Zeaiter v NSW Department of Education & Training - [2009] NSWWCCPD 103

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Zeaiter v NSW Department of Education & Training [2009] NSWWCCPD 103
APPELLANT:		Joseph Zeaiter
RESPONDENT:		NSW Department of Education & Training
INSURER:		Treasury Managed Fund (GIO General Ltd)
FILE NUMBER:		A1-8527/08
ARBITRATOR:	Ms A Simpson
DATE OF ARBITRATOR’S DECISION:		19 February 2009
DATE OF APPEAL DECISION:		24 August 2009
SUBJECT MATTER OF DECISION:		Consent award; issue estoppel; matters in dispute.
PRESIDENTIAL MEMBER:		Acting Deputy President Anthony Candy
HEARING:		9 July 2009
REPRESENTATION:		Appellant:	Sanford Legal
Respondent:		Leslie Hargrave Lawyers
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 19 February 2009 is confirmed. Each party is to pay his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

Mr Joseph Zeaiter (‘the worker’) had been employed as a teacher by the New South Wales Department of Education & Training (‘the employer’) intermittently and for separate periods over many years since the early 1980s. There were some years during which the worker was not employed or on leave without pay.
Relevantly to these proceedings he commenced teaching at Cabramatta High School in January 2005 and continued until April or May the following year when he resigned from his employment as a result of certain actions taken by a head teacher in respect of the worker and a meeting with the school Principal. There have been three sets of proceedings commenced in the Workers Compensation Commission (‘the Commission’) arising out of these events of which the current proceedings are the most recent. It is unclear that a claim for compensation was made by the worker before consulting solicitors. They wrote on 8 January 2007 to the employer’s workers compensation insurer which advised on 23 January 2007 that no claim had been lodged by the worker. On 15 March 2007 the solicitors wrote claiming lump sum compensation under sections 66 and 67 of the Workers Compensation Act 1987 (‘the 1987 Act’) in respect of a psychiatric/psychological injury suffered between 2005 and 18 April 2006. On 27 March 2007 the insurer wrote to the worker declining to commence payments of compensation for the following reason: “Injury notified after 2 months”. The worker was however invited to submit a formal claim for compensation. There is no evidence that this took place.
In an Application to Resolve a Dispute (‘Application’) 3712/07 registered in the Commission on 23 May 2007 the worker sought the lump sum compensation claimed in the letter of 15 March 2007. The worker relied on the opinion of a psychiatrist, Dr Younan, who had examined the worker at the request of his solicitors on 27 November 2006. The history obtained was that the worker was discriminated against, was given science as a subject to teach which was stressful and he was given bad classes. Dr Younan’s opinion was that the worker suffered from a Major Depressive Disorder as a result of his employment and had a Whole Person Impairment of 17%. In those proceedings the matter in dispute was stated to be the insurer’s failure to determine the claim and this was confirmed in the Reply lodged on 1 June 2007 by the insurer’s solicitors.
The worker was assessed by an Approved Medical Specialist (‘AMS’), Dr Julian Parmegiani, on 10 July 2007 who concluded that the worker’s psychiatric injury was “wholly attributable to non-work related factors, namely of constitutional nature”. A Medical Assessment Certificate (‘MAC’) issued accordingly on 20 July 2007. The worker then sought to appeal against that decision of the AMS but the Registrar’s delegate, on 17 October 2007, decided that no ground of appeal pursuant to section 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) had been made out. An Election to Discontinue the proceedings under Rule 15.7 of the Workers Compensation Commission Rules 2006 was then filed. Thus no Certificate of Determination was issued in those proceedings.
There were separate proceedings for compensation brought in the Commission, 4101/08, in respect of the worker’s entitlement to weekly compensation and treatment expenses under section 60 of the 1987 Act. In those proceedings, the Application registered on 30 May 2008 stated that once again, the claim was brought because of the insurer’s failure to determine the claim as well as there being an exchange of offers. It is clear that a claim for weekly compensation was made by the worker’s solicitors on 19 March 2008. It is not apparent that any response was made by the insurer to this letter nor is there any evidence of an exchange of offers being made. In the Reply filed, the matters in dispute were confirmed to be those stated in the Application.
At a conciliation/arbitration on 15 August 2008 agreement was reached that the employer would pay weekly compensation totalling $7,500 in respect of the period from 18 May 2006 to 15 August 2008. Thereafter there was an award in favour of the employer. There was also an award in favour of the employer for the worker’s section 60 expenses. A ‘Certificate of Determination-Consent Orders’ in those terms was made by the Arbitrator to whom the matter had been allocated. This is set out in full at [29] of these reasons.
The current proceedings were preceded by a further claim made by letter of 8 September 2008 in respect of compensation under sections 66 and 67 of the 1987 Act. The insurer responded by letter on 30 September 2008 disputing liability for the compensation claimed on a number of bases, namely:
·      that there was no injury;
·      that employment was not a substantial contributing factor to any injury (section 9A of the 1987 Act);
·      that section 11A precluded the recovery of compensation by the worker with particular reference to his promotion;
·      that no claim was made as required by section 65 of the 1998 Act;
·      that there was no whole person impairment;
·      that there was no pain and suffering, and
·      that the worker was not entitled to make a claim because of the binding effect of the MAC of Dr Parmegiani.
The letter goes on to give particulars of the matters relied on in disputing liability.
Accordingly, on 24 October 2008 the worker lodged with the Commission a further Application. In that application the date of injury was given as “2005-18/4/2006”. The date of notice of injury is given as “15/3/2007” and the date the compensation was claimed, “8 September 2008”. The injury was described as follows: “The applicant suffered psychiatric and psychological injuries as a result of the nature and conditions of his employment with Cabramatta High School between 2005 to 18/4/2006”. The compensation claimed was pursuant to sections 59, 60, 66 and 67 of the 1987 Act. A Reply was filed on behalf of the employer confirming that the matters in dispute were in accordance with the insurer’s letter previously referred to. The application was referred to a Commission Arbitrator and a teleconference was held on 28 November 2008. The matter was unable to be resolved and was accordingly set down for a conciliation/arbitration on 19 January 2009.
The Arbitrator entered an award for the respondent after finding that the worker had not established that he had suffered an injury arising out of or in the course of his employment.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 19 February 2009 records the Arbitrator’s orders as follows:
“1. That there be an award for the Respondent
2. That there is no order as to costs.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are:
· whether the Arbitrator erred in failing to find that the employer was estopped from denying injury by reason of a prior consent award, and
· whether the worker ought now be allowed to raise the question of estoppel having not done so at the arbitration.

