Woolstar Pty Ltd v Wood
[2022] NSWPICPD 25
•4 July 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Woolstar Pty Ltd v Wood [2022] NSWPICPD 25 |
APPELLANT: | Woolstar Pty Ltd |
RESPONDENT: | Shane Wood |
INSURER: | Employers Mutual as agent for Woolworths Ltd Workers Compensation Self Insurance Scheme |
FILE NUMBER: | A1-W1390/21 |
PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
DATE OF APPEAL DECISION: | 4 July 2022 |
ORDERS MADE ON APPEAL: | 1. Leave to appeal an interlocutory decision is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Certificate of Determination dated 23 September 2021 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – Duty to give adequate reasons: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; alleged factual error – matters requiring expert medical evidence: Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352; estoppel on the basis of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589; section 4(b)(ii) of the Workers Compensation Act 1987 – ‘main contributing factor’: AV v AW [2020] NSWWCCPD 9 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr S McMahon, counsel | |
| TurksLegal | |
| Respondent: | |
| Mr L Morgan, counsel | |
| Law Partners Personal Injury Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Ms J Peacock |
DATE OF MEMBER’S DECISION: | 23 September 2021 |
INTRODUCTION AND BACKGROUND
Shane Wood (the worker) was employed by Woolstar Pty Ltd (the employer) at its Yagoona premises as a storeman from about 2005, he became full time from “around 2008”.[1] He experienced interpersonal difficulties with other employees; he referred to Michel (his manager), Marie (the head manager) and David (a fellow employee).[2] He made a complaint about another manager, Angela. He said he was micromanaged.[3] He saw his general practitioner Dr Gaurav from 28 July 2015 and made a claim which was denied. He said that barely anyone spoke to him and he was “deliberately bullied”. He described incidents of physical bullying.[4] He stated that he ceased his employment in February 2018 as he had “had enough of the bullying and harassment and genuinely feared for [his] life”. He was placed on antidepressants by Dr Lombardi, a psychiatrist.[5] He has not worked since 19 February 2018.[6]
[1] Worker’s statement, undated, [11], Application to Resolve a Dispute (ARD), p 36.
[2] ARD, [13]–[20], pp 36–37.
[3] ARD, [21]–[26], pp 37–38.
[4] ARD, [28]–[35], pp 38–39.
[5] ARD, [44]–[45], p 40.
[6] ARD, [66], p 44.
The worker instituted proceedings no. 2096/19 in the former Workers Compensation Commission of New South Wales (the initial proceedings). The employer at that point was described as Woolworths Ltd. The claim was for weekly payments from 26 March 2018, medical expenses and lump sum compensation for 22 per cent whole person impairment in respect of psychological injury. The pleaded date of injury was “13/01/2018 (deemed date)”. It was pleaded that throughout the course of his employment the worker “experienced various incidents of bullying and harassment”. It was alleged:
“Due to the nature and condition of his employment, the [worker] has developed the gradual onset of a psychologic injury which has culminated into permanent impairment and manifested period of incapacity from employment.”
The initial proceedings were heard by Arbitrator Homan on 1 July 2019. Both parties were represented by counsel. The Application to Resolve a Dispute was amended to allege a deemed date of injury of 26 March 2018. No oral evidence was adduced. Counsel addressed. A Certificate of Determination was issued dated 5 August 2019 (initial decision).[7] There was an award for the employer on the claim of psychological injury. The Arbitrator said “there has been a repeated and significant failure by the [worker] to disclose his relevant medical history in the context of this claim”. She continued “… the [worker] in his first statement volunteered that he had not been diagnosed previously for depression, anxiety, stress or any psychological condition other than work-related stress prior to the current claim”. The Arbitrator referred to medical histories in which any prior psychiatric history was denied. The Arbitrator contrasted this with clinical notes that included “numerous consultations” from 2008 onwards that showed symptoms and treatment for problems of a psychological nature, including treatment under a mental health team at the Sutherland Hospital and referral to a psychologist. The Arbitrator referred to denials by the worker of any “outside stressors or having experienced any anxiety or other psychological conditions in the past”. She said: “This was patently untrue and is a matter that impacts on both the credibility of the [worker’s] lay evidence and the reliability of the expert evidence.”[8] The Arbitrator found deficiencies in the historical foundation of the reports from Dr Clark and Dr Ayliff. She found difficulties in the accuracy of the worker’s account.[9] She concluded:
“After careful analysis of the evidence before me, I am not satisfied that the [worker] has discharged the onus of proof. I am not satisfied that the [worker] has contracted a psychological injury as pleaded. There will be an award for the [employer] in respect of the claimed compensation.”[10]
[7] ARD, pp 59–81.
[8] Initial decision, [159]–[162].
[9] Initial decision, [183]–[188].
[10] Initial decision, [191].
An appeal by the worker pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) was unsuccessful.[11]
[11] Wood v Woolworths Ltd [2020] NSWWCCPD 8.
The worker’s solicitors made a further claim on his behalf in correspondence dated 10 December 2020.[12] The claim was for lump sum compensation in respect of 18 per cent whole person impairment (psychiatric injury). It was supported by reports of Dr Clark dated 4 July 2018 and 28 February 2019 (which had previously been served), and more recent reports of Dr Clark (dated 27 August 2020) and Mr Anning, psychologist (dated 27 August 2020) that post-dated the initial decision. The letter of claim identified the employer as “Woolstar Pty Ltd” and described the date of injury as follows: “Date of Injury: 13/01/2018 and/or 19/02/2018 (Deemed – last date of employment) and/or 20/08/2019 (deemed – date claim made pursuant to s16 of the WC Act 1987)”. The letter of claim included the following: “We note that the psychiatric injury sustained by our client on the above dates of injury is pleaded pursuant to 4(b)(ii).”
[12] ARD, pp 82–83.
The employer’s insurer issued a dispute notice dated 26 March 2021.[13] It denied ‘injury’ under both subss (a) and (b) of s 4 of the Workers Compensation Act 1987 (the 1987 Act), ‘main contributing factor’, the satisfaction of s 9A of the 1987 Act and an entitlement to benefits. It additionally asserted that the worker was “estopped from bring[ing] a further claim in respect of psychological injury”.
[13] ARD, pp 51–53.
The matter was listed for hearing on 3 August 2021 before Member Peacock. Mr Morgan appeared for the worker and Mr McMahon for the employer. There were no applications to take oral evidence. Counsel addressed and the Member reserved her decision. The Commission issued a decision on 23 September 2021.[14] The Member made a finding that the worker had suffered injury involving the aggravation of a pre-existing psychological condition to which his employment was the main contributing factor.[15] She concluded that the principles in Port of Melbourne Authority v Anshun Pty Ltd[16] did not apply as the worker did not, at the time of the initial proceedings, have medical evidence to support a case based on s 4(b)(ii) of the 1987 Act.[17] She made orders for the referral of the matter to a Medical Assessor to assess permanent impairment (psychological injury). She said the matter would be relisted for a telephone conference to deal with outstanding issues.
[14] Wood v Woolstar Pty Ltd [2021] NSWPIC 372 (the reasons).
[15] Reasons, [39].
[16] [1981] HCA 45; 147 CLR 589 (Anshun).
[17] Reasons, [51].
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
The employer has marked the box in its appeal application to indicate that the matter can be dealt with on the papers. In its written material it indicates that “it is appropriate to have the matter determined with an oral hearing should that be required by the Presidential Member”. It submits there are questions of law and fact that may benefit from oral submissions.[18] The worker submits there is no need for an oral hearing. Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
[18] Employer’s submissions, [4.1].
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. The orders made by the Member provide for referral of the matter for assessment of permanent impairment. Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The employer submits the decision under appeal is not interlocutory as it involves “a final determination of liability”. It submits that, in the alternative, if the decision is interlocutory it is in the interests of natural justice and procedural fairness that leave be granted. It is submitted convenience favours finally determining the liability issues before the worker attends a medical assessment and a further hearing is held.[19] The worker submits the Member’s decision is not interlocutory.[20] An order referring a matter for assessment of permanent impairment does not, in my view, finally dispose of the rights of the parties. It may be different if the orders ended a party’s rights, in whole or in part, for example because a worker failed on a matter such as ‘injury’. The Member’s orders in the current proceedings were interlocutory.[21] The appeal requires leave. It has frequently been held that leave should be granted in such circumstances as it will potentially avoid an unnecessary medical assessment, avoiding further costs and delay. In the current circumstances it also potentially avoids a further conciliation and arbitration hearing. The granting of leave is desirable for the proper and effective determination of the dispute: see by way of example Campbelltown Tennis Club Ltd v Lee.[22] In the circumstances I grant leave pursuant to s 352(3A) of the 1998 Act.
