Wyatt v MR & RC Smith Pty Ltd
[2008] WASCA 55
•11 MARCH 2008
WYATT -v- M R & R C SMITH PTY LTD [2008] WASCA 55
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 55 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:47/2007 | 6 FEBRUARY 2008 | |
| Coram: | WHEELER JA PULLIN JA BUSS JA | 10/03/08 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | ROBERT BRUCE WYATT M R & R C SMITH PTY LTD |
Catchwords: | Workers' compensation Issue estoppel First arbitrator asked to determine 'degree of disability' relating to a worker's injury First arbitrator dismissed the application for determination Second arbitrator asked later to determine 'degree of disability' in relation to the same injury with new information Whether an issue estoppel precluded the second arbitrator from determining the 'degree of disability' Statutory task of the arbitrator is the determination of the worker's overall 'degree of disability' and not merely whether the 'degree of disability' is not less than the nominated level Meaning of 'new information' within s 186 of the Workers' Compensation and Injury Management Act 1981 (WA) Proper construction of s 186 |
Legislation: | Workers' Compensation and Injury Management Act 1981, s 93C, s 93D, s 93E, s 186, s 254 |
Case References: | Blair v Curran (1939) 62 CLR 464 Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853 Jackson v Goldsmith (1950) 81 CLR 446 Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 Murphy v Abi-Saab (1995) 37 NSWLR 280 Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159 Ramsay v Pigram (1968) 118 CLR 271 Resa Shipping Co SA v Edmunds [1985] 1 WLR 948 Rogers v The Queen (1994) 181 CLR 251 Sandford v W & R Porteous (Unreported, C11/2006, 30 May 2006) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WYATT -v- M R & R C SMITH PTY LTD [2008] WASCA 55 CORAM : WHEELER JA
- PULLIN JA
BUSS JA
- Appellant
AND
M R & R C SMITH PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISPUTE RESOLUTION DIRECTORATE, WORKCOVER WA
Coram : COMMISSIONER NISBET QC
File No : C 13 of 2007
Catchwords:
Workers' compensation - Issue estoppel - First arbitrator asked to determine 'degree of disability' relating to a worker's injury - First arbitrator dismissed the application for determination - Second arbitrator asked later to determine 'degree
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of disability' in relation to the same injury with new information - Whether an issue estoppel precluded the second arbitrator from determining the 'degree of disability' - Statutory task of the arbitrator is the determination of the worker's overall 'degree of disability' and not merely whether the 'degree of disability' is not less than the nominated level - Meaning of 'new information' within s 186 of the Workers' Compensation and Injury Management Act 1981 (WA) - Proper construction of s 186
Legislation:
Workers' Compensation and Injury Management Act 1981, s 93C, s 93D, s 93E, s 186, s 254
Result:
Leave to appeal granted
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr B L Nugawela
Respondent : Mr B A Mangan
Solicitors:
Appellant : Peter J Griffin & Co
Respondent : Lavan Legal
Case(s) referred to in judgment(s):
Blair v Curran (1939) 62 CLR 464
Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853
Jackson v Goldsmith (1950) 81 CLR 446
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
Murphy v Abi-Saab (1995) 37 NSWLR 280
Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159
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Ramsay v Pigram (1968) 118 CLR 271
Resa Shipping Co SA v Edmunds [1985] 1 WLR 948
Rogers v The Queen (1994) 181 CLR 251
Sandford v W & R Porteous (Unreported, C11/2006, 30 May 2006)
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1 WHEELER JA: I agree with Buss JA.
2 PULLIN JA: I agree with Buss JA.
3 BUSS JA: On 17 September 2003, the appellant, in the course of his employment by the respondent as a manager and senior motor mechanic, injured his knees. The injury caused him pain. The appellant has had surgery on his knees, but says the pain has not improved. He complains of chronic pain, and also psychiatric difficulties arising from the accident.
The First Form 22 application
4 On or about 28 April 2005, the appellant filed a Form 22 (the First Form 22) pursuant to s 93D of the then Workers' Compensation and Rehabilitation Act 1981 (WA) (the Act), seeking a determination that his 'degree of disability' was not less than 30%.
5 By s 93C and s 93E(3)(a), in essence, damages can only be awarded in a common law action for negligence for personal injuries, brought by a worker against his or her employer, if it is agreed or determined that the 'degree of disability' of the worker (assessed in accordance with s 93D(2)) is not less than 30%, and that agreement or determination is recorded in accordance with the regulations. Also see s 93C, s 93E(3)(b) and s 93E(4) in relation to a 'degree of disability' of not less than 16%. After the First Form 22 was filed, the name of the Act was amended to the Workers' Compensation and Injury Management Act 1981 (WA).