ON THE PAPERS REVIEW

The parties agreed that the appeal may be decided solely on the basis of the documents filed in accordance with section 354(6) of the 1998 Act. Despite this agreement I took the view that the written submissions filed were inadequate and that the parties should be given a further opportunity to make submissions at an oral hearing which took place on 9 July 2009.

LEAVE

It is not disputed that the requirements of section 352 of the 1998 Act have been met. Accordingly leave to appeal is granted.

EVIDENCE

The Worker’s Evidence

Two statements of the worker are in evidence dated 16 May 2007 and 20 October 2008. They appear to be identical, even as to the stated age of the worker although the dates of making of the two statements are 17 months apart. No doubt the first statement was obtained for earlier proceedings and simply re-dated for these proceedings.
The worker said that he began employment with the employer as a teacher in 1981 and last worked on 18 April 2006. He had commenced teaching Mathematics and Science at Cabramatta High School in January 2005. At that school he had bad experiences, people were very cruel to him and he was discriminated against. He also complained that he was instructed to teach Science for which he was not trained. At the beginning of 2006 he was given “very bad classes … the worst kids in the school”. He said he was abused by the students and felt dejected. There was some dispute with the head teacher about the competence of the worker and he was taken to see the Principal who allegedly gave the worker a choice of agreeing that he was either medically unfit or incompetent. He was given a letter to sign after which he said he suffered a nervous breakdown. He resigned with the assurance from the Principal that he could work casually. This took place in May 2006. Since that time he had worked as a casual teacher but found he was unable to manage that.
He said that once everyone had found out about a book he had written his life became a nightmare, he felt punished for trying to help and was not invited to school social functions. He visited his doctor informing him of his psychological/psychiatric injuries and requested sick leave. He had two weeks off work in addition to the normal vacation which was, it appears at the end of first term. He said he was prescribed Prozac and referred to a psychiatrist whom he saw once. That psychiatrist reportedly advised the worker to go to church and pray.
The notes of a general practitioner, Dr H. Wilkinson, for the period from September 2005 to 4 July 2006 were in evidence. It is not clear whether Dr Wilkinson was the author of all of these notes or simply some of them. These notes are incompletely copied so far as the date of the entries are concerned and are a little unclear. The entries which are relevant are as follows:
“7/10/05Under stress requests stress leave – wants Valium script – declined teacher – advise to see counsellor. Advised to have blood tests.
?/2/06Develops headaches in sun – teacher needs job with indoor sports.
22/6/06Feeling depressed – counselling not suicidal – not working at present – referred to Dr (?)Sharah.
4/7/06Stress headaches.
4/7/06Stressed with work.”
No report from a treating psychiatrist is in evidence nor is there a report from Dr Wilkinson. There are however two reports from Dr Younan dated 30 November 2006 and 6 February 2008. The history given to Dr Younan on 27 November 2006 was in accordance with the worker’s statement already referred to. The worker did, however, give Dr Younan a very comprehensive history of his teaching work. He had had some difficulties at a private school where he began teaching Maths and Science in 1981. He also had difficulties at his next school which was Parramatta High School. At the next school, Muirfield High School, North Rocks, the worker had problems in the second year there with the head teacher and transferred to Greystanes High School where he remained for half a year before resigning in order to look after his brother who was ill and died in 1988. He said he then worked as a casual teacher for a while before becoming permanent at Auburn Girls High School. At that school he said the girls were very hard to handle and complained about his behaviour. He said he could not handle the stress and left. He then began a pizza delivery business which lasted for six years and did casual teaching until he was appointed to Cabramatta High School.
The worker told Dr Younan that he had made a claim for work-related stress while working at Auburn Girls High School and that matter was settled. Dr Younan obtained a report of certain physical symptoms which were chest tightness, palpitations, increased sweating and a feeling of body shaking. The worker also told the doctor that he felt irritable and edgy. Almost every night his sleep was disturbed by initial insomnia and then waking in a panic in the middle of the night. Dr Younan however noted the worker did not suffer from any delusions or perception disorders. The diagnosis which Dr Younan reached on that occasion was Major Depressive Disorder manifested by depressed mood most of the time, loss of interest and motivation, sleep disturbance, fatigue and panic attacks, mainly nocturnal. The stressors which Dr Younan identified from his interview with the worker were:
·      teaching a subject [Science] in which he did not feel competent;
·      being assigned classes with “the worst kids in the school” and facing the abuse of these students;
·      a perception that these were deliberately given to him as a result of his complaint;
·      a failure of authorities to give him needed support in relation to disciplining students and when the head teacher had requested an improvement from him;
·      isolating him socially by excluding him from school social functions and from celebrating his birthday as was the custom of other teachers despite his financial contribution to the birthdays of others;
·      accusing him of not doing his duties and humiliating him by asking him to choose between two difficult choices, and
·      after being initially told that after resignation he would be able to work as a casual teacher, that promise was not fulfilled and the Principal had written that the worker was not suitable for work as a teacher.
Dr Younan noted that the worker had encountered difficulties in almost all of the schools he worked at. Nonetheless, he did not think that that suggested incompetence on the worker’s part. He noted the worker’s basic personality as related to him, the fact that he had spent a year at Muirfield High School without problem and, third, that if he had been assessed as being somewhat incompetent, he should not have been given classes with difficult students.
Dr Younan thought the worker was unfit to work as a teacher and would remain so for the foreseeable future. He noted the worker had not had adequate treatment for his depression and could not say that the condition had stabilised. Regardless of any treatment the worker received he thought he would remain with the same condition and assessed impairment.
Dr Younan again saw the worker on 4 February 2008. He had been forwarded a report from the employer’s psychiatrist, Dr Potter, dated 22 May 2007 and the MAC of the AMS, the Appeal against the Decision of the AMS and Notice of Opposition to Appeal against such decision. The worker expressed anger towards the AMS’s interview and stated that that doctor had misrepresented what he had been told. Dr Younan’s diagnosis on this occasion was Adjustment Disorder with Depressed and Anxious Mood. He disagreed with the diagnosis reached by the AMS. Contrary to what had been found by the AMS, Dr Younan thought the worker did not suffer from delusions, although with his unusual ideas others might feel uncomfortable and tend to ignore or isolate him.
Also in evidence, although adverse to the worker’s case, is the MAC dated 20 July 2007. The history given to the AMS was substantially in accordance with the worker’s statement, however, he did also tell the AMS that he believed his Principal was a witch and the ideas contained in the manuscript of a book he had written and which he’d shown her had undermined her power. He believed that the Principal had cast a spell on him and was reluctant to take counter-measures in case he also turned into a witch.
At the beginning of 2006 the worker had been told by the head teacher to improve his skills by preparing a lesson plan and notes. This the worker described as a “set up”. He was asked to sign a form by the head teacher and the worker had replied in rather crude terms. The Principal then called him in for a meeting and told him he was either incompetent or unfit for duty and asked him to resign. This he did.
The worker’s psychological problems were increased after he left work in April 2006 and he had unsuccessfully applied for casual teaching positions. The worker continued to believe that he was under the spell of the Principal. The worker told the AMS that he had been referred to a psychiatrist, Dr Baker, who had prescribed an antidepressant and an antipsychotic. The worker said he continued taking those drugs and saw Dr Baker at fortnightly intervals. The AMS was of opinion that the worker had developed a complex delusional system involving witchcraft and persecution by the school Principal. He thought that the worker’s occupational problems were most likely as a result of his psychiatric illness rather than the cause. The worker’s anxiety was secondary to a psychotic illness which was most likely the early stages of schizophrenia. The AMS did however think that the worker’s mental state could improve significantly after an increase in antipsychotic medication.
The AMS commented on Dr Younan’s views expressed in his report of 30 December 2006 and considered that the disclosure by the worker of delusional ideation invalidated the prior diagnosis of Major Depressive Disorder. An examination of the reasons why the worker had become depressed indicated that he had lost the capacity to process information rationally.
The worker has also attached the two reports of Dr Potter, a psychiatrist retained on behalf of the employer. These reports are dated 22 May 2007 and 7 August 2008. When seen on 16 May 2007 the worker told Dr Potter that he was trying to work as a casual teacher when he could. The history again was in accordance with the worker’s statement, although the worker added that he thought the suggestions made to him about improving his performance would have been more appropriately made to an inexperienced and more junior teacher. The worker was shown by the Principal how she taught pupils and he then went through her papers to prove that she did not in fact teach in that way. After showing his book to the Principal, she had used his ideas and there was a conspiracy to get him out of the school. He felt stressed and needed leave without pay which was denied him. He offered to work two to three days a week and the Principal responded by saying that he could resign. He was initially denied any casual teaching. However, after he said “months and months” of letters to the employer, he obtained approval for casual work. This approval had been renewed until July 2007 and the worker intended to re-apply at that time. He said he was seeing Dr Baker monthly but did not see him the preceding week because he had been ill. He was only able to work one or two days a week because of fatigue. Dr Potter found it impossible to give a clear diagnosis as the worker’s past history was unreliable, being unsupported by notes from Dr Wilkinson and significantly different from the history given to Dr Younan. He did not think that the worker’s history and presentation attracted any psychiatric diagnosis and he thought there was no psychological reason why the worker could not work.