[19] Employer’s submissions, [7.1]–[7.4].
[20] Worker’s submissions, [7].
[21] Licul v Corney [1976] HCA 6; 180 CLR 213, 225.
[22] [2013] NSWWCCPD 50, [22].
THE MEMBER’S REASONS
The Member said there was agreement that the worker was estopped, by the decision of Arbitrator Homan, from running an argument that the worker suffered injury involving the development of the gradual onset of a psychological condition (that is, injury based on s 4(b)(i) of the 1987 Act). The worker’s pleading of injury was that “due to the nature and conditions of employment the [worker] has suffered an aggravation of his pre-existing psychological condition”.[23] The Member noted that, if the worker succeeded on this ‘injury’ issue, there remained an argument that his case should fail on the basis of “the principles of Anshun estoppel”.[24]
[23] Reasons, [5].
[24] Reasons, [7].
The Member said it was common ground that the worker did not, in the initial proceedings, plead, or seek to run a case based on s 4(b)(ii).[25] She said the worker’s expert medical case in the initial proceedings was based on Dr Clark, whose view was that events at work, or the worker’s perception of the events, resulted in the worker contracting a disease of gradual onset. She said it was common ground that the worker did not disclose his prior psychological condition in the initial proceedings, which failed partly because Arbitrator Homan found she could not rely on Dr Clark’s opinion for that reason.[26]
[25] Reasons, [18]–[19].
[26] Reasons, [20]–[21].
The Member described it as “common ground amongst the experts that [the worker] suffers a Major Depressive Disorder”. She said “Causation is in dispute”. The employer submitted the worker was “not a witness of truth”. The Member said there was “no real dispute on the evidence that various real events took place at work over time which Mr Wood perceived as bullying and harassment.” Clinical records indicated that the worker complained about feeling victimised at work with an associated increase in psychological symptoms.[27]
[27] Reasons, [24]–[29].
The Member quoted at length from the submissions of the worker’s counsel. Mr Morgan submitted there were uncontroverted statements from the worker, with supporting clinical material from the general practitioner, from 2014 to 2018, dealing with how the worker perceived he was being treated in the workplace. Evidence from witnesses, including those of the employer, made it clear a number of events occurred which the worker perceived as bullying and harassment. The Member said there was “considerable support” in the clinical records for the worker feeling victimised at work and feeling increasing psychological symptoms as a result. The Member quoted from Mr Morgan’s submissions, that these matters “worked up to the culmination of his departure from employment in early 2018”. She said there was nothing in the employer’s evidence that refuted, “in any meaningful way” the worker’s evidence as to what he perceived took place.[28]
[28] Reasons, [29]–[32].
The Member referred to the defence based on Anshun. The Member quoted a lengthy passage[29] from the decision, which was referred to in the worker’s submissions, of the President, Phillips J, in Fourmeninapub Pty Ltd v Booth.[30] She also quoted a lengthy passage[31] from the President’s decision in Secretary, Department of Communities & Justice v Miller (No. 5)[32] which the employer referred to in its submissions.
[29] Reasons, [44]–[46].
[30] [2019] NSWWCCPD 25 (Booth).
[31] Reasons, [47]–[48].
[32] [2020] NSWWCCPD 38 (Miller No. 5).
The Member discussed the issue relating to Anshun estoppel in the following passage:
“What the authorities can be distilled as saying is for me to find [the worker] was estopped by virtue of an Anshun estoppel is I would have to find that it was unreasonable of him not to run the section 4(b)(ii) aggravation case in the prior proceedings. The onus would appear to be on [the employer] to establish this because President Phillips said that the onus was on the appellant in that case. Each case has to be decided on its own facts. Here Mr Wood did not run the section 4(b)(ii) case because he did not have expert evidence that supported that case. Without that evidence he could not run that case. The finding in this case that Mr Wood has suffered an aggravation injury (section 4(b)(ii)) is not one which is inconsistent with the findings made in the prior proceedings. I am not satisfied that the principles of Anshun estoppel apply in the present case to preclude an award in his favour.”[33]
[33] Reasons, [51].
GROUNDS OF APPEAL
The employer raises the following grounds of appeal:
(a) The Member failed to give proper, or lawful, reasons concerning the determination of Anshun estoppel. (Ground No. 1)
(b) The Member erred at law in determining the Anshun estoppel point when finding that the principles in Anshun were not made out. (Ground No. 2)
(c) The Member erred in her exercise of discretion when finding the principles in Anshun had not been made out. (Ground No. 3)
(d) The Member erred in fact or law when finding an injury pursuant to s 4(b)(ii) was not inconsistent with the award for the employer regarding the allegation of injury pursuant to s 4(b)(i) in the initial proceedings. (Ground No. 4)
(e) The Member made an error of fact and/or law in the assessment of evidence and approach to causation pursuant to s 4(b)(ii) of the 1987 Act. (Ground No. 5)
(f) The Member erred at law in failing to give proper, or lawful, reasons concerning the determination of the question of causation. (Ground No. 6)
THE NATURE OF THE APPEAL
The appeal is one brought pursuant to s 352(5) of the 1998 Act, which provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd[34] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[35] to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) [A Member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Member] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the [Member] may draw a particular inference from them. Even here the ‘fact of the [Member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [Member] was wrong.
(c) It may be shown that [a Member] was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Member] is so preponderant in the opinion of the appellate court that the [Member’s] decision is wrong’.”[36]
[34] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[35] (1966) 39 ALJR 505, 506.
[36] Raulston, [19].
In Workers Compensation Nominal Insurer v Hill[37] Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[38]
[37] [2020] NSWCA 54 (Hill).
[38] Hill, [20].
In Northern NSW Local Health Network v Heggie[39] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519.”[40]
[39] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[40] Heggie, [72].
LEGISLATION
Section 4 of the 1987 Act relevantly provides:
“4 Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease …”.
GROUND NO. 1
Failing to give reasons concerning the determination of Anshun estoppel.
Employer’s submissions
The employer refers to Tudor Capital Australia Pty Limited v Christensen[41] and quotes from the reasons of McColl JA. The quoted passage describes the Arbitrator at first instance in Christensen as engaging in a “lengthy recounting of the facts” but failing to “demonstrate an analytical consideration of the competing theories of the cause of [the deceased’s] death”. Her Honour described the consideration of the issues arising from the expert evidence as “capable of being resolved rationally by examination and analysis”. Her Honour said the “failure to analyse the competing theories of [the deceased’s] death by reference to all the medical evidence demonstrated a failure to give adequate reasons and constituted an error of law”. The employer submits the Member demonstrated the same failing in the current matter, citing applicable law and submissions at length, but failing to engage appropriately with the evidence and the submissions and to expose the reasoning process to the ultimate conclusion. The employer submits there is no evaluation undertaken, the findings are a bare conclusion.[42]
[41] [2017] NSWCA 260 (Christensen), [392]–[394].
[42] Employer’s submissions, [11.2]–[11.3], [11.8]–[11.9].
The employer submits the dispositive discussion regarding this issue is found at [51] of the reasons (quoted at [17] above). It submits the factual finding reached was that, in the initial proceedings, there was not expert evidence to support a case pursuant to s 4(b)(ii), which was not pursued for that reason. The employer quotes from Habib v Radio 2UE Sydney Pty Ltd in which McColl JA said that to shut out a claim on the basis of Anshun was “a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances’.”[43] (emphasis added by the employer)
[43] [2009] NSWCA 231 (Habib), [85].
The employer submits such an exercise would have included the fact that the worker, in the original proceedings, had available notes from the Engadine Medical Centre that showed pre-existing psychological conditions and “multiple other claims … for psychological injury”. This clearly indicated the presence of a pre-existing psychological condition. It submits the Member identified the employer’s submissions on this issue, referred to in the reasons at [50], but failed to engage with them. The employer submits there were not proper reasons on this topic.[44]
[44] Employer’s submissions, [11.11]–[11.16].
