Tuliakiono v Snapes Australia Pty Ltd
[2021] NSWPIC 509
•9 December 2021
| 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 back of a truck”.
Proceedings numbered 825/19 were concluded by operation of Consent Orders.[1] Those orders included the following:
“1. Award in favour of the applicant at the rate of $1,000 per week from 8 April 2016 to 9 March 2018 (agreed to total $100,000) pursuant to sections 36 and 27 with an award in favour of the respondent thereafter.
2. Award in favour of the respondent in respect of the alleged injury to the lumbar spine.
3. Award in favour of the respondent in respect of the alleged injury to the left knee.
4. Respondent to pay medical expenses pursuant to section 60 in respect of treatment to the applicant’s left shoulder, excluding lumbar spine and left knee, incurred to date not exceeding a total of $4,000 on production of accounts receipts or Medicare notice of charge. Otherwise an award for the respondent in respect of the claim under section 60.
5. Leave to discontinue section 66 claim in respect to the left upper extremity”.
Issue
[1] Reply at p 27.
The respondent has narrowed the issue to simply a question of issue estoppel.[2] Within the compass of this issue exist considerations as to the effect, if any, of Consent Orders, the determination of ultimate facts and the effect of subsequent conditions.
[2] Respondent’s submission 29 October 2021 at [23].
Evidence before the Commission
The following documents were admitted into evidence and were before the Commission:
(a) Application and attachments lodged 17 August 2021.
(b) Reply and attachments lodged 7 September 2021 (Reply).
(c) Application to Admit Late Documents filed by the respondent’s solicitor 29 September 2021 and attachments (AALD).
Much of the documentation attached to the respondent’s AALD which was admitted into evidence (6. (c) above) includes the Application in 825/19 and the various attachments to that Application.
Oral evidence
No oral evidence was given.
Procedure before the Commission
The matter came for conciliation and arbitration hearing before the Commission by telephone conference on 15 October 2021. Mr V Jurisich of counsel instructed by Mr S Lemoto, solicitor, appeared for and with the applicant and Ms S Puku was present as interpreter.
Mr J Beran of counsel instructed by Ms J Turnbull, solicitor, appeared for the respondent. Ms L Gamlath was present from the insurer.The matter initially proceeded to conciliation but regrettably was not capable of resolution. I was satisfied that the parties to the dispute understood the issues relevant to the dispute and that I had used my best endeavours to attempt to effect settlement. That being the case, the jurisdiction of the Commission to proceed to arbitration hearing was enlivened.
Submissions
Counsel for both parties prepared written submissions as follows:
(a) Respondent’s written submissions dated 29 October 2021 prepared by Mr Beran.
(b) Applicant’s written submissions dated 15 November 2021 prepared by Mr Jurisich.
DISCUSSION AND REASONS
In proceedings 825/19, at least on the face of that Application, there was no specific description of alleged injury to the applicant’s left lower extremity. Nevertheless, the Consent Orders dated 9 May 2019 which concluded those proceedings gave an award for the respondent in respect of the alleged injury to the applicant’s left knee. This was not identified as an issue in either of the parties’ submissions and therefore I must infer that injury to the left knee was also claimed in those proceedings. Were this not the case, the reference in paragraph four of the Consent Orders dated 9 May 2019 to the left knee would be entirely otiose.
The late documents filed by the respondent on 29 September 2021 include section 74 notices issued by QBE dated 14 June 2016 and 2 February 2017.[3] The statement of matters in dispute in the 14 June 2016 section 74 notice relies upon section 4 in the sense that there was allegedly no “personal injury arising out of or in the course of employment”[4]; treatment in relation to the applicant’s conditions is not related to the 26 October 2015 incident and is not reasonably necessary treatment pursuant to section 60[5] and the applicant’s employment was not a substantial contributing factor to the applicant’s conditions nor the main contributing factor.
[3] AALD at pp 287 and 295 respectively.
[4] Ibid at p 287.
[5] Ibid.
The second section 74 notice issued by QBE is dated 2 February 2017. The contents of this notice present some confusion in that they are substantially similar to the earlier section 74 notice but suggest in the heading that this second notice includes a notice of termination or reduction of payment of weekly compensation under section 54 of the 1987 Act and additionally refers in the first paragraph to QBE’s obligation to regularly review liability and decline liability, if so indicated.
Notwithstanding the matters just mentioned, it is reasonably clear that the insurer’s contention was that the applicant had not suffered “injury” within the meaning of the 1987 Act and it was this dispute which translated into proceedings numbered 825/19 and is the context in which the awards the subject of the 9 May 2019 Consent Orders should be considered.