Dr Potter saw the worker again on 4 August 2008. He was seeing his general practitioner when he needed to for prescriptions and he continued to see Dr Baker, monthly. Dr Potter obtained a history that the worker had not done any teaching or other work since he had previously seen him. Dr Potter, after considering the various diagnoses reached by other doctors and the worker’s history and presentation to him, concluded that the diagnosis was Borderline Personality Functioning. Dr Potter concluded the worker could be considered permanently impaired but his disorder was constitutional.
The worker also relies on a Certificate of Determination in relation to matter No. 4101/08 dated 18 August 2008. The relevant part of this is as follows:
“In this matter a conciliation conference was held where the parties were assisted by me, acting as an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with rule 15.9(1) of the Workers Compensation Commission Rules 2006, the determination of the Commission in this matter is, relevantly, as follows:
1. That the Respondent pay the Applicant weekly compensation of $67.00 for a closed period from 18/5/06 to 15/8/08 agree to total the sum of $7,500, and thereafter an award for the Respondent in respect of the Applicant’s claim for weekly compensation.
2. Award for the Respondent in respect of the Applicant’s claim for expenses pursuant to s60 of the Workers Compensation Act 1987.”

Employer’s Evidence

The employer attached to its Reply a bundle of documents which are referred to as “Employment Records”. This bundle is 3½ cm thick and it is difficult to see the relevance of most of the material or why an attempt was not made to reduce the number of documents placed before the Commission. It appears however that the worker made application on 9 December 2004 for employment as a mathematics teacher, although he had a Bachelor of Science degree from the University of Sydney in 1978. His Teacher’s College qualification however was, he said, in “double maths”.
A Memorandum of 28 July 1995 recites that the worker had spent extensive periods away from teaching in 1994 because of a workers compensation claim and he had proceeded on leave without pay for the whole of 1995. Accordingly, his application for permanent appointment was declined. The worker had unsuccessfully sought leave without pay for three years from 18 December 1998 so that he was then obliged to resign. The worker had earlier been granted leave without pay for the whole of 1997 and 1998 but was given permission to undertake relief duty from 14 July 1997 onwards.

SUBMISIONS BEFORE THE ARBITRATOR

It is unnecessary to deal with the submissions made to the Arbitrator at length. Both parties addressed on the issue whether the worker’s psychological condition was work related, but the employer also addressed on an estoppel binding the worker by reason of his not proceeding with the appeal against the MAC of 20 July 2007. No submissions were made as to the employer being estopped by reason of the consent award in matter 4101/08 from disputing that the worker had suffered an injury.