Worker’s submissions
The worker submits the reasons at [51] are consistent with the approach adopted by Phillips P in Miller No. 5. The onus of proof rested with the employer if it sought to establish the asserted estoppel. The Member correctly identified that there was no independent medical evidence supporting a case pursuant to s 4(b)(ii) in the initial proceedings. In those circumstances, a finding consistent with the evidence of such an injury in the current proceedings was not inconsistent with findings in the initial proceedings. The Member’s reasoning process could not have been clearer. The worker submits the submission that the Member’s reasoning involved a “bare conclusion” is unsupported by the reasons.[45]
[45] Worker’s submissions, [13]–[16].
The worker submits the employer’s complaint relates to factual matters. The employer submits the only available conclusion was that, at the time of the initial proceedings, there was a pre-existing psychological condition. The worker submits this fails to deal with the fact that, at the time of the initial proceedings, there was no opinion evidence, either from an independent medical expert or a treating doctor, “which suggested a pre-existing condition was relevant to what was the initial application for compensation under the Act”. The worker submits the basis on which the Member found injury pursuant to s 4(b)(ii) was clearly expressed, and the employer is simply seeking to reargue the conclusion reached by the Member.[46]
[46] Worker’s submissions, [17]–[19].
Consideration
A number of matters relevant to the Anshun argument were not in issue. The Member noted the following common ground:
(a) The worker was estopped from running an ‘injury’ argument based on s 4(b)(i) of the 1987 Act.[47]
(b) The worker did not, in the initial proceedings, seek to run a case, or to plead ‘injury’, on the basis of s 4(b)(ii) of the 1987 Act. It was the view of Dr Clark, the worker’s Independent Medical Expert in the initial proceedings, that the worker had contracted a disease of gradual onset, a psychological injury.[48]
(c) The worker, in the initial proceedings, failed to disclose his prior psychological condition. This was partly why he failed in those proceedings.[49]
(d) The worker suffered from a pre-existing psychological condition.[50]
(e) The worker now suffers from a Major Depressive Disorder.[51]
[47] Reasons, [18].
[48] Reasons, [19]–[20].
[49] Reasons, [21].
[50] Reasons, [22].
[51] Reasons, [34].
The passage from the reasons of McColl JA in Christensen, quoted by the Member, is not completely analogous to the issues in the current matter. Her Honour referred to a complex factual medical scenario in Christensen. Her Honour said the first instance decision maker recounted the facts but failed to engage with the competing theories in the expert medical evidence. That is, there was a discrete error in fact-finding, a failure to engage with the competing expert medical evidence.
The Commission has a statutory obligation, pursuant to s 294 of the 1998 Act, to give reasons for its determinations:
“294 Certificate of Commission’s determination
(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2) A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
The Member quoted the following passage from the decision of Phillips P in Booth, a case in which Anshun was an issue:
“127. Anshun estoppel prevents a party from relying on a claim or defence if it unreasonably refrained from including it in the earlier proceedings. In Anshun, Gibbs CJ, Mason and Aickin JJ said:
‘In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.
128. Their Honours also said:
‘The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.’
129. In Habib, McColl JA said:
‘A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form: see Bazos and Anor v Doman and Ors [2001] NSWCA 347 (at [44]) per Stein JA (Priestley and Beazley JJA agreeing) and the authorities to which his Honour refers.’
130. It is clear that the objective of Anshun estoppel is the public policy that there are no conflicting judgments on the same set of facts. Applying the relevant principles, it must be determined whether the claim or defence was so closely related to the earlier subject matter that it would reasonably have been expected to have been raised. To answer this question the onus lies on the appellant to demonstrate that the failure to bring a claim in the earlier proceedings was unreasonable, and that there was no valid reason for refraining from doing so.”[52]
[52] Booth, [127]–[130], quoted in the Member’s reasons, [46].
The Member also quoted at some length from the decision of the President in Miller No. 5. The passages quoted included the following in which the President dealt with the reasons of McColl JA in Habib:
“182. Returning to Habib, McColl JA described the approach to Anshun at [82]–[87]. In these passages, her Honour describes Anshun estoppel as ‘an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings’ (emphasis added [in Miller No. 5]) and that an Anshun estoppel will apply even though the parties to the second proceedings are not the same as the first.
183. In particular at [84] her Honour says:
‘A strict approach is necessary in an Anshun estoppel case to the inquiry whether there exists the requisite identity between the proceedings; the mere fact that the proceedings are closely related is insufficient; a technical approach is not helpful, the doctrine being concerned with substance and not form.’
184. Her Honour also warns at [85] that:
‘shut[ting] out a claim ... a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation ... is a serious step, [and] a power not to be exercised except ‘after a scrupulous examination of all the circumstances.’ (emphasis added [in Miller No. 5])”[53]
[53] Miller No. 5, [182]–[184], quoted in the Member’s reasons, [48].
The passage quoted by the Member from the decision in Miller No. 5 included reference by the President to his own earlier decision in Booth:
“I note that reference has been made to my decision in Booth in as much as it dealt with an Anshun estoppel question. In that case I held that there was no Anshun estoppel as there was no evidence at the time of the filing of Ms Booth’s original proceedings which would have put her or her advisers upon notice of a psychiatric condition which had not yet materialised. That is to be contrasted with the situation here where the knowledge of what transpired on 15 April 2011 was in fact well known to the parties and their representatives. I think the facts in Booth can therefore be distinguished accordingly from those in this matter.”[54]
[54] Reasons, [48], quoting from Miller No. 5, [202].
The employer is critical of the brevity of the Member’s discussion in her reasons at [51], which it describes as “the dispositive discussion”. It submits there was “no evaluation undertaken, the findings are a bare conclusion”. It is necessary that the reasons be read as a whole: Beale v Government Insurance Office of NSW.[55] The material quoted by the Member from the decisions of Phillips P sets out relevant principles, taken from accepted authorities, that deal with the application of Anshun estoppel. The Member, in her reasons at [51], refers to “what the authorities can be distilled as saying is for me to find …”. Read in context, this is consistent with an intention on the Member’s part that she apply the authorities discussed in the reasons. The reasons at [51] should be read in conjunction with the wide-ranging summary of principle in the material quoted from Booth and Miller No. 5. Additionally, a number of factual matters relevant to the Anshun issue were not contentious and did not require lengthy discussion (see [29] above).
[55] (1997) 48 NSWLR 430 (Beale).
The employer makes a specific challenge to how the Member dealt with the material produced by the Engadine Medical Centre. It submits the notes demonstrated a pre-existing psychological condition and the Member failed to engage with this evidence. The Member specifically noted that there was a pre-existing psychological condition which the worker had failed to disclose in the initial proceedings (see [29] above). In the reasons at [22] the Member referred to the employer’s submission, that “[t]here can be absolutely no contest on that and, in fact, the [worker] seeks to advance that [the pre-existing condition] at this point in time”. The existence of the pre-existing condition was not contentious.
It may be that the employer is critical of the reasons dealing with reasonableness. The Member dealt with why it was not unreasonable that s 4(b)(ii) was not pursued in the initial proceedings in her reasons at [20]. The Member referred to the opinion of Dr Clark, described as that “upon which [the worker] relied to found his case” in the initial proceedings. She observed that Dr Clark’s opinion was that work events “resulted in [the worker] contracting a disease of gradual onset namely a psychological injury” (emphasis added). This, of course, would potentially support a case pursuant to s 4(b)(i), as opposed to s 4(b)(ii). In her reasons at [23], the Member noted that Dr Clark now gives an opinion “with the benefit of that disclosure” of the pre-existing condition. The Member referred to a report of Mr Greg Anning, a psychologist, dated 27 August 2020, “not available to [the worker] before”. The Member said that Dr Clark’s most recent report, and the report of Mr Anning, supported the worker’s case on the basis of an “aggravation of his pre-existing psychological condition”.[56]
[56] Reasons, [23].
