct was not reasonable action taken in a reasonable manner. Nor do I consider that the findings relied on, taken in the aggregate or as a whole, can be properly regarded as findings as to ultimate, cardinal or fundamental facts. They were evidentiary findings made as part of an assessment of an issue raised by the defendant, of whether the employer had engaged in reasonable action taken in a reasonable manner.
Accordingly, I find that no issue estoppel arises as alleged by the plaintiff.
---
0
0