SUBMISSIONS ON APPEAL

The Worker’s Submissions:

So far as the failure to raise the claimed estoppel at the hearing before the Arbitrator, it was submitted that it may have been raised in the conciliation phase and not recorded. The fact that a copy of the consent award had been attached to the application was, it was said, some indication of reliance being placed on it. A distinction was drawn between the authorities relevant to raising new points on appeal elsewhere and the principles applicable to proceedings in the Commission. The employer was not, it was said, prejudiced by the failure to rely on the estoppel at the arbitration because no other preparation would have been required, or any evidence possibly given relevant to that estoppel.
The wide nature of a review pursuant to section 352 of the 1998 Act, as explained by the Court of Appeal in State Transit Authority of NSW v Chemler [2007] NSWCA 249; (2007) 5DDCR 287 (‘Chemler’) and his Honour Judge Keating in Sapina v Coles Myer Limited (No.2) [2009] NSWWCCPD 56 was emphasised. Although I was referred to the decision of his Honour, the report of the Court of Appeal in that case, Sapina v Coles Myer Limited [2009] NSWCA 71 (‘Sapina’), also appears relevant.
The failure to rely on estoppel before the Arbitrator might, it was said, have certain consequences so far as costs were concerned but not so as to prevent it being raised in this appeal.
So far as the claimed estoppel was concerned, apart from W E Bromley Pty Ltd v Coggins [2006] NSWWCC PD 128 (‘Coggins’) and Rail Services Australia v Dimovski [2004] NSWCA 267 (‘Dimovski’), reliance was placed on Seaib v Hays Personnel Services (Aust) Pty Ltd [2008] NSWWCCPD 36 (‘Seaib’), a decision of Snell ADP in which he summarised, at [77], a number of decisions relevant to estoppel. Among the cases cited was a decision of Neilson CCJ in Anderson v Charles Sturt University (2002) NSWCCR 407 (‘Anderson’) in which he held that a consent award did not give rise to an estoppel in the Compensation Court. It was submitted that a distinction should be drawn between res judicata estoppel and issue estoppel and his Honour was referring only to issue estoppel rather than res judicata estoppel. The latter was said to form the basis of the claimed estoppel in this case. Inherent in the consent award, it is said, was an admission of injury.

The Employer’s Submissions:

Although the written submissions raise the argument that the estoppel was not raised in the proceedings before the Arbitrator, no prejudice to the employer was said to flow from the failure to do so if the worker were allowed to raise the issue at this stage.
On the question of estoppel itself, Anderson was relied on as well as a decision by the Court of Appeal on section 151H of the 1987 Act and section 314 of the 1998 Act. This decision was referred to as either “Tan” or “Henderson” but it appears to be J C Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of New South Wales [2008] NSWCA 43 (‘JC Equipment’). That decision concerned the acceptance by the employer that there was more than 15% whole person impairment in a claim made under section 66 and the subsequent dispute in relation to proceedings at common law that the employer had accepted that the degree of permanent impairment was at least 15%. Reliance was also placed on the decision of Roche DP in Rinker Group Limited v Mackell [2008] NSWWCCPD 100 (‘Rinker’) and the adverse effect on the Commission’s achieving speedy and efficient resolution of disputes if an estoppel were held to arise from such compromise agreements without a decision on the merits.

DISCUSSION AND FINDINGS

Should the worker be permitted to raise estoppel in this appeal?

There is longstanding authority on this point. In Suttor v Gundowda Pty Ltd [1950] HCA 35; (1950) 81 CLR 418 the High Court said the following at [9]:
“The circumstances in which an appellate court will entertain a point not raised in the court below are well established. Where a point is not taken in a court below and evidence could have been given there which by any possibility could have prevented the point from succeeding, it cannot be taken afterwards. In Connecticut Fire Insurance Co. v Kavanah (1892) AC 473, Lord Watson, delivering the judgment of the Privy Council, said, ‘When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice, to entertain the plea. The expediency of adopting that course may be doubted, when the plea cannot be disposed of without deciding nice questions of fact, in considering which the court of ultimate review is placed at a much less advantageous position than the courts below.’ (1892) AC, at p480.”
In Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 Gleeson CJ, McHugh and Gummow JJ said the following at [51]:
“It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in the litigant than to have a verdict taken away on a point that was not taken at the trial and could or might have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if that will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference in their personal and business affairs.”
In relation to the raising of a new argument on appeal Deputy President Roche in Norambuena v Transfield Services (Australia) Pty Ltd [2009] NSWWCCPD 52 said the following at [63]:
“The correct principle is that, in general, a point cannot be raised for the first time on appeal when it could have been met by calling evidence below (Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1 at 7: Park v Brothers [2005] HCA 73, (2005) 222 ALR 421 at 435; John Orford v Qi Ying He [2002] NSWCA 152). What is required is a determination of whether a party suffers any prejudice as a result of the opposing party presenting a different argument on appeal to the argument presented at arbitration. Normally, if the new or different point sought to be raised on appeal is restricted to a legal point that does not require the calling of additional evidence there will be no prejudice to the other party and, subject to compliance with the rules of procedural fairness, the argument will be allowed. That is especially so in the Commission, which is bound to act according to equity, good conscience and the substantial merits of the case without regard to technicalities (section 354(3) of the 1998 Act).
In view of the above statements of principle, I consider that the worker ought be allowed to raise the question of estoppel on this appeal since it is purely a question of law not requiring any evidence to be called nor any factual dispute to be resolved. What was said by Roche DP in Rinker does however give me some cause for hesitation. In that case at [130] he said the following:
“A further point to note is that it is not essential to formally plead estoppel in order to rely on it (Ferreira v Zebra Stoneworks Pty Ltd [2002] NSWCA 405 at [56]). That is especially so in the Commission, which is required to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. The ultimate question is whether reliance on estoppel should be precluded by consideration of procedural unfairness. A party seeking to rely on estoppel must properly prove the essential facts that establish it and must give reasonable notice of his or her intention to rely on it.”
In this matter the only fact proved by the worker is that there was a consent award in relation to weekly payments made on 18 August 2008. It is not clear that apart from attaching a copy of that consent award to the Application that the worker indicated his intention to rely on that as founding an estoppel as to injury. However, in conducting the review of the Arbitrator’s decision in the manner indicated by the Court of Appeal in Sapina I have had, with the consent of the parties, access to the prior files and am satisfied that the consent award arises out of the same incidents in the course of the worker’s employment as are relied on in these proceedings.
In Sapina, Allsop P and Hoeben J said the following at [57]:
“The notion of ‘review of a decision’ has been clearly held in the context of the former legislation and the WIM Act to be wider than an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, “to decide whether the original decision is wrong [that is to] decide what is the true and correct view.” This requires the Presidential member to decide for himself or herself these matters. That does not mean that there must be a de novo hearing in each case. Cases such as Watson, Boston Clothing, Litynski and AGL v Samuels made plain that this was not so under s 36 and the terms of ss 3, 352(7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352(7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.”
On the appeal, notice has been given of the intention to rely on the doctrine of estoppel and submissions made in relation to this. I consider that in conformity with the principles expressed in Sapina I ought allow the question of estoppel to be raised and ought determine whether there is in fact an estoppel which prevents the employer from denying that injury was received by the worker in the circumstances claimed. I accept, despite what was put in oral submissions to me, that the Arbitrator was not asked to consider this issue and therefore no question of the Arbitrator being in error arises.