The Member referred to the clinical notes, saying the “clinical records support that Mr Wood was complaining to his treating doctors over time about feeling victimised at work and the increase in psychological symptoms as a result”.[57] Contrary to the employer’s submission the Member did engage with the evidence in the notes, although she regarded the clinical notes as supporting the worker’s case.
[57] Reasons, [29], [31]–[32].
The Member’s analysis, in her reasons at [51], is made against the above background. Her expressed reasoning was that it was not unreasonable that the worker did not pursue a case pursuant to s 4(b)(ii) in the initial proceedings, as he did not have medical evidence to support that argument. The reasons expressed this proposition clearly and did so in the light of the discussion that came before.
There is a helpful summary of the principles governing the duty to give reasons in the judgment of McColl JA in Pollard v RRR Corporation Pty Ltd.[58] Reasons must be adequate for the exercise of a facility for appeal, one should not be left speculating on the basis of a particular finding, the reasons should expose the basis for resolving a point critical to the contest, they should do justice to the parties’ cases. The extent and content of reasons will depend on the case at hand, it is not necessary to spell out every detail of the reasoning process. Reasons should identify the basis of the decision. The primary judge should enter into the issues canvassed and explain why one case is preferred over the other. Where there are credit issues the reasons should explain why the evidence of one witness is preferred to that of another.[59] I note that in Soulemezis v Dudley Holdings Pty Ltd Mahoney JA said:
“In my opinion the law does not require that a judge make an express finding in respect of every fact leading to, or relevant to, his final conclusion of fact; nor is it necessary that he reason, and be seen to reason, from one fact to the next along a chain of reasoning to that conclusion.”[60]
[58] [2009] NSWCA 110 (Pollard).
[59] Pollard, [56]–[65].
[60] (1987) 10 NSWLR 247 (Soulemezis), 271C.
The Member, in my view, conformed with her obligation to give adequate reasons for how she dealt with the Anshun estoppel issue.
Ground No. 1 fails.
GROUNDS NOS. 2 AND 3
Error in finding that the employer had failed to establish a defence based on Anshun estoppel.
Error in the exercise of discretion in finding the principles in Anshun were not made out.
There is overlap between these grounds and it is convenient to deal with them together.
Employer’s submissions
The employer submits the worker, at the time of the initial proceedings, had available clinical notes from the Engadine Medical Centre which dealt with the pre-existing psychological condition. The reason why the worker did not have expert evidence, at the time of the initial proceedings, was because of the worker’s failings in the history he gave to Dr Clark and the failure of Dr Clark to consider the clinical notes when furnishing his opinion.[61]
[61] Employer’s submissions, [11.19]–[11.21].
The employer submits the Member:
(a) overlooked a material fact, in that the worker failed to provide an accurate history to Dr Clark and sought to rely on an inaccurate history;
(b) gave undue weight to Dr Clark’s opinion at the time of the initial proceedings, in finding there was no expert opinion to support a case pursuant to s 4(b)(ii), and
(c) gave undue weight to Dr Clark’s opinion at the time of the initial proceedings, when in fact there was medical evidence (the Engadine Medical Centre clinical notes) that established the existence of a pre-existing medical condition.
The employer submits the above constituted error, referring to Raulston at [19]. It submits the above involved demonstratable misunderstanding of, or a failure to consider, relevant evidence, referring to Henderson v Foxworth Investments Ltd.[62] [63]
[62] [2014] UKSC 41; SLT 775; 1 WLR 2600 at 67.
[63] Employer’s submissions, [11.22]–[11.24].
The employer refers to the Member’s conclusion that it was not unreasonable that the worker failed to pursue an allegation pursuant to s 4(b)(ii) in the initial proceedings, in the absence of appropriate expert evidence. It submits this overlooks the notes from Engadine Medical Centre concerning the pre-existing psychological condition. Dr Clark had, or should have had, that material available when assessing the worker and giving his opinion on causation. He did not due to failure by the worker to provide an accurate history and failure by Dr Clark to consider the relevant clinical notes in any detail.[64]
[64] Employer’s submissions, [11.19]–[11.21].
The employer refers to the principles in House v The King in support of the above.[65] It submits the medical material was “always available” to the worker.[66]
[65] [1936] HCA 40; 55 CLR 499, 505.
[66] Employer’s submissions, [11.26]–[11.34].
Worker’s submissions
The worker refers to the employer’s submissions as involving an argument that what could be gleaned or inferred from clinical material ought to have been given greater weight as indicative of failure on the worker’s part in presenting his claim at first instance. The employer suggests an estoppel is available.
The worker seeks to contrast this with Miller No. 5 where it was identified that the dependents in those proceedings pleaded the original injury in terms of both subs (i) and (ii) of s 4(b), had evidence to support both arguments, but abandoned the s 4(b)(ii) claim at the hearing. This meant that, in Miller No. 8[67] and Miller No. 9,[68] the “relevant fact circumstance required for Anshun estoppel existed. This is not the case here.” The worker submits the employer’s submission that the reasons overlooked the clinical notes from the Engadine Medical Centre is “entirely different” to the circumstance in Miller No. 5 and Miller No. 9.[69]
[67] Miller and Tuhi v Secretary, Department of Family and Community Services [2021] NSWWCC 22.
[68] Miller v Secretary, Department of Communities and Justice (No 9) [2021] NSWPICPD 29 (Miller No. 9).
[69] Worker’s submissions, [21]–[25].
The worker submits the existence or otherwise of a pre-existing psychological condition was not determinative of identifying whether Anshun estoppel was made out. The presence or absence of expert evidence to support a case pursuant to s 4(b)(ii) was “critically relevant” to whether such a case could be advanced in the initial proceedings. A case pursuant to s 4(b)(i) was advanced unsuccessfully in the initial proceedings. The finding by the Member in the second case (injury pursuant to s 4(b)(ii)) was consistent with the findings in the initial proceedings. The worker submits the employer’s arguments simply complain about the body of evidence accepted by the Member in the second proceedings, an argument that should not succeed on appeal.[70]
[70] Worker’s submissions, [28]–[35].
The worker’s evidence
The worker gave a statement to an investigator engaged by the employer’s insurer dated 31 January 2018.[71] In that document he dealt with the alleged theft of a packet of “M & M’s” from his bag at work on 6 January 2018. He stated:
[71] ARD, pp 13–26.
“20. I have not been diagnosed previously for depression, anxiety, stress or any psychological condition.
21. I have suffered from work related stress prior to my current claim due to bullying in the workplace.
…
114. Today I have been asked some questions by the investigator relating to my Workers Compensation Claim. I will give my answers at the foot of each question.
· Have you ever previously lodged a Workers Compensation Claim?
Answer: Yes
· Have you ever previously suffered from anxiety or depression?
Answer: No
· Is there anything in your personal life that has caused you to suffer anxiety or distress?
Answer: No
· Up until your present claim how would you describe your health?
Answer: I have high cholesterol, have severe arthritis in my left hip joint and my right hip is also getting sore. My general health is good.”
The worker gave a further statement dated 20 October 2018 (the date is not clearly legible).[72] It described commencing at Yagoona Woolworths from approximately 2005 and becoming full-time from “around 2008”. He said he eventually found out that people did not like him. He said that in “around 2013” he had an altercation with his manager Michel, who made his life uncomfortable. He described incidents of harassment that he complained about. He said that he saw his GP on 28 July 2015 in relation to psychological injuries. He lodged a claim on 18 August 2015 which was denied in November 2015. He nominates various specific medical consultations. A further claim was denied on 16 September 2016.[73] The worker said that “[e]ventually, barely anyone would talk to [him]”.
[72] ARD, pp 27–34.
[73] Worker’s statement 20/10/18, [5]–[25].
There is a further statement by the worker, the date of which is obscured.[74] When compared with the material attached to the initial ARD, this statement is that dated 17 April 2019. It refers to “Pre-existing injuries”. He nominates various specific medical consultations. This statement refers to visiting Engadine Medical Centre between “2008 to 2014” complaining about “stress and anxiety” relating to his daughter’s “medical issues”. There was a panic attack associated with flying. The worker described multiple incidents that were work associated. He said he was ostracised, his car was scratched, his tyres were slashed, offensive graffiti about him was written on toilet walls. He complained about these things but “nothing was ever done about it”.[75] He said he began to be “micro-managed”.[76] There are descriptions of multiple incidents and abuse. He described being given a “special job” when on light duties due to a hip injury. He said other employees “laughed and took photos”, he was “very upset”.[77] He said he ceased employment in February 2018 as he “had finally had enough”. He was referred to a psychiatrist, Dr Lombardi, and a psychologist, and placed on medication. He has not worked since 19 February 2018, when he was certified as totally incapacitated.[78]
[74] ARD, pp 35–50.