The meaning of “injury”
In Coleman[6] Neilson J had to consider and explain the distinction between “injury” in the sense of the event of injury (for example, I add, the incident of falling from a ladder) and the change in the bodily status of the person (for example, I add, fractured arm). His Honour noted: -
“20. …In my view, here the word is used in its primary sense as defined in s 4 of the 1988 Act. A ‘personal injury’ is a change in the bodily status of a person whom we refer to as the injured person. It is not an event as such, but rather the medical condition. It is to be recalled that (the) entitling provision is Workers Compensation Act 1987 section 9 which provides as follows:
(1) A worker who has received an injury (and, in the case of the death of the worker, his or her dependants) shall receive compensation from the worker’s employer in accordance with this Act.
(2) Compensation is payable where the injury was received by the worker at or away from the worker’s place of employment.
21. The entitling event is the receipt of the injury, that is, the receipt of the pathological change in the person’s mind or body. Reading ‘injury’ in that way, one can see firstly, that the worker was alleging an injury to his back with a consequential affectation of his right leg in the initiating process on 6 November 2001. In the initiating process, the worker was relying only upon one event, that of 20 June 1991. The proposed amended application for determination annexed to the motion that is currently before me, adds an increased claim for the loss of efficient use of the right leg at or above the knee by increasing the percentage claimed from 15 per cent to 25 per cent. It also adds an additional claim for 25 per cent permanent loss of sexual organs and it has an increased claim in respect of pain and suffering, increasing the amount from $30,000 to $40,000”. (emphasis added)
[6] Coleman v Denison Hydraulics Pty Limited [2002] NSWCC 14.
In the present matter the applicant’s “injury” is described as follows:
“Type of injury: Personal
Date of injury: 26/10/2015
Place of injury: Delivery siteInjury Description/Cause of injury: Applicant whilst using pallet jack to move a broken pallet full of goods weighing 580kgs suffered injury to left shoulder, left knee and back”
It is tolerably clear in my view that a comparison between what was earlier claimed and the current claim is (apart from the left knee, elsewhere discussed) the same frank personal injury. The date, cause and description of injury are the same. It follows that it is necessary to review the authorities to determine how the case law deals with these allegations.
Issue estoppel
In Tomlinson[7] the High Court outlined the three forms of estoppel, namely “cause of action” estoppel, issue estoppel and “Anshun” estoppel. The decision of four judges included the following observations (omitting footnotes):
“Estoppel in that form (issue estoppel) operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment. The classic expression of the primary consequence of its operation is that a ‘judicial determination directly involving an issue of fact or of law disposes once [sic-and] for all of the issue, so that it cannot afterwards be raised between the same parties...’”
(emphasis added)
[7] Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28 at [22].
Nettle J in a separate judgment in Tomlinson came to the same result in that the appellant was not estopped. His Honour commented (omitting footnotes)[8]:
“The elements of issue estoppel
1. In Kuligowski v Metrobus, this Court adopted Lord Guest's formulation of the elements of issue estoppel in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2). That was as follows:
‘(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) 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.’
[8] Ibid at [90].
The parties in this matter are the same. Does the order bring finality in terms of the awards for the respondent in respect of the previously claimed body parts? Has the same question been decided?
Dixon J In Blair v Curran[9] observed:
“A judicial determination directly involving an issue of fact or of law disposes once and 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 has 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.”
[9] Blair v Curran [1939] HCA 23.
One important consideration underlining issue estoppel is public policy considerations. In Lambidis[10], Priestley JA (with whom Kirby P (as his Honour then was) and Powell JA agreed) said:
“[A]mong the public policy reasons common to both res judicata and issue estoppel are the protection of parties from unnecessary re-litigation and the avoidance of the expense, inconvenience and anxiety involved in the same persons fighting a second time on an issue already decided between them.”
[10] Lambidis v Commissioner of Police (1995) 37 NSWLR 320.
In Ramsay v Pigram[11] Barwick CJ encapsulated what was involved in answering that question by saying:
"Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case." (emphasis added)
[11] Ramsay v Pigram [1968] HCA 34 at [7].
In Blair v Curran[12], Dixon J observed that a "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". His Honour went on to distinguish findings concerning only "evidentiary facts" not the "ultimate facts" which formed the very title to rights in dispute[13]. This analysis, with the emphasis on decision-making, would require more than non-satisfaction.
[12] Blair v Curran [1939] HCA 23 per Dixon J.
[13] Ibid.
In Thompson[14] in an application for review of a Commissioner’s decision before McGrath CJ the Chief Judge said:
“It is clear that issue estoppel can arise as a consequence of an adjudication on a particular issue, which would prevent a party bringing, or defending, a claim in relation to a different benefit. I do not consider that there is any rule which would prevent a worker bringing an action claiming one type of benefit, and leaving another type of benefit for later, or other, adjudication. In doing this he may in some cases risk being penalised in costs, or risk failing on an issue which would debar the other claim. If he lost on the issue of injury he could not succeed in gaining compensation for a consequential benefit, whether it was included in the original application, or not”.
[14] Thompson v George Weston Foods Limited [1990] NSWCC 18.
Consent orders
Consent Orders may be the subject of issue estoppel[15]. This was established earlier but made clear in decisions to which the respondent refers in its submissions. The important principle in the current matter examines whether there is potential for conflicting determinations between what was agreed and determined, and what is now claimed. The test is whether the earlier matters were “necessarily decided”.