Is the employer estopped from denying that the worker suffered injury by reason of the consent award of 18 August 2008?

Snell ADP in Seaib gave a helpful summary of the principles to be extracted from the authorities on estoppel as a result of consent awards. That summary is as follows:
“77. Without purporting to be exhaustive, I would identify the following principles from the authorities discussed above, in respect of the legal consequences of prior settlements effected by consent award;
(i)A consent award can create res judicata estoppels, and will also involve admissions of fact inherent to the award, for example the occurrence of injury, or the existence of economic incapacity resulting from injury, at a certain point of time (Dimovski).
(ii)When an issue is the subject of res judicata estoppel, it is not justiciable in a further action; it is not open to consideration de novo (Almario).
(iii)A res judicata estoppel, created by a consent award for an employer, on a weekly claim, or claim for section 60 expenses, operates up to the date it is made. It does not eliminate future rights (Almario, Kaibou, Coggins).
(iv)A consent award does not oblige the Commission, in subsequent proceedings, to take the factual position described in the consent award as a starting point in the fact finding process. The Commission should determine the facts at the date of further hearing, ‘without legal constraints flowing from the earlier award’ (Dimovski, De Witte, Kaibou).
(v)When engaging in this fresh fact finding process, it is appropriate to have regard to admissions flowing from the earlier consent award, and the presumption of continuance. However, such matters are only part of the evidence, to be considered with other evidence, lay and medical (Dimovski, Coggins).
(vi)A consent award does not create an issue estoppel (Anderson).
(vii)Where a worker executes Admissions and Agreed Facts as part of a settlement, these speak at the time that they were made. They are evidentiary of the facts stated, but not conclusive (Almario).
(viii)It is necessary to analyse and interpret admissions and agreed facts with care, in deciding what evidentiary force they have (Smylie).
(ix)Section 60 is an indemnity provision (New South Wales Sugar Milling Co-op Ltd v Manning (1998) 44 NSWLR 442). Admissions that a worker has no entitlement to such expenses ‘thereafter’, or ‘over and above’ an agreed sum, should be read in this light (Smylie).
(x)Agreed Facts which purport to impose a blanket bar upon the recovery of further compensation, for example a worker ‘is not entitled to any further weekly payment or compensation’, or ‘has no entitlement to compensation against the Respondent’, must be read subject to section 234 of the 1998 Act, which prevents contracting out of the 1987 and 1998 Acts.
(xi)The parties cannot use a series of consent awards to achieve de facto commutation, without appropriate approvals (Nelson v Flood & Co Ltd [1934] 8 WCR 227, Almario).”
In relation to this summary, Roche DP in Rinker said the following at [112]:
“Whilst I am in general agreement with the above summary, the question of whether a consent award/order can give rise to an issue estoppel (point (vi) above) has been the subject of several persuasive authorities discussed below. Those authorities suggest that, in certain circumstances, issue estoppels can arise from consent awards/orders, though the nature and extent of such an estoppel would depend on the facts and circumstances of each case.” (Emphasis Added.)
The other authorities to which he referred included Dimovski and O’Donel v Commissioner for Road Transport [1938] HCA 15; (1938) 59 CLR 744. In Dimovski there had been a consent award in October 1996 against an earlier employer for 25% loss of use of the worker’s left leg. A further injury was suffered in 1998 and he ceased work. The Compensation Court assessed the loss of use of the worker’s left leg at 25% and thus made no further award in respect of that. However, awards were made in respect of impairment of the back and loss of use of the right leg as well as a sum for pain and suffering under section 67 of the 1987 Act. The second employer argued that the Compensation Court had failed to give effect the estoppel created by the consent award. It was submitted that if the further injuries caused other than temporary aggravation of the worker’s condition they must have increased the impairment of the left leg. The judge did not find that and it was submitted by the second employer that she had disregarded the estoppel. That, however, was rejected by the Court of Appeal relying on the decision of the High Court in O’Donel. Handley JA at [9] said this: “A consent judgment can create res judicata estoppels: Spencer Bower, Turner & Handley ‘Res Judicata’ 1996 pp 21-2”. Hodgson JA said this in relation to the estoppel point at [57]:
“The inconsistency point was supported by a submission concerning issue estoppel. However, although an issue estoppel binds the parties as to the issues actually determined, they are not bound in relation to any different issue, not even when the combination of the original issue and extremely strong evidence would support a finding on the second issue: see O’Donel v Commissioner for Road Transport and Tramways (NSW) [1938] HCA 15; (1938) 59 CLR 744 at 763.”
The appeal in Dimovski was not determined on the estoppel point but was upheld on the basis that the trial judge ought to have considered the claim for apportionment or contribution as sought by the appellant from the earlier employer.