[75] Worker’s statement, undated, [6]–[9], [15]–[16].
[76] Worker’s statement, undated, [25].
[77] Worker’s statement, undated, [39]–[42].
[78] Worker’s statement, undated, [44]–[46], [66].
The worker gave a further statement, described as “supplementary”, dated 14 April 2021.[79] This document includes:
“6. Most of my complaints of anxiety that wasn’t work related happened many years ago and as such when asked about them in the past I would not remember. Only going through the claim process have I had to think hard about my prior complaints of anxiety and stress, and even then because of my lack of understanding, I thought those complaints were not relevant to these complaints as they were caused by a different stressor and a long time ago.
7. Also, the anxiety I had previously experience[d] differs so much from what I have experienced as a consequence of the bullying and harassment I was subjected to at Woolstar, that I thought there was no relevance, and that these injuries are a thing of their own but I now understand that despite my prior complaints nots [sic] being directly related to the current claim they show a background of anxiety which is necessary information for a medical assessor to consider.
8. My solicitors have recently provided me with all my clinical notes to prompt my memory of my pre-existing complaints.”
[79] ARD, pp 1–12.
The supplementary statement includes a description of complaints of a generally psychological nature, from 5 March 2008 to 2014. The stressors mentioned include his daughter’s health problems, aircraft flights, drinking too much coffee and his wife’s pregnancy. He stated the complaints of anxiety were “sporadic” with long periods in between. He stated these complaints did not prevent him performing his functions as “an employee or father”.[80]
[80] Supplementary statement, [6]–[10].
Dr Clark’s reports
Dr Clark, a forensic psychiatrist qualified in the worker’s case, first reported on 4 July 2018.[81] The doctor recorded that the worker had “always been a tense individual”. He recorded that the worker had “no prior psychiatric history”. The doctor took a history of bullying at work and diagnosed an Adjustment Disorder, which he said was “a direct precipitant of his reaction”. Dr Clark assessed permanent impairment at 23 per cent.
[81] ARD, pp 126–140.
Dr Clark assessed the worker again and reported on 28 February 2019.[82] On this occasion the doctor recorded a past history:
“Mr Woods [sic] has a prior psychiatric history. Following the birth of his daughter, he became anxious. This was in 2008. In March 2009, his GP referred him to a psychologist.
He has also consulted a geneticist. No hereditary element was found in regards to his daughter’s problems.
He attends his GP for physical complaints. He attended his GP for anxiety issues following his workers’ compensation events. This started in 2013 and continued to the present time.”
[82] ARD, pp 141–148.
Dr Clark referred to attendances by the worker on his general practitioner from 5 March 2008. He noted the attendances for anxiety and depression were “first related to his daughter’s illness” and that in “March 2009, his GP referred him to a psychologist”. Dr Clark’s specific references to various treatment dates (ranging from 5 March 2008 to 8 April 2014) suggest that he had access to some treating records when preparing this report.[83] Dealing with the prior history, Dr Clark said:
“Mr Woods [sic] did have a depression and anxiety following his daughter's birth. However, there is no evidence presented that he was psychiatrically impaired on that occasion, as he is now. There is no reason to suggest he therefore had a significant pre-existing psychiatric impairment at the time of the harassment at work.”
[83] ARD, pp 143–144.
On this occasion Dr Clark changed his diagnosis to that of a Major Depressive Disorder. This was because the previously diagnosed Adjustment Disorder had failed to resolve. His opinion on permanent impairment did not change.
Dr Clark reported again on 17 September 2020, following a re-examination on that date.[84] This was after the decision in the initial proceedings, which was issued on 5 August 2019. Dr Clark recorded that the worker had deteriorated. The diagnosis had changed to Persistent Depressive Disorder. This was largely due to the time over which the condition had persisted. Dr Clark described this condition as “precipitated by his employment”. Dr Clark’s third report set out the following question and answer:
“Considering our [client’s] history of prior psychological complaints relating to anxiety, do you consider that our [client’s] current condition could be considered an aggravation of his pre-existing psychological condition? Please explain.
The only pre-existing condition is related to his caring for his daughter, who has a congenital microcephaly. The psychiatric condition sustained as a consequence of the nature and conditions of his employment is an aggravation of his pre-existing psychiatric condition.”
[84] ARD, pp 104–118.
Mr Anning’s report
The worker’s case, in the current proceedings, includes a report of Mr Anning, a psychologist qualified by the worker’s solicitors. Mr Anning examined the worker on 14 August 2020 and reported on 27 August 2020.[85] Mr Anning recorded a past history of the worker struggling and being referred to a psychologist, who he saw for a short period of time when his daughter was born with a cleft palate in 2009. The worker believed he was prescribed medication to help him sleep.
[85] ARD, pp 84–103.
Mr Anning reviewed the documentation furnished to him by the solicitors. He summarised relevant material from the Engadine Medical Centre; recording that he had been asked to “give some attention to complaints that were not work related”. He referred to a report from Dr Ayliff (who treated the worker at the Centre) dated 11 July 2018. Dr Ayliff was unaware of any prior history of mental health conditions. Mr Anning noted the earliest mention of “workplace bullying harassment” was on 23 May 2014. From items prior to that time, Mr Anning noted the following:
(a) 5 March 2008 – insomnia and anxiety for four months since the birth of his first child. He was referred to a psychologist, placed on a mental health plan and reported a panic attack during a flight.
(b) 12 March 2009 – anxiety, drinks a lot of coffee, low libido. Mental Health Plan review.
(c) 6 November 2009 – anxious, Zyprexa, wife expecting any day, ultrasound showed cleft lip and palate.
(d) 1 May 2012 – Diazepam for anxiety with flying. 15 February 2013 Diazepam ceased and Xanax added.
(e) 8 April 2014 – Mental Health Plan.
(f) 4 August 2015 – bullied at work.
The entries thereafter were, in a general sense, work related, predominantly of a psychological nature, but also related to being off for a work-related left hip injury and being bullied on his return. Mr Anning sets out multiple dates when psychological complaints were made, based on being bullied and harassed at work, between 2 May 2018 and 21 January 2020.[86]
[86] ARD, pp 96–97.
Mr Anning diagnosed a Major Depressive Disorder “causally related to the bullying and harassment [the worker] was subject to”. He noted there was no mention of “non-work related psychological difficulties after 8 April 2014”. He described the prognosis for significant recovery as poor and said that on “reviewing past reports it appears that his psychological condition has deteriorated”.[87]
[87] ARD, p 99.
Consideration
The submission that the Member overlooked the worker’s failure, in the initial proceedings, to provide an accurate history to Dr Clark is wrong. In her reasons at [21], the Member specifically said it was common ground that the worker failed to disclose his prior condition and that the initial proceedings failed partly because the Member could not rely on Dr Clark’s opinion for that reason. It clearly was not something that she overlooked. The submission is, in any event, partly based on a false premise. Dr Clark, in his first report dated 4 July 2018, did not record a prior psychiatric history. In his second report dated 28 February 2019 he took a history of prior psychiatric symptoms and treatment (see [58] to [59] above). Both of these reports were included in the material attached to the ARD in the initial proceedings.
The Member, in the reasons at [51], said it was not unreasonable that the worker did not run a case pursuant to s 4(b)(ii) in the initial proceedings, as he “did not have expert evidence that supported that case”. The employer submits the Member gave undue weight to Dr Clark’s opinion at the time of the initial proceedings, when in fact there was medical evidence (the Engadine Medical Centre clinical notes) that established the existence of a pre-existing medical condition.
