Tuliakiono v Snapes Australia Pty Ltd - [2021] NSWPIC 509

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWPIC 509
Decision Date: 9 December 2021

CaseChat Overview and Summary

In the matter of Tuliakiono v Snapes Australia Pty Ltd, the applicant was seeking to have injuries to his left shoulder, lumbar spine, and left knee recognised under the workers compensation scheme. The parties had previously entered into consent awards concerning the lumbar spine and left knee injuries. The court had to determine whether the applicant was estopped from pursuing claims for the lumbar spine and left knee injuries due to the prior consent awards and whether the respondent was entitled to compensation for the left shoulder injury.

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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 estoppel1. 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.

Ratio Decidendi

Legal Principle Established

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