In O’Donel the worker was a tram conductor who said he was struck across the face by a palm leaf and his right eye was injured. His employer sought to dispute, in workers compensation proceedings, that the subsequent blindness in his eye was caused by that injury and the worker contended that the employer was estopped from raising that defence because the question had been determined adversely to the employer in prior litigation. That litigation had been a claim in the Supreme Court for salary under the Transport Act 1930 up to the date of his retirement. The worker was entitled to his normal salary during periods of incapacity which resulted from personal injury which arose out of and in the course of his employment. There was a question as to how much he was entitled to be paid in respect of the period claimed. A sum of money was paid into court representing difference between the wages which had been paid and the rate claimed by the worker. Latham CJ at 757 said the following:
“It is true that the commissioner did not in that action contest the allegation that the then incapacity of the appellant (the then plaintiff) was caused by an injury arising out of and in the course of his employment. But an estoppel is created ‘where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed’ (Hoystead’s Case [(1926) AC at p166; 37 CLR at p299]). Where a defendant could have raised a defence in an action, but, for whatever reason, elected not to raise it and the decision goes against him, he is precluded from raising that defence in subsequent litigation between the same parties (Humphries and Humphries [(1910) 2 KB 531]; Cooke v Rickman [(1911) 2 KB 1125]).”
His Honour went on to hold that it had been conclusively determined that total blindness on or before the date of the worker’s retirement was an incapacity due to personal injury arising out of and in the course of employment. However, there was no estoppel in respect of the cause of blindness after that date.
In the same case Evatt J said at 763:
“The argument [by the worker] involves and is based upon the fallacy that, where an issue between A and B relates to a state of things which is capable of subsequent alteration, the conclusive determination in A’s favour of that state of things as at one day plus conclusive proof that up to a later day there has been no alteration of such state of things establishes in A’s favour as against B an estoppel as to the state of things existing at the later day … This method though logically sound, is not permitted by law … the unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by a combination of the former issue with additional evidence, no matter how strong such evidence may be.”
Handley JA in Dimovski cited the above passage of Evatt J’s reasons at [12].
In Anderson, Neilson CCJ held that a consent award did not create an estoppel preventing the court from determining a case based on another claim on its true merits and justice. After his Honour had made an award for the employer in subsequent proceedings the worker’s counsel then sought to raise the question of estoppel which was later specified to be either promissory estoppel, estoppel by conduct or estoppel by convention. In the course of his judgment his Honour said this at [27] and [28]:
“27.I have earlier mentioned my view that it is unconscionable for a moving party who in earlier proceedings obtains a compromised settlement to maintain that the opposite party is now estopped from alleging that there is any true dispute…
28.Furthermore, I still have difficulty in seeing how when a party has reached a compromised settlement, an estoppel rises which prevents the Court from determining a case on its true merits and justice as the Court is required to determine. There are some dicta in this regard.”
His Honour then referred to the decision of the Court of Appeal in Ashenden v Stewarts & Lloyds (Australia) Pty Ltd [1972] 2 NSWLR 484 at 490 (‘Ashenden’) in which Jacobs JA said:
“Judge Ferrari reached the conclusion, with which I respectfully agree, that the making of an agreement between the parties does not take away or diminish the jurisdiction of the Court.”
Neilson JA went on to say the following at [30]:
“Parties can ask the court to enter up an award in accordance with their agreement. The Court, provided jurisdiction exists, can enter up that award. However, even though formed in the terms of a Court award, it is still in effect an agreement between the parties. It does not create any issue estoppel. Mere payment of compensation cannot amount to an estoppel but at most, if anything, an admission. Such was the decision of the Court of Appeal in APD Snack Foods Pty Ltd v Vuic [1984] 58 WCR (NSW) 62, a decision of Hutley AP, Glass and Mahoney JJA.”
Ashenden, which is referred to by Neilson CCJ in Anderson, was a case in which a judge of the Commission had refused to enter an award by consent in relation to a worker’s entitlement to compensation. The appeal was by way of stated case and five questions were submitted for the opinion of the Court of Appeal. The question on which the appeal was determined was whether the judge had erred in not making an award in the terms agreed by the parties. Jacobs JA was in the minority in saying that he did not think the judge had erred while Taylor AJA and Hardie AJA were of a different view with the result that the appeal was allowed. The majority did however criticise the inclusion of the expression “without admission of liability” in the terms of settlement.
In the recent case of Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (‘Habib’), McColl JA, in giving reasons for judgment with which Giles and Campbell JJA agreed, conducted a broad review of the various principles of estoppel and like doctrines. Her consideration of these matters begins at [69]. At [71] she cited the passage from Dow Jones v Gutnick [2002] HCA 56; (2002) 210 CLR 575. The passage from the reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ is as follows:
“Clearly the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata [Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446], issue estoppel [Blair v Curran [1939] HCA 23; (1939) 62 CLR 464], and what has come to be known as Anshun estoppel [Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589], all find their roots in that policy. Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits [… in relation to defamation, see also Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 at 100-102; Australian Broadcasting Corporation v Waterhouse (1991) 25 NSWLR 519 at 537; Meckiff v Simpson [1968] VR 62 at 65 and [1968] VR 69; Thomson v Lambert [1938] 2 DLR 545] or, after judgment, by the application of the equally well-established principles about preclusion, including principles of Anshun estoppel.”
Her Honour went on to say:
“72.Res judicata ‘is a broad rule of public policy based on the principles expressed in the maxims “interest reipublicae ut sit finis litium” and “nemo debet bis vexari pro eadem causa” ’: Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 (at 466) per Fullagar J. In Rogers v R [1994] HCA 42; (1994) 181 CLR 251 (at 273) Deane and Gaudron JJ described the first of the Latin maxims to which Fullagar J referred as expressing ‘The need, based on public policy, for judicial determinations to be final, binding and conclusive [while] [t]he second looks at the position of the individual and reflects the injustice that would occur if he or she were required to litigate afresh matters which have already been determined by the courts.’ They added that there was a related principle, ‘likewise fundamental, … embodied in the Latin maxim res judicata pro veritate accipitur [which] gives expression to … the need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct.’ They described the principle as ‘essential for the maintenance of public respect and confidence in the administration of justice.’
73.The doctrine of res judicata properly so-called (the first principle referred to in Dow Jones) applies where the plaintiff establishes his cause of action so that, upon judgment, the cause of action and any matters which were necessarily established as its legal foundation or as justification for its conclusion, or were legally indispensable to the conclusion merge in the judgment, and no longer have an independent existence and cannot be re-litigated in subsequent proceedings between the parties of [sic] their privies: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 (at 531-532) per Dixon J; Anshun (at 597) per Gibbs CJ, Mason and Aickin JJ; Chamberlain v Deputy Commissioner of Taxation (ACT) [1988] HCA 21; (1988) 164 CLR 502 (at 508) per Deane, Toohey and Gaudron JJ; James Hardie and Co v Seltsam Pty Ltd [1998] HCA 78; 196 CLR 53 (at [40]) per Gaudron and Gummow JJ.”
In relation to the orders made by consent in Habib, her Honour said the following at [186]:
“Orders made by consent may create an estoppel as between the parties, (and, no doubt may be considered for the purpose of determining whether subsequent proceedings would lead to conflicting judgments), however they do so ‘only as to those matters which are necessarily decided’, to ascertain which ‘the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to’: Isaacs v Ocean Accident and Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 (at 75), per Street CJ and Roper CJ in Eq ; see generally the helpful discussion of the issue by Barrett J in Land Enviro Corp Pty Ltd v H T T Huntley Heritage Pty Ltd [2008] NSWSC 185; (2008) 72 NSWLR 160 (at [63]-[65]); Abigroup Contractors Pty Ltd (at [146]).”
In Land Enviro Corp Pty Ltd v H T T Huntley Heritage Pty Ltd [2008] NSWSC 185; 72 NSWLR 160, Barrett J cited the following authorities in relation to the capacity of consent orders to raise an estoppel:
“63.It is well-established that orders made by consent may create an estoppel and that, in this respect, an order of dismissal is no different from any other order. In Re South American & Mexican Co; Ex Parte Bank of England [1895] 1 CH 37 at 45, Vaughan Williams J said:
‘It has always been the law that a judgment by consent or by default raises an estoppel just in the same way as a judgment after the Court has exercised a judicial discretion in the matter … if [the parties] agree upon a result, or upon a verdict, or upon judgment, or upon a verdict and judgment, as the case may be, an estoppel is raised as to all the matters in respect of which an estoppel would have been raised by judgment if the case had been fought out to the bitter end.’
64.In Isaacs v Ocean Accident & Guarantee Corporation Ltd (1957) 58 SR (NSW) 69 at 75, Street J and Roper CJ in Eq. said:
‘It is clear that the mere fact that the judgment is by consent does not detract from its conclusive effect upon the issues determined by it: Re South American and Mexican Co; Ex Parte Bank of England. But a judgment operates by way of estoppel only as to those matters which are necessarily decided by it (Cf Blair v Curran; Jackson v Goldsmith.) “Though consent judgments and orders are undoubtedly in every case decisions in the sense of the actual mandatory or prohibitive parts of the judgment or order are conclusively binding upon … the parties … it may often be a matter of legitimate doubt and debate as to what, if any, particular questions or issues of right, title, or liability were, expressly or impliedly, the subject of the consent, and of the decision. For this purpose, as for all other purposes connected with the ascertainment of the subject-matter of a decision, the court will closely examine all such evidence, if any, as is available and admissible, and, by the aid of such materials, will ascertain whether any and what adjudication of matters in dispute was expressed, or necessarily involved, in the actual decision assented to.” (Spencer Bower on Res Judicata, p24, para 34). Again, at p114, para 174, the learned author says: “In the case of judgments and orders by consent … it is absolutely essential to refer to the pleadings or affidavits of the parties, if the judgment or order is in a naked and general form, in order to ascertain what, if any, decision of particular questions or issues was impliedly consented or submitted to by the party against whom such consent … judgment or order was made”.’”
In Port of Melbourne Authority v Anshun Pty Ltd [1982] HCA 45; (1981) 147 CLR 589 (‘Anshun’) the High Court held that a tortfeasor who had not, in respect of another tortfeasor, raised a contractual indemnity in proceedings brought against it and that joint tortfeasor, could not do so in separate proceedings after judgment had been given in the first action. Gibbs CJ, Mason and Aickin JJ said the following at [36]-[40]:
“36. In these cases in applying the Henderson v Henderson principle to a plaintiff said to be estopped from bringing a new action by reason of the dismissal of an earlier action, Somervell LJ and Lord Wilberforce insisted that the issue in question was so clearly part of the subject matter of the initial litigation and so clearly could have been raised that it would be an abuse of process to allow a new proceeding. Even then the abuse of process test is not one of great utility. And its utility is no more evident when it is applied to a plaintiff’s new proceeding which is said to be estopped because the plaintiff omitted to plead the defence in an earlier action.
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. In this respect the discussion in Brewer v Brewer (1953) 88 CLR 1 is illuminating. …
40.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 course of action in a second proceeding. By ‘conflicting’ judgments we include judgments which are contradictory, although they may not be pronounced in the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect to the same transaction.”(Emphasis added.)
I turn now to the facts of the case under appeal in the light of the arguments presented and the applicable law. I am required to refer to the file in matter 4101/08 in order to ascertain whether an estoppel is established and, if so, the extent of that estoppel. As I have earlier said, the Application was filed because of the employer’s alleged failure to determine the claim made. The relevant claim was made by letter of 19 March 2008. The date of notice of injury and date of compensation claim are said to be 15 March 2007 which was the date of the workers solicitor’s letter making a claim for lump sum compensation. The insurer had written to the worker’s solicitors on 23 January 2007 in response to a letter of 8 January 2007, which is not in evidence, advising that there were no claims lodged with the insurer in accordance with the information provided. On 27 March 2007 the insurer again wrote acknowledging the initial notification of injury and declined to commence payments of weekly and other compensation because the injury had been notified after two months. As I have earlier indicated, the worker was invited to submit a formal claim for compensation however there is no evidence that this took place. In the Reply lodged on 16 June 2008 the employer’s solicitors confirmed that the matters in dispute were in accordance with the dispute notices attached to the application and the exchange of offers attached to the application. There were none. It is apparent that the subject-matter of these proceedings is identical with the proceedings brought which are now under appeal, except for the compensation claimed. It is clear the employer did not put injury in issue or raise the application of sections 9A or 11A of the 1987 Act in matter 4101/08 for whatever reason. The matter was listed for conciliation/arbitration and on that occasion the parties were able to come to an agreement as to the worker’s entitlement to past weekly compensation.
There are two authorities relied on by the worker in support of the claim that the consent award in matter 4101/08 created an estoppel as to injury such that the employer was prevented from arguing or succeeding on that issue in later proceedings. The two authorities are Dimovski and Coggins. In Dimovski as I have earlier noted the argument based on the alleged estoppel by reason of the consent award did not succeed however the appeal was allowed on a quite different point relating to contribution between employers. The statements by Handley JA and Hodgson JA must therefore be regarded as obiter dicta, although deserving of great respect.
In Coggins, while there was an estoppel by reason of a consent award, this did not prevent the worker from claiming weekly compensation after the date on which the consent award was made. It was held that the Arbitrator was entitled to consider the case on its merits and make a determination on the evidence unrestrained by the consent award. This decision does not, it appears to me, support the worker’s case.
It was sought to argue that Neilson CCJ in Anderson had been speaking of issue estoppel and not res judicata and in this case there was a res judicata. It is clear that a consent award does give rise to res judicata as to the subject of that consent award. Thus, in this case, both parties will be estopped from denying that the worker was entitled to receive weekly compensation by reason of the pleaded injury from 18 May 2006 to 15 August 2008 at the rate agreed. The estoppel with which Neilson CCJ was dealing in Anderson does appear to me to be identical with the estoppel which is now said to arise in this case and is properly called issue estoppel rather than res judicata.
Apart from Anderson there is another authority to which I was not referred which has direct relevance to the facts of this case. It is Davies v Bisaxa Pty Ltd t/as Sir Joseph Banks Nursing Home [2006] NSWWCC PD 103 (‘Davies’), a decision of Roche ADP. In that case the parties had agreed to a consent award as to the loss of use of the worker’s left leg. In a later claim for weekly compensation the Arbitrator found in favour of the employer and the worker appealed relying, inter alia, on the estoppel said to arise from the prior consent award. In holding that there was no estoppel, the Acting Deputy President said this at [48]:
“The Appellant Worker would say that the present case that the issue of ‘causation’ was so ‘relevant’ to the ‘subject matter’ of the First Application that it was unreasonable of the Respondent Employer not to raise it rather than paying the sum of $3,000.00 found by the Appeal Panel Certificate and, therefore, the Respondent Employer should not be allowed to rely on its defence in the Second Application. Against that the Respondent Employer submits that it was justified in not litigating the issue of causation in the First Application because the percentage loss and the dollar amount were both extremely modest. It made a ‘commercial decision’ to pay that amount. I agree with the Respondent Employer. Given the way the proceedings unfolded and the limited information available to the Respondent Employer in the First Application, it was not unreasonable of it to pay the modest amount claimed. However when faced with a claim for continuing weekly compensation from a worker now aged 45 it was entitled to scrutinise the claim more closely and to take all issues into account. It was also entitled to present all available evidence to the Arbitrator and invite a determination of the claim on its merits, including a determination on the issue of causation of the Appellant Worker’s incapacity.”