The fundamental point made by the Member in her reasons at [51] was that the worker, in the initial proceedings, did not have opinion evidence from a medical expert to establish a case on the basis of s 4(b)(ii). This was a different matter to a consideration of whether evidence at that time proved the presence of a pre-existing psychological condition. In context, the Member at [51] was clearly referring to whether appropriate expert medical opinion evidence to support a case pursuant to s 4(b)(ii) was then available. There is a distinction to be drawn between expert opinion evidence, and evidence that establishes medical facts such as complaints, symptoms and treatment from time to time. To establish a case on causation, to prove injury within the meaning of s 4(b)(ii) in the initial proceedings, would have required appropriate expert opinion evidence. In Lithgow City Council v Jackson the plurality at [66] said:
“The respondent’s proposition is that it was not probable that his injuries resulted from a stumble onto the drain from one of its sides and a heavy fall, but that it was probable that they resulted from a fall from the vertical wall. That proposition is not self-evident. To establish it would call for more than the application of ‘commonsense’ or the court's experience of ordinary life. The proposition turns on an inference from the nature of the respondent’s injuries to their probable cause. That inference could only be drawn in the light of expert medical evidence.”[88]
[88] [2011] HCA 36; 244 CLR 352, [66].
In Australian Iron & Steel Ltd v Connell Menzies J said:
“Except where a fact is too notorious to require proof or to admit of disproof so that judicial notice is to be taken of it, the Court is confined to the evidence that has been given in the case and, although it can rely upon ‘experience’ or ‘a common sense approach’ in deciding the use it will make of evidence that has been given (see, for instance, Adelaide Stevedoring Co. Ltd. v. Forst [1940] HCA 45; (1940) 64 CLR 538), it cannot supplement expert evidence by resort to such sources: see Hetherington v. Amalgamated Collieries of W.A. Ltd. [1939] HCA 36; (1939) 62 CLR 317, per Dixon J. (1939) 62 CLR, at p 335.”[89]
[89] [1959] HCA 54; 102 CLR 522, 535–536. See also Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720, 725, Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42, [67].
The material from the Engadine Medical Centre, relevantly, was probative of complaints of a psychological nature, that predated the alleged aggravation injury. It was not, of itself, probative of injury by way of the aggravation, acceleration, exacerbation or deterioration of a disease within the meaning of s 4(b)(ii) of the 1987 Act (the case the worker now brings). Such a finding of injury would not have been properly available on the basis of ‘commonsense’ or the experience of ordinary life of the court or tribunal. The Member’s finding that the worker did not, in the initial proceedings, have opinion evidence from a medical expert to establish a case on the basis of s 4(b)(ii) was correct.
The employer submits the Member gave undue weight to Dr Clark’s opinion at the time of the initial proceedings, in finding there was no expert opinion to support a case pursuant to s 4(b)(ii). In Shellharbour City Council v Rigby Beazley JA (as her Honour then was) said:
“Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”[90]
[90] [2006] NSWCA 308, [144].
Dr Clark’s was the expert medical evidence on which the worker relied, in the initial proceedings, in an unsuccessful attempt to prove her case on causation pursuant to s 4(b)(i). The employer’s submissions in the initial proceedings were referred to by Arbitrator Homan:
“[Counsel for the employer] submitted that the injury had been pleaded as one falling within s 4(b)(i) having regard to Dr Oldtree Clark’s opinions and assessment and not one falling within s 4(b)(ii) of the 1987 Act. The claim was not of a pre-existing condition being made worse or aggravated by employment.”[91] (emphasis added)
[91] Initial decision, [134].
That case failed on the basis that there was a failure to disclose the prior medical history that “impacted both the credibility of the [worker’s] lay evidence and the reliability of the expert evidence.” It was said there were deficiencies in the “historical foundation” of the reports from Dr Clark and Dr Ayliff (see [3] above).[92] Arbitrator Homan concluded:
“I am not satisfied that the [worker] has discharged the onus of proof. I am not satisfied that the [worker] has contracted a psychological injury as pleaded.”[93] (emphasis added)
[92] See Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58, Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505, 509–510.
[93] Initial decision, [191].
It was not a question of the Member, in the current proceedings, giving (as the employer argues) undue weight to the opinion of Dr Clark. The explanation for the failure of the initial proceedings is apparent from the reasons of the Arbitrator who dealt with the matter. The submission that the medical material was “always available” to the worker is incorrect. The fact that evidence of pre-existing psychological complaint was available to the worker at the time of the initial proceedings was not to the point. The evidence that was found not to have been available at that time was expert medical opinion evidence capable of discharging the worker’s onus of establishing injury within the meaning of s 4(b)(ii) of the 1987 Act.
Some principles relating to Anshun
The above leaves the issue regarding the reasonableness of the worker’s failure to provide an accurate history to Dr Clark, and the worker’s reliance, in the initial proceedings, on an inaccurate history. These matters are bound up with the defence based on Anshun and the issue of the reasonableness of the worker running the case as he did in the initial proceedings.
In Anshun the plurality quoted from the speech of Sir James Wigram V.C. in Henderson v Henderson, which included the following:
“… where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”[94]
[94] (1843) 3 Hare 100, at p 115 (67 ER 313, at p 319).
The plurality referred also to Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd[95] in which it was said that it was “an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings”. This statement was described by the plurality as taking the principle “too far” and as being “unsupported by authority”.[96] Their Honours in Anshun also said:
“37. In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few …
38. It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment.
…
40. By ‘conflicting’ judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.”[97]
[95] (1975) AC 581.
[96] Anshun, [34].
[97] Anshun, [37]–[40].
McColl JA in Habib described this as “the rejection in Anshun of the English test (‘could and should’) for the application of the extended doctrine of res judicata.”[98] In Habib McColl JA described the test in Anshun as “one of reasonableness”.[99] Her Honour said:
“Thus Anshun estoppel introduces ‘an evaluative element based upon what a litigant could reasonably have been expected to do in earlier proceedings’; it is ‘allied to, but not co-extensive with, res judicata and issue estoppel’.[100] (excluding references)
[98] Habib, [146].
[99] Habib, [81].
[100] Habib, [82].
Her Honour also quoted with approval from the following passage in the speech of Lord Bingham in Johnson v Gore Wood & Co (a firm):
“… there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”[101] (emphasis in original)
[101] [2000] UKHL 65; [2002] 2 AC 1 (Johnson) at 31, quoted in Habib at [86].
In Champerslife Pty Ltd v Manojlovski Giles JA (Allsop P and Handley AJA agreeing) said:
“Anshun estoppel is sometimes referred to as an extended res judicata doctrine. As was succinctly stated by Handley AJA, with whom Allsop P and Tobias JA relevantly agreed, in Meriton Apartments Pty Ltd v Industrial Court of New South Wales [2009] NSWCA 434 at [60], ‘[t]he Anshun test is based on the reasonableness or otherwise of the conduct of a litigant in earlier proceedings’. The statement may need to be supplemented to allow for the conduct of a person who was not a litigant in earlier proceedings, but its point is the test of unreasonableness.”
“Anshun estoppel is founded on unreasonable conduct, not abuse of process. The concepts are, however, not dissimilar. Johnson v Gore Wood & Co rejects a mechanical approach and requires regard to all the circumstances: in particular, it affirms that the fact that a matter could have been raised in earlier proceedings does not mean it should have been, or that there was abuse of process. It is the same where the question is the reasonableness or otherwise of conduct in litigating or not litigating a claim …”.[102]
[102] [2010] NSWCA 33; 75 NSWLR 245 (Manojlovski), [39], [89].
Application of the Anshun defence
The Member correctly observed that the onus to establish a defence based on Anshun rested on the employer. She said that for the defence to succeed it would be necessary that she find that it was unreasonable, on the worker’s part, not to run the s 4(b)(ii) aggravation case in the initial proceedings, in the absence of expert evidence to support it. She said that “without that evidence he could not run that case”.[103] This is a simple and persuasive argument. The employer raises the failure of the worker to provide a history of his previous psychiatric history, and the failure of his medical case (essentially based on Dr Clark) to deal with that history.
[103] Reasons, [51].