6 In the First Form 22, the appellant described his claimed disability as 'right and left knee injuries'. Subsequently, the description of the claimed disability was amended, as follows:
The injuries, diseases and/or consequences are right leg at or above the knee, left leg at or above the knee and psychiatric flow-on symptoms.
7 The appellant and the respondent were unable to agree on whether the 'degree of disability' was not less than 30% and, in consequence, the dispute fell to be dealt with under Part XI and, for that purpose, an application was taken to have been made by the appellant under s 181. See s 93D(10).
8 On 20 January 2006, the First Form 22 application was heard by Arbitrator D M Whitford-Harvey. On 14 February 2006, the Arbitrator decided that the application should be dismissed, and on 28 February 2006 he published reasons for that decision.
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9 The Arbitrator made a finding that the appellant had suffered a 22.05% permanent disability in relation to his lower limbs [32].
10 The Arbitrator then addressed the psychiatric evidence. The appellant relied on a report dated 19 August 2005 from Dr Stephen Proud, a consultant psychiatrist. Dr Proud said, relevantly:
a) The current psychiatric disability in this instance is 20% because Mr Wyatt has serious symptomatology (suicidal ideation).
b) The permanent psychiatric disability in this instance is 15% because with adequate treatment of his depression he will still be left with 'moderate and regular symptoms'. This estimation of permanent psychiatric disability is predicated upon there being no improvement in his knee pain.
…
It is too early for this claim to be finalised from a psychiatric point of view.
…
I suggest that a copy of this report be forwarded to his treating General Practitioner to facilitate psychiatric treatment for Mr Wyatt. May I suggest a follow up report in a year's time after Mr Wyatt has undergone adequate psychiatric treatment and trialed at least one or two antidepressants in the dosages I have mentioned. At this point a final psychiatric report can be written.
11 The Arbitrator noted that Dr Proud had said the appellant currently had a 20% psychiatric disability, and had estimated his permanent psychiatric disability would be 15% if he had adequate treatment for his depression [38]. The Arbitrator also noted that the appellant was not at that time having treatment [38]. The Arbitrator then said:
The difficulty I have is, firstly, the practitioner provides an estimation of the future as a consequence of treatment. Secondly, he states it is too early for the claim to be finalised and suggests that after treatment and in a year's time, a final psychiatric report can be written.
The practitioner has attempted to estimate where the applicant will be in a year's time and after treatment.
I do not consider the level, percentage and permanency has been proved. … [39] - [41].
12 The Arbitrator decided that he had no unequivocal assessment [44], and concluded that:
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- Permanency and the percentage are not proved in relation to the psychiatric condition and as a consequence the application is dismissed [45].
The fresh evidence obtained from Dr Proud
13 On or about 12 April 2006, the appellant obtained a report dated 12 April 2006 from Dr Proud. In this report, Dr Proud said that the appellant had a current psychiatric disability of 15% arising from moderate and regular symptoms of major depression. He also had a permanent psychiatric disability of 15%, and his claim was 'capable of finalisation from a psychiatric perspective'.
The s 186 application
14 On or about 5 May 2006, the appellant made an application under s 186(2) of the Act (the s 186 application), seeking a reconsideration of Arbitrator Whitford-Harvey's earlier decision to dismiss the First Form 22 application. The appellant sought to rely on the fresh evidence in Dr Proud's report dated 12 April 2006.
15 Section 186 provides:
(1) In this section -
'new information' means information relevant to a decision that, although available to a party at the time the decision was made, was not available to the arbitrator and, in the opinion of the arbitrator, justifies reconsideration of the matter.
(2) If new information becomes available after an arbitrator makes a decision, the arbitrator may reconsider the decision and -
(a) vary or revoke the decision previously made; or
(b) make any further decision,
as the arbitrator considers appropriate having regard to the new information.
16 The s 186 application was heard by Arbitrator Whitford-Harvey. On 7 November 2006, he dismissed the application and on 27 November 2006, he published his reasons for that decision. His reasoning was as follows:
The applicant argues reconsideration and makes clear at point 6 of his submissions that new information in relation to reconsideration of the matter means information relevant to a decision that, although available to
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- a party at the time the decision was made, was not made available to the arbitrator and in the opinion of the arbitrator, justifies reconsideration of the matter.