Earlier in his reasons the Acting Deputy President had referred to part of the passage of Anshun which I have set out above at [62].
In Rinker the Arbitrator had held that the employer was estopped by consent orders for weekly payments from disputing that the worker had suffered an injury. The Deputy President held that he had erred in this regard. While there was a res judicata estoppel in respect of the period specified in the consent orders, without evidence, it was not possible to conclude whether any issue estoppel arose from them (at [117]). The Deputy President however went on to say at [129]:
“In general, however, if an employer refrains from raising issues such as, for example, notice of claim or notice of injury in earlier proceedings, it may well be prevented from relying on those issues in later proceedings against the same worker involving the same incident.”
Sections 61 and 254 of the 1998 Act provide that compensation is not payable unless notice of injury is given to the employer as soon as possible after the injury happened and before the worker has left the employment. There is however provision to excuse the worker from compliance with this in specified circumstances. Sections 65(7) and 261(1) of the same Act both provide that compensation cannot be recovered unless the claim has been made within six months of the injury. There are, however, some further provisions in relation to this with which it is unnecessary, in my opinion, to deal. It is clear from the insurer’s letter of 27 March 2007 that weekly payments for compensation were not to be made because of the late notification of injury.
Section 289 of the 1998 Act relevantly provides that:
“(1)A dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made;
(a) disputes liability for the claim wholly or in part, or
(b) fails to determine the claim as and when required by the Act
NOTE: The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments without having disputed liability constitutes a failure to determine the claim.”
I infer from the materials placed before the Commission in these and earlier proceedings that the initial notification of injury was made following the insurer’s advice to the worker’s solicitors on 23 January 2007 that it had no record of a claim having been lodged. The first claim was for lump sum compensation and was made by letter of 15 March 2007 which was not relied on in these proceedings but is to be found in Application 3712/07. I would further infer from the worker’s solicitors’ letter of 19 March 2008 that the insurer did not consider it necessary to respond to the claim for weekly compensation since the letter concludes “Should we not receive response from you within the period stipulated, we shall consider that a dispute exists.” The sole matter relied on by the insurer in not responding to the claim for compensation was that the injury had not been reported within two months of its occurrence. If matter 4101/08 had proceeded to arbitration, rather than being settled, the question arises what issues would have had to be determined by the Arbitrator. Would they have been limited to the failure of the worker to give notice of injury? The employer or insurer may arguably have been taken to concede injury, incapacity and all other matters, apart from notice of injury, entitling the worker to the compensation sought. Is an employer or insurer, in the case of an injury not reported in accordance with the statutory provisions referred to, obliged to put every conceivable matter in issue in the event that the failure to give notice by the worker is excused? It is likely that the employer will have no knowledge of the circumstances of the alleged injury especially in a case of psychiatric/psychological injury without any objectively verifiable injurious event. It appears to me that the only matter for determination by the Arbitrator would be the notice of injury question unless leave were given to rely on other matters. So far as other matters were or might have been taken to have been conceded, these would amount to admissions by the insurer in much the same way as making payments of compensation. As the Chief Justice noted in Department of Education and Training v Sinclair [2005] NSWCA 465 at [93]; (2007) 4DDCR 206:
“Finally, I would particularly reject any suggestion that an employer might adversely affect their position in the Commission by not fully investigating each possible defence prior to making their first payment. Such an outcome would have the effect of deterring precisely the kind of reasonable behaviour that beneficial legislation such as the Workers Compensation Scheme seeks to encourage.”
As I have earlier noted, the employer relied on a Court of Appeal decision which I take to be from the argument presented, JC Equipment. Although that case was determined principally on the construction of the workers compensation legislation and the separate regimes in relation to lump sum compensation and proceedings at common law, there are several aspects of the decision which I think are relevant to the present proceedings. At [67] Tobias JA drew attention to the social purpose of avoiding the cost of litigating small claims [at common law]. His Honour went on in the following paragraph to say this:
“68. If the respondent’s contentions are accepted, then given that an injured worker is entitled to statutory lump sum compensation irrespective of any question of fault on the part of his or her employer, the mere prospect of a subsequent claim for work injury damages is likely to inhibit an insurer from agreeing on the degree of permanent impairment for the purposes of calculating s 66 compensation lest it be bound by that acceptance for the purposes of the work injury damages threshold also. Such inhibition would inevitably lead to unnecessary disputation with respect to the degree of permanent impairment necessary for the purpose of the s 66 calculation albeit that such