In the worker’s first statement dated 31 January 2018 he denied any previous psychological condition. In his statement dated 17 April 2019 he described “Pre-existing injuries” involving stress and anxiety related to the worker’s daughter and panic attacks associated with flying. Dr Clark first reported on 4 July 2018. The history recorded was that the worker had always been “a tense individual”, however he denied any prior psychiatric history. Dr Clark re-examined the worker and reported on 28 February 2019. Dr Clark’s second report included a history of anxiety and referral to a psychologist following the birth of the worker’s daughter. The initial proceedings were commenced by way of the Application to Resolve a Dispute dated 2 May 2019 (the initial ARD). The two reports from Dr Clark, and statements of the worker dated 31 January 2018, 20 October 2018 and 17 April 2019, were attached to the initial ARD.[104] That is, the initial ARD included the later report and statement that referred to the prior psychological history. The treatment record from the Engadine Medical Centre, which included the material relevant to the prior psychiatric history, was also attached to the initial ARD.[105] The initial proceedings were conducted on the basis of evidentiary material that acknowledged and dealt with the prior psychiatric history.
[104] Initial ARD, pp 1–23, 603–616, 677–702.
[105] Initial ARD, pp 35–587.
Having been furnished with this additional history, Dr Clark did not express any altered view regarding causation. He changed his diagnosis to reflect the fact that the originally diagnosed Adjustment Disorder had failed to resolve. It therefore did not fit the definition of an Adjustment Disorder and a diagnosis of Major Depressive Disorder was made.[106] The doctor’s comments regarding whether the worker’s “pre-existing psychological complaints have contributed to his current psychological condition” are described at [59] above. The doctor’s further opinion in his second report did not suggest that his views on causation were altered by the additional history. Dr Clark’s opinion remained one that would not, at that time, have supported the occurrence of ‘injury’ within the meaning of s 4(b)(ii) of the 1987 Act.
[106] ARD, p 144.
The worker’s statement dated 14 April 2021 described his reasons for not initially including reference to his prior psychiatric history (see [55] above). In essence he said the complaints were a long time ago, he had trouble remembering them and he thought they were not relevant.
It follows from the above that the worker, after not originally including reference to his prior psychiatric history, did so in his history to Dr Clark recorded in the report dated 28 February 2019, and in his statement dated 17 April 2019. Having been furnished with this additional history, Dr Clark did not suggest any significant change to his views on causation. The doctor’s second report did not involve expert opinion that would have supported, on a medical basis, the worker bringing a case pursuant to s 4(b)(ii). The worker brought, and pursued to conclusion, a claim based on injury pursuant to s 4(b)(i). The worker acted reasonably in not seeking to prosecute a claim pursuant to s 4(b)(ii) in the initial proceedings after obtaining Dr Clark’s second report, which did not support such a course. It was only in his third report, dated 17 September 2020, that Dr Clark expressed an opinion that supported injury on the basis of aggravation (see [61] above).
It follows from the above that, in presenting his case in the initial proceedings as one within the meaning of s 4(b)(i), the worker was running the only available medical case on causation for which he had specialist medical support. The evidence overall supports the Member’s conclusion that the worker did “not run the section 4(b)(ii) case because he did not have expert evidence that supported that case”. The passage from Manojlovski quoted at [80] above describes the focus of the Anshun test as being based “on the reasonableness or otherwise of the conduct of a litigant in earlier proceedings” and said “its point is the test of unreasonableness”. The passage of Habib quoted at [78] above refers to “an evaluative element based on the reasonableness or otherwise of the conduct of a litigant in earlier proceedings”. It was not unreasonable that the worker pursued his claim, in the initial proceedings, on the only basis reasonably open to him on the medical opinion then available.
The two limbs of s 4(b) of the 1987 Act are related to the extent that both deal with injury in the context of the ‘disease’ provisions. The provisions apply in different factual circumstances. One would not anticipate that failure to pursue the claim pursuant to s 4(b)(ii) in the initial proceedings would result in conflicting judgments. In the circumstances the initial decision of Arbitrator Homan, that injury pursuant to s 4(b)(i) was not established, does not conflict with the Member’s finding in the current proceedings that injury by way of aggravation was established.
The Member did not err in her conclusion regarding the application of the defence pursuant to Anshun.
Grounds Nos. 2 and 3 fail.
GROUND NO. 4
Error in finding an injury consistent with s 4(b)(ii) of the 1987 Act was not inconsistent with the award for the employer in the initial proceedings.
Employer’s submissions
The employer refers to the reasons at [51]. It submits the Member placed reliance on Mr Anning’s report (referring to the reasons at [35]). It submits that Mr Anning opined that employment caused the injury[107] (consistent with injury pursuant to s 4(b)(i)) and also opined that bullying and harassment aggravated the condition (consistent with s 4(b)(ii)). It submits the finding of injury was dependent on Mr Anning’s opinion, and Mr Anning considered the injury was caused by the employment and then aggravated by the employment. It submits this finding was inconsistent with the findings in the initial proceedings.[108]
[107] ARD, pp 99–100.
[108] Employer’s submissions, [11.35]–[11.39].
Worker’s submissions
The worker submits the submissions on this ground are simply complaints about the failure of the Member to accept the employer’s arguments.[109]
[109] Worker’s submissions, [36]–[37].
Consideration
It is necessary that the reasons be read as a whole. The fact finding the subject of this ground appears at [32] to [39] of the reasons, which read:
“32. … When I have regard to all of the evidence I too find that there were various events that took place at work over time that Mr Wood perceived as bullying and harassment. It is clear from the clinical records that he sought medical help as a result of increasing psychological symptoms as a result of what he perceived as victimisation at work. There is nothing in the evidence from Woolstar that would serve to refute in any meaningful way the evidence given by Mr Wood as to what he perceived took place.
33. It is not in contest that Mr Wood had a pre-existing psychological condition.
34. It is not in contest that he now has a Major Depressive Disorder. The expert opinion is unanimous in this opinion.
35. Dr Anning, IME qualified on behalf of Mr Wood, opines that:
‘I’m of the opinion that the bullying and harassment he experienced whilst employed with Woolworths aggravated his condition. Furthermore, Mr Woods [sic] developed a significant depressive condition causally related to the bullying and harassment.’
36. There is no other contributing factor outside of work that Dr Anning identifies as causing an aggravation of Mr Wood’s pre-existing psychological condition. There is no other medical evidence that points to factors outside of work that contributed to the aggravation of Mr Wood’s pre-existing condition.
37. Dr Kaplan, IME qualified on behalf of Woolstar, opines that Mr Wood had ‘now developed a depressive disorder that has arisen subsequent to his departure from work.’ Dr Kaplan says that can be best attributed to the difficulty in resolving the claim, his sense of failure and victimisation. Whilst I note Dr Kaplan has the benefit of the opinions of Dr Oldtree-Clark and Dr Anning, he does not have the benefit of the clinical records. He is not asked whether Mr Wood has suffered an aggravation of a pre-existing psychological condition.
38. When I weigh all of the evidence in the balance I prefer the opinion of Dr Anning to that of Dr Kaplan.
39. When I weigh all of the evidence in the balance I am satisfied on the balance of probabilities that Mr Wood has suffered an aggravation of a pre-existing psychological condition and his employment was the main contributing factor to the aggravation.”
The Member, in her reasons at [15] to [19], briefly recited the nature of the initial proceedings and observed it was common ground that the worker could not run a case alleging injury pursuant to s 4(b)(i). She was clearly aware of the estoppel that flowed from the initial proceedings. She specifically noted the common ground that the worker suffered from a pre-existing psychological condition (at [33]). She quoted a passage of Mr Anning’s report that referred to both the aggravation of the worker’s condition and the development of a depressive condition. She did not specifically accept or reject any part of that passage (at [35]). She then noted (at [36]) that neither Mr Anning nor any other medical evidence identified contributing factors outside work that contributed to the aggravation. She specifically noted that Dr Kaplan did not have the benefit of the clinical records and was not asked to comment on the issue of aggravation. She said that she preferred the evidence of Mr Anning to that of Dr Kaplan. She concluded that there had been an aggravation injury to which employment was the main contributing factor.
On a fair reading of the above, the Member proceeded on the basis that there was a pre-existing condition, that the case was brought pursuant to s 4(b)(ii) on the basis of aggravation, and that a finding that the condition was caused by employment was precluded by the decision in the initial proceedings. The only finding that she made was of the aggravation injury. None of this was inconsistent with the decision in the initial proceedings or with the basis on which the current proceedings were brought.
