| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Tuliakiono v Snapes Australia Pty Ltd [2021] NSWPIC 509 |
| APPLICANT: | Kelepi Tuliakiono |
| RESPONDENT: | Snapes Australia Pty Ltd |
| Member: | Philip Young |
| DATE OF DECISION: | 9 December 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Accepted left shoulder injury but applicant claims additional lumbar spine and left knee injuries. latter two injuries the subject of previous proceedings with same date and mechanism of injury resulting in consent awards for the respondent concerning injury to the lumbar spine and left knee; issue estoppel discussed; Tomlinson v Ramsey Food Processing Pty Limited, Blair v Curran, Lambidis v Commissioner of Police, Ramsay v Pigram and Port of Melbourne Authority v Anshun Pty Limited discussed; Thompson v George Weston Foods Limited, Geary v UPS Pty Limited and Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine applied; Held - award in favour of the respondent regarding lumbar spine and left knee alleged injuries; award in favour of the applicant in respect of left shoulder injury & matter remitted to the president accordingly. |
| determinations made: | 1. Award in favour of the respondent by reason of estoppel in respect of alleged injuries to the applicant’s lumbar spine and left knee. 2. Award in favour of the applicant pursuant to section 66 of the Workers Compensation Act 1987 in respect of injury to the applicant’s left upper extremity which occurred on 26 October 2015. 3. The matter is remitted to the President for referral to a Medical Assessor (Orthopaedic Surgeon) to determine the extent of the applicant’s whole person impairment, if any, which results from injury to the applicant’s left upper extremity (left shoulder) which occurred on 26 October 2015. 4. The President’s delegate is requested to place before the Medical Assessor a copy of the Application to Resolve a Dispute and attachments, a copy of the Reply and attachments and a copy of the attachments to the respondent’s Application to Admit Late Documents. |
STATEMENT OF REASONS
Background
Kelepi Tuliakiono (the applicant) is a 60 year old man who was employed by Snapes Australia Pty Ltd (the respondent) as a delivery driver. He alleges that on 26 October 2015 whilst using a pallet jack to move a broken pallet full of goods weighing 580 kilograms he suffered injury to his left shoulder, left knee and back.
In proceedings numbered W3792/21 in the Personal Injury Commission the applicant makes a claim pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) in respect of 20% whole person impairment resulting from injuries to his left upper extremity, left lower extremity and lumbar spine.
In prior proceedings numbered 825/19 the applicant’s former solicitors had filed an Application to Resolve a Dispute (Application) on his behalf in the (then) Workers Compensation Commission of New South Wales alleging the same date of injury with injury description as follows:
“Personal injury – left upper extremity (shoulder), lumbar spine.
The applicant sustained injury whilst trying to move a broken pallet full of items inside the…
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- Case
- [2021] NSWPIC 509
- Decision Date
CaseChat Overview and Summary
The court examined whether issue estoppel applied to preclude the applicant from claiming compensation for the lumbar spine and left knee injuries. Issue estoppel, also known as “cause of action” estoppel, operates to prevent the raising of an ultimate issue of fact or law that was necessarily resolved in a prior judicial determination. The court considered the elements of issue estoppel, including whether the same question had been decided, whether the prior determination was final, and whether the parties were the same. The court also referred to the distinction between res judicata and issue estoppel, noting that issue estoppel is confined to ultimate facts that form the ingredients in the cause of action.
The court concluded that issue estoppel did apply in this case. The consent awards for the lumbar spine and left knee injuries had resolved the ultimate issues of fact or law necessary to reach the determination in the prior proceedings. The court applied the principles from previous cases such as Thompson v George Weston Foods Limited, Geary v UPS Pty Limited, and Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine. The court found that the consent awards brought finality in terms of the awards for the lumbar spine and left knee injuries. Therefore, the applicant was estopped from pursuing claims for those injuries.
The court remitted the matter to the president to determine the appropriate compensation for the applicant's left shoulder injury, which was accepted by the respondent. The court did not award compensation for the lumbar spine and left knee injuries, as the applicant was estopped from claiming those injuries.
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