My original determination was made on 20 January 2006. The applicant by their own submission, notes the new information is fresh evidence by way of report of April 2006. It is clearly evident that it is not information that was available at the time I made my original determination and therefore I am unable to reconsider the matter [11] - [12].
17 The appellant did not appeal against the dismissal of the s 186 application.
The proper construction of s 186 of the Act
18 Although the appellant did not appeal against the dismissal of the s 186 application, it is important to make some observations concerning the proper construction and application of s 186 in that the reasoning and conclusion of the Arbitrator in relation to that section were, with respect, plainly wrong.
19 The Arbitrator's construction of s 186 was identical to Commissioner Nisbet QC's construction of the provision in the earlier case of Sandford v W & R Porteous (Unreported, C11/2006, 30 May 2006).
20 In Sandford, the learned Commissioner reviewed the legislative precursors to s 186. After referring to the former s 84ZF(3) and (4) of the Act, he said:
Importantly, the former provision defined 'new information' as information that was not available to the review officer when the decision was made, whereas the current provision [that is, s 186] adds the important qualification that that new information must have been 'available' to a party at the time the decision was made [21].
- A little later, the learned Commissioner frankly admitted:
I appreciate that it is difficult to see the purpose behind this provision [that is, the 'important qualification' added by s 186] and, during the course of submissions the mischief to which this provision is directed was not immediately discernible. The best I could suggest to the parties at the time and still is that this provision appears to be addressing the prospect of concealment of an important fact or matter by one of the parties which had it been known to the arbitrator at the time his or her decision was made would have been of significant importance, for example, an almost identical claim against another employer some time previously [25].
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21 In s 186, the term 'new information' is defined for the purposes of the section. The phrase, 'although available to a party at the time the decision was made', does not exclude from the definition, information which is 'fresh' (in the sense of information which the party did not have, and could not have obtained with reasonable diligence, for use at the earlier hearing) as distinct from information which is 'new' (in the sense of information which the party had, or could have obtained with reasonable diligence, for use at the earlier hearing, but was not made available to the Arbitrator). The word, 'although', means 'even though'. The phrase, 'although available to a party at the time the decision was made', conveys a legislative intention that information will be 'new information', as defined, notwithstanding the fact that the relevant information was available to the party at the time of the earlier decision, but was not disclosed to the Arbitrator. The phrase in question operates by way of extension, and not by way of restriction. That is, the phrase makes plain that 'new information', as defined, comprises not only information which is 'fresh' (in the sense I have explained), but also information which is 'new' (in the sense I have explained).
22 Accordingly, a party may make an application, for the purposes of s 186(2) of the Act, based on information that was not 'available' to the party at the time the earlier decision was made. Also, a party may make such an application based on information that was 'available' to the party at the time the earlier decision was made. In each case, however, the information in question must not have been available to the Arbitrator when he or she made the earlier decision, and the Arbitrator hearing the s 186(2) application must be of the opinion that the relevant information justifies reconsideration of the matter.
23 The Arbitrator in the present case (and the learned Commissioner in Sandford) therefore misconstrued s 186.
The Second Form 22 application
24 On or about 5 May 2006, the appellant also filed a further Form 22 (the Second Form 22) pursuant to s 93D of the Act, seeking a determination that his 'degree of disability' was not less than 30%.
25 On this occasion, the appellant described his claimed disability as 'right and left knee injuries and depressive illness', and asserted that they arose in consequence of the injuries he sustained on 17 September 2003 in the course of his employment with the respondent.
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26 The Second Form 22, like the First Form 22, was referred by the Director Dispute Resolution to be dealt with under Part XI of the Act, and the second application was heard on the papers by Arbitrator Whitford-Harvey.
27 The respondent argued, relevantly, in its written submissions to the Arbitrator, that there was an issue estoppel which precluded the appellant from seeking a determination that his level of disability was not less than 30%. It also contended that the Second Form 22 application was an abuse of process.
28 The Arbitrator decided that the appellant was not estopped from 're-litigating the matter in relation to the alleged psychiatric symptoms', and that there was no abuse of process. The Arbitrator's reasoning was as follows:
In terms of the question of Issue Estoppel, this was considered by the High Court of Australia with regard to proceedings at WorkCover, the matter being Kuligowski v Metro Bus (2004) HCA 34. In the judgment reference was made to the speech of Lord Guest in Carl Ziess Stiftung v Rayner and Keeler Ltd (No. 2)(1967) 1 AC 853 at 935.It was identified that for the doctrine to apply to a second set of proceedings, the relevant requirements were
(1) That the same question has to be decided.