The employer submits that, because the Member relied on Mr Anning’s opinion, and Mr Anning’s opinion referred in part to the development of a depressive condition, this amounted to a finding by the Member of injury pursuant to s 4(b)(i), inconsistent with the estoppel that flowed from the decision in the initial proceedings and with the finding pursuant to s 4(b)(ii). The main impediment to this argument is that the Member did not make such a finding. Her fact finding carefully restricted itself to the issue of aggravation, which was the only case brought in the current proceedings.
The Member referred to the opinion of Mr Anning in support of her finding of an aggravation injury. This did not mean that she accepted all aspects of Mr Anning’s opinion, much less that she necessarily made findings consistent with all aspects of it:
“… the task of the judge is to decide, on the basis of the whole evidence (denials and all), what he or she accepts. In doing that, there is no requirement for the judge to accept the whole of the evidence of any one witness”.[110]
[110] Chanaa v Zarour [2011] NSWCA 199 (per Campbell JA, Bathurst CJ and Tobias AJA agreeing), [86]. See also Abalos v Australian Postal Commission [1990] HCA 47;171 CLR 167, [30].
The error alleged in Ground No. 4 is not made out. Ground No. 4 fails.
GROUND NO. 5
Error in the assessment of evidence and approach to causation pursuant to s 4(b)(ii) of the 1987 Act.
Employer’s submissions
The employer submits the Member found an aggravation injury pursuant to s 4(b)(ii), referring to the reasons at [39]. It refers to the Presidential decision in AV v AW.[111] The finding of injury required satisfaction that employment was the ‘main contributing factor’ to the relevant aggravation injury. It submits that Mr Anning considered employment caused the injury and ‘bullying and harassment’ aggravated it. It submits that the Member referred to Dr Kaplan’s report and the Member identified aggravating factors that were extraneous to the employment.
[111] [2020] NSWWCCPD 9 (AV).
The employer submits the Member “did not point to any medical evidence which weighed the contribution of the pre-existing psychological condition against the contribution from employment and did not consider same in providing her decision”. The employer submits there was an absence of evidence in the worker’s case dealing with whether employment was the ‘main contributing factor’. It submits the worker could not discharge his onus and the Member erred in her consideration of s 4(b)(ii). It submits this materially affected the result.[112]
[112] Employer’s submissions, [11.40]–[11.45].
Worker’s submissions
The worker refers to settled principles that govern appeals pursuant to s 352 of the 1998 Act. The worker submits the Member’s course was properly available to her on the evidence. It is submitted the employer’s submissions are again merely complaints with respect to failure on the part of the Member to accept one body of evidence as opposed to another.[113]
[113] Worker’s submissions, [38]–[45].
Consideration
The employer refers to an absence of evidence weighing the contribution of the pre-existing condition against the contribution from the employment. Murray v Shillingsworth[114] was a case involving an aggravation injury within the meaning of s 4(b)(ii), at a time when it was necessary that such injuries satisfy s 9A of the 1987 Act (‘substantial contributing factor’) rather than the test of ‘main contributing factor’ that now applies. The employer in Murray argued that for s 9A to be satisfied, it was insufficient that the employment be a substantial contributing factor to the aggravation, it was necessary that it be a substantial contributing factor to a “fully blown injury”. Rejecting this submission, Einstein J (Hodgson and Santow JJA agreeing) said:
“63. These submissions are misconceived. They fail to recognise that in the circumstance concerning an integer dealt with by s 4(b) (ii) [such as an aggravation of a disease] the only compensation is for the effect of the aggravation and not for the effect of the original non - aggravated disease.
64. His Honour approached the question of construction upon the basis that the case was put as an acceleration or aggravation or deterioration of a pre-existing atherosclerotic condition in which the substantial contributing factor had to relate to the acceleration or aggravation, and not to the underlying condition. There was no error in this approach.”[115] (emphasis in original)
[114] [2006] NSWCA 367 (Murray).
[115] Murray, [63]–[64].
The employer refers to AV, in which I considered the operation of s 4(b)(ii) in its current form. In that decision I said:
“(a) The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b) The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c) In a matter involving s 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.”[116] (emphasis added)
[116] AV, [78].
The approach in (c) above is consistent with that taken, dealing with ‘substantial contributing factor’, in Murray. The employer does not argue, in this appeal, that AV was wrongly decided. It follows that the reference to weighing the contribution of the pre-existing condition against the contribution from the employment is misconceived.
The Member’s reasoning dealing with ‘injury’ is quoted at [92] above. In her reasons at [36] the Member makes a finding:
“There is no other contributing factor outside of work that [Mr] Anning identifies as causing an aggravation of Mr Wood’s pre-existing psychological condition. There is no other medical evidence that points to factors outside of work that contributed to the aggravation of [the worker’s] pre-existing condition.”
The above finding is consistent with a conclusion that employment was the ‘main contributing factor’ to the aggravation injury. It is sufficient to support the Member’s formal finding in her reasons at [52], that the worker “suffered an aggravation of a disease to which his employment was the main contributing factor”.
Ground No. 5 fails.
GROUND NO. 6
Error in failing to give proper, or lawful, reasons concerning the determination of causation.
Employer’s submissions
The employer submits the Member recited the submissions and opinions concerning causation. It submits the “determination of the issue is found at paragraphs [38] and [39]” of the reasons. It submits the Member said the whole of the evidence has been “weighed”, but did not expose why she came to her decision. The employer again refers to its earlier submissions dealing with the nature of the duty and to Christensen, quoted in support of its submissions dealing with Ground No. 1.[117]
[117] Employer’s submissions, [11.46]–[11.48].
Worker’s submissions
The worker submits the employer’s arguments are complaints about the acceptance of “one body of evidence as opposed to another”. It relies on its submissions dealing with Ground No. 1.[118]
[118] Worker’s submissions, [46]–[47].
Consideration
It is not apparent why, if the employer sought to challenge the adequacy of the Member’s reasons, it has done so in two separate grounds (Nos. 1 and 6) which use substantially similar arguments and which rely on the same authorities. This is simply repetitive. In its submissions dealing with Ground No. 1, the employer submitted the dispositive reasons relating to Anshun were found in the reasons at [51], and then sought to argue that these, viewed on their own, were inadequate. In Ground No. 6 it submits the determination of the issue of causation is to be found solely at [38] to [39] of the reasons. It submits these paragraphs fail to expose why the result was arrived at.
My reasons dealing with Ground No. 6 should be read together with the reasons dealing with Grounds Nos. 1, 4 and 5. Again, it should be noted that it is necessary that the reasons be read as a whole.[119] It would involve a wilful misreading of the reasons to proceed on the basis that the dispositive reasons were restricted to what appears at [38] to [39]. The Member’s reasoning on the causation issue is largely set out at [92] above, which quotes from the Member’s reasons at [32] to [39]. I also note the reasons at [28] where the Member said: “[t]here is no real dispute on the evidence that various real events took place at work over time which Mr Wood perceived as bullying and harassment.” I note the Member’s reasons at [29] which include:
“The clinical records support that Mr Wood was complaining to his treating doctors over time about feeling victimised at work and the increase in psychological symptoms as a result.”
[119] Beale.
The Member gave reasons for not accepting the opinion of Dr Kaplan, on which the employer relied.[120] She specifically preferred the opinion of Mr Anning regarding the aggravation of the pre-existing disorder. She noted it was uncontested that the worker had a pre-existing psychological condition and “now has a Major Depressive Disorder”. She stated there were no factors outside of work that, on the medical evidence, contributed to the aggravation. In seeking to confine the discussion of the reasons on ‘causation’ to what appears at [38] to [39], the employer’s submissions seek to deal with the formal findings of fact there appearing without appropriate reference to the discussion that precedes those findings.
[120] Reasons, [37]–[38].
The Member’s reasons comply with s 294 of the 1998 Act. They comply satisfactorily with the requirement to furnish reasons as discussed in Pollard and Soulemezis discussed above dealing with Ground No. 1.
Ground No. 6 fails.
CONCLUSION
The various grounds have failed. The appeal fails.
ORDERS
Leave to appeal an interlocutory decision is granted pursuant to s 352(3A) of the 1998 Act.
The Certificate of Determination dated 23 September 2021 is confirmed.
Michael Snell
DEPUTY PRESIDENT
4 July 2022
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