[15] Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 (Hine).
The enquiry in this matter resolves to what was necessarily decided, or more specifically in another sense I think, agreed.
Recently in Geary[16] Member Perry dealt with a section 66 claim alleging injury to both of the applicant’s shoulders and cervical spine based on an alleged “disease” type injury resulting from the nature and conditions of the applicant’s employment. Earlier proceedings in 2019 with the same injuries and the same employer had resulted in 2019 with a Consent determination including an award for the respondent with respect to cervical spine injury or a consequential cervical spine condition. Member Perry relied on Anshun[17] estoppel to prevent the applicant from relying on disease type injury in respect of the applicant’s cervical spine.
[16] Geary v UPS Pty Limited [2021] NSWPIC 111.
[17] Port of Melbourne Authority v Anshun Pty Limited [1981] HCA 45.
Member Perry outlined in Geary some principles with which I agree. Notably:
“The consent orders and all evidence should be closely examined so as to ‘ascertain whether any or what adjudication of matters in dispute was expressed, or necessarily involved in the actual decision assented to…”
Member Perry continued:
“Clauses 2 and 3 of that COD make it clear there was an award in favour of the respondent in respect of the allegation of injury and/or consequential injury to the cervical spine. That consent determination makes it clear enough that the applicant ‘could not succeed in gaining compensation for a consequential benefit’, including a lump sum benefit notwithstanding that aspect of the proceeding being discontinued.
A very important factor in analysing the third issue relates to the aspect of public policy in the finality of litigation and the preservation of confidence in the administration of justice. If the applicant were to be allowed to reframe the case in relation to the alleged injury or consequential injury to the cervical spine now, such would produce, or at least contribute to the existence of’ conflicting or contradictory judgments ‘though they may not be pronounced on the same cause of action as long as they appear to declare rights which are inconsistent in respect of the same transaction’ (Habib at [83])”
Discussion
The applicant’s submissions include a number of propositions which should be addressed. First, citing Blair v Curran[18] and Egri[19] it is submitted that “Issue estoppel only applies to findings of fact which were legally indispensable to the conclusion reached in the first proceedings. Any subsequent conditions are not part of the first conclusions[20]”. However, orders 2 and 3 of the Consent Orders involve findings of fact, in my view, that the applicant did not suffer “injury” to his lumbar spine or left knee resulting from the incident of 26 October 2015. To the extent that the respondent points to “subsequent conditions”, if this means subsequent events then the answer is that no such events are relied upon. To the extent that it means subsequent deterioration in pathology any consideration of that aspect of the matter would be contrary to the principles concerning finality of litigation which have been mentioned above.
[18] Op cit.
[19] Egri v DRG (Aust) Limited (1988 19 NSWLR 600 at 607.
[20] Applicant’s submissions page 2 at [7].
The second proposition advanced by the applicant is that where there has been no judicial determination of the relevant issues, Consent Orders do not create an issue estoppel. This proposition is not supported by Court of Appeal authority[21].
[21] Hine op cit per Meagher JA at [23].
The third contention relies upon deterioration of the applicant’s medical condition. That submission might be well understood if this matter did not involve a finding against the issue of injury in the first place. The applicant’s reference to Dimovski[22] overlooks important distinctions between Dimovski and the present case: the former involved several injuries with two different employers and a consequential condition, neither of which are involved in the current matter. Dimovski did not, to my understanding, involve any award for any respondent on the issue of injury.
[22] Rail Services Australia v Dimovski [2004] NSWCA 267.
Four, I do not interpret Roddenby[23] as supporting the claim by the applicant that consent awards “only determine issues between the parties as of the date of the award”. Rather, there were two reasons I advanced in Roddenby for finding that there was no issue estoppel: first, that the earlier consent award for the respondent made no reference to the reason why the award for the respondent was made[24]; second, a consideration of the elements of section 66 of the 1987 Act relative to section 60 reveals a number of different reasons why the consent order was expressed in the chosen form, not necessarily the sole assertion that the surgery was not reasonably necessary[25].
[23] Roddenby v Bunnings Group Limited [2021] NSWPIC 213.
[24] Ibid at [29].
[25] Ibid at [29]-[31].
The applicant’s fifth contention points to the decision of Snell ADP in De Witte[26]. That case also did not deal with specific consent awards on the issue of injury.
[26] De Witte v Tawney Pty Limited [2006] NSWWCCPD 109.
In the circumstances, I have come to the view which McGrath CJ identified in Thompson and was taken by Member Perry in Geary. That view is that where there are consent awards in favour of a party on the issue of injury, those awards give rise to an estoppel preventing the affected party from re-litigating that finding. That being the case, there will be an award in favour of the respondent in respect of those alleged injuries. There will be an award in favour of the applicant in respect of injury to the applicant’s left upper extremity and a remit to the President for referral to a Medical Assessor for assessment of whole person impairment.
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