(2) That the judicial decision which is said to create the estoppel was final.
(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.
This matter may meet the requirements of (1) and (3). It does not meet the requirement of (2). The decision which is said to create estoppel was not final. The decision made in my previous determination and in relation to the psychiatric condition was 'permanency and percentage level have not been proved in relation to the psychiatric condition'. I then dismissed the application.
In Kuligowski v Metro Bus at 25 their Honours state in part:
A 'final' decision, then, is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final [14]. It must be final and conclusive on the merits: 'the cause of action must be extinguished by the decision which is said to create the estoppel' (underlining added)
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- In coming to my determination I considered the report of Dr Proud. I identified three problems with the report. My first issue being that the practitioner provided an estimation of the future as a consequence of treatment. My second difficulty being that the practitioner stated it was too early for the claim to be finalised and suggested that after treatment and in a year's time, a final psychiatric report could be written. My third difficulty was the practitioner's use of the word estimate. I considered the Shorter Oxford Dictionary and the Macquarie Dictionary and came to the conclusion I did not have an unequivocal assessment.
The applicant now argues the situation has changed and the condition is now permanent and an assessment of percentage can be provided. The applicant argues they now have a report from Dr Proud, where presumably he is in a position to now certify permanency and percentage. He appears to now be satisfied that a final psychiatric report can be written. This is not a tidying up of the evidence but a change in circumstance as argued by the applicant. That change being a settling of symptoms to a point where an assessment of permanency and percentage can be provided.
As a consequence the applicant is not estopped from re-litigating the alleged psychiatric component. My previous determination was not final.
The application in relation to abuse of process falls away. I find the applicant is not estopped from litigating the question in relation to the psychiatric condition. The psychiatric condition is subject to change and therefore the referred question is a proper question before me [13] - [19].
The appeal to Commissioner Nisbet QC
29 The respondent appealed against the Arbitrator's decision, pursuant to s 247 of the Act, in relation to the Second Form 22 application. The appeal was heard by Commissioner Nisbet QC, who granted leave to appeal, allowed the appeal, and quashed the Arbitrator's determination.
30 The learned Commissioner held:
In this case, in my opinion, precisely the same issue was sought to be litigated by the [appellant] in his second Form 22 application as he litigated and lost in his first Form 22 application [17].
31 His Honour then observed:
In conclusion, I note that in Kuligowski the High Court appeared to distance itself from the decision of the Full Court of the Supreme Court of Western Australia in McNair v Press Offshore Ltd (1997) 17 WAR 191 at 197 saying:
'In the leading Western Australian decision, which the majority of the Full Court applied, and which it was the purpose of this appeal to test, Owen J said that where 'a party has failed to prove a fact in
- workers compensation proceedings that party may be estopped in a common law action from asserting the existence of that fact'. With one exception, the authorities then cited do not support that proposition. The exception is Agri v DRG Australia Ltd, where Clarke JA rejected an argument that failure by the worker to establish that he had a disc lesion was insufficient to create an estoppel preventing him from later contending that he did. The reasoning is not clear, and it was not supported by McHugh JA, who found that in substance, there had been a positive finding that there was no disc lesion [18].'
32 According to the learned Commissioner, there was an issue estoppel. His Honour said:
It would hardly befit the objects of the Act to decide other than that the first determination was final and binding on the arbitrator in the second Form 22 application … [19].
The appeal to this court
33 The appellant has appealed to this court, pursuant to s 254 of the Act, against the learned Commissioner's decision. By s 254(1), a party to a proceeding before the Commissioner may, by leave of this court, appeal to this court from a decision of the Commissioner in the proceeding on a question of law.
34 On 14 May 2007, Pullin JA ordered that the appellant's application for leave to appeal be heard together with the appeal.
The grounds of appeal
35 The appellant's grounds of appeal are these:
1. The learned Commissioner erred in law in failing to conclude that the Arbitrator had not precisely and necessarily determined finally (or at all) what the Appellant's degree of psychiatric disability was, in the absence of which solemn finding no relevant issue estoppel could lie as a matter of law.
2. At Reasons [18] - [19], the learned Commissioner erred in law in effectively concluding that the relevant part of the decision of the High Court in Kuligowski (viz, that a failure to prove a fact does not amount to a positive finding of fact to the contrary, sufficient to ground an estoppel) was inapplicable to the Dispute Resolution Directorate ('DRD') because 'it would hardly befit the objects of the Act to decide' otherwise. Alternatively, the learned Commissioner failed to provide adequate reasons for this implied conclusion.
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- 3. The learned Commissioner erred in law in failing to conclude that a relevant change in circumstances (such as the appearance of 'fresh' evidence not then in existence, and by definition not capable of being in existence at the first hearing) precluded the operation of issue estoppel in this case either as a matter of decided law, or in the exercise of judicial discretion to exclude or limit the operation of the doctrine of issue estoppel in accordance with the justice of the case.
The merits of the appeal
36 The critical issue raised by the grounds of appeal is whether the learned Commissioner was correct in deciding that the appellant was precluded by the doctrine of issue estoppel from seeking a determination, in the context of the Second Form 22 application, in relation to his 'degree of disability' attributable to his psychiatric injury and, also, a determination that his overall 'degree of disability' (that is, his degree of disability attributable to his non-psychiatric injury, as found in the context of the First Form 22 application, and his degree of disability attributable to his psychiatric injury) was not less than 30%.
37 In Blair v Curran (1939) 62 CLR 464, Dixon J explained the doctrine of issue estoppel in these terms:
A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue-estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order (531 - 532).
38 More recently, in Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 [21], Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ approved Lord Guest's formulation, in Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853, of the requirements of the doctrine of issue estoppel. His Lordship said that, for the doctrine to apply in the second set of proceedings, the requirements were:
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- (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 (935).
39 A court, in deciding whether an issue estoppel exists, may examine the record of the first set of proceedings, including the reasons for decision, for the purpose of identifying the issues of fact and of law that were raised and determined in those proceedings. See Jackson v Goldsmith (1950) 81 CLR 446, 467 (Fullagar J); Rogers v The Queen (1994) 181 CLR 251, 263 (Brennan J).
40 I turn, now, to consider whether, in the context of the First Form 22 application, the Arbitrator decided the same question as the appellant sought to raise in the Second Form 22 application.
41 In Ramsay v Pigram (1968) 118 CLR 271, Barwick CJ noted, in relation to the identification of the relevant question which was decided in the first set of proceedings:
Long standing authorities, in my opinion, warrant the statement that, as a mechanism in the process of accumulating material for the determination of issues in a proceeding between parties, an estoppel is available to prevent the assertion in those proceedings of a matter of fact or of law in a sense contrary to that in which that precise matter has already been necessarily and directly decided by a competent tribunal in resolving rights or obligations between the same parties in the same respective interests or capacities, or between a privy of each, or between one of them and a privy of the other in each instance in the same interest or capacity. The issue thus determined, as distinct from the cause of action in relation to which it arose, must have been identical in each case (276).
- Those observations were approved in Kuligowski [40].
42 It is essential, in examining reasons for decision which are alleged to create an issue estoppel, to understand with precision what the judicial officer was required to determine. See Murphy v Abi-Saab (1995) 37 NSWLR 280, where Gleeson CJ (with whom Kirby P and Rolfe AJA agreed) said:
The difficulty is to distinguish between decisions of fact or law fundamental or cardinal to the judgment and other decisions. One thing, however, is clear. Only a decision about a matter which it was necessary to decide can create an issue estoppel. It is, therefore, essential to approach reasons for judgment which are said to create an estoppel with an accurate understanding of what the author of the reasons was required to decide (288).
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43 The question which is referred to the Director Dispute Resolution under s 93D(5) of the Act and, where necessary, to an arbitrator under Pt XI of the Act, is this:
What is the 'degree of disability' suffered by the relevant worker?
44 The Act requires that a determination be made as to the particular 'degree of disability', and not merely whether the 'degree of disability' is not less than the relevant level. See Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159, where Steytler P, Wheeler, Roberts-Smith, McLure and Pullin JJA observed, in relation to a Form 22 referral lodged by an injured worker on 14 December 1999 and in the context of the Act as it stood before the publication in the Government Gazette, later that day, of the 1999 amendments:
Leaving to one side, for the moment, what was said in Ivey and in McMullen, it seems to us that the questionwhich is referred to the Director under s 93D(5) and, where necessary, by the Director to the review officer under s 93D(10), is that of what is the degree of disability suffered by the worker. While s 93D(5) speaks of the question 'whether the degree of disability is not less than the relevant level', there will, in many cases, be only one relevant level in contention, as we have explained. The question, then, will be whether the degree of disability reaches that level. Where the ambit of the dispute ranges (as in this case) between somewhere less than 16 per cent (the insurer's nomination) and 30 per cent or more (the worker's nomination) there will be two relevant levels in contention, unless the worker has made it plain that he or she will elect not to rely upon the lower level. However, even then, only one relevant level can be determined (or agreed upon, if agreement is reached after consultation with the Director), being either of 16 per cent or more or 30 per cent or more. Consequently, the question which is referred by the Director for resolution is always the same, being that of what is the relevant level or, to put it differently, what is the degree of disability. When the operation of the Act is understood in that way, it is not surprising that the original Form 22 should have had the two boxes to which we have referred. In our opinion, where the amended Form 22 requires the worker to tick only one of the two boxes, that tick and the employer's nomination do no more than delineate the ambit of the dispute. The regulatory requirement that the worker is to tick only one box has no effect on the task which the Act requires, which is the determination of the degree of disability [38]. (emphasis added)
45 In the present case, an examination of the Arbitrator's reasons for decision with respect to the First Form 22 application reveals that he did not make a determination as to the particular 'degree of disability' suffered by the appellant by reason of his psychiatric injury. The Arbitrator's decision was limited to a finding as to the appellant's particular 'degree of
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- disability' with respect to his non-psychiatric injury. Accordingly, there was no finding as to his overall particular 'degree of disability'.
46 In Kuligowski, the High Court noted that in some cases it may not be possible for a court or tribunal to reach a conclusion either way in relation to a specific issue [60], and cited the following passage from the speech of Lord Brandon of Oakbrook in Resa Shipping Co SA v Edmunds [1985] 1 WLR 948:
[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden (955).
- The High Court then said that a failure to find a matter alleged does not establish the truth of the contrary of that which is alleged. Their Honours added:
There are many general statements about the operation of issue estoppel, approved in this Court, which require more than non-satisfaction to establish an estoppel in later proceedings [60].
48 I am therefore satisfied that the questions raised and decided in the second set of proceedings before the Arbitrator (namely, the extent of the appellant's particular 'degree of disability' attributable to his psychiatric injury and, therefore, in conjunction with the earlier finding as to his particular 'degree of disability' attributable to his non-psychiatric injury, his particular overall 'degree of disability') were not questions decided by the Arbitrator in the context of the First Form 22 application. The doctrine of issue estoppel did not preclude the Arbitrator from dealing with and deciding the issues raised in the Second Form 22 application. It follows, also, that the second set of proceedings were not an abuse of process.
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49 The appellant has established that the learned Commissioner made an error of law in deciding that 'precisely the same issue was sought to be litigated by [the appellant] in his second Form 22 application as he litigated and lost in his first Form 22 application' [17].
50 It is unnecessary to consider the other elements of the doctrine of issue estoppel, or the other matters raised in the appellant's grounds of appeal.
The Arbitrator's failure to carry out his statutory task in relation to the First Form 22 application
51 I should emphasise that the Arbitrator failed to carry out his statutory task in relation to the First Form 22 application. The question referred to the Arbitrator under Pt XI of the Act was: what is the 'degree of disability' suffered by the appellant? The Arbitrator was required to determine the appellant's particular overall 'degree of disability'; that is, his particular 'degree of disability' attributable to his non-psychiatric injury and his particular 'degree of disability' attributable to his psychiatric injury. The Arbitrator should have found, on the material before him in the First Form 22 application, that the appellant had established a particular 'degree of disability' attributable to his non-psychiatric injury of 22.05%, the appellant had not established any particular 'degree of disability' attributable to his psychiatric injury, and, as a result, his particular overall 'degree of disability' was 22.05%. The appellant had failed to discharge the burden of proof he carried in relation to his non-psychiatric injury, and, unless it was appropriate to adjourn the proceedings, the Arbitrator should have determined the appellant's particular overall 'degree of disability', on the material before him, and not dismissed the application. If the Arbitrator had determined, in the context of the First Form 22 application, that the appellant's particular overall 'degree of disability' was 22.05%, it would, of course, as I have explained in analysing s 186 of the Act, have been open to the appellant later to have made an application under s 186, in reliance on Dr Proud's report dated 12 April 2006, for a reconsideration and a variation or revocation of the earlier determination.
Conclusion
52 The learned Commissioner's decision in relation to the doctrine of issue estoppel was a decision 'on a question of law' within s 254(1) of the Act. The relevant decision did not relate to findings of fact or the assessment of evidence. It was confined to the identification of legal principles and the application, in a statutory framework, of those
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- principles to undisputed facts. The question of law is of some importance, both generally and as between the parties.
53 I would therefore grant leave to appeal, and allow the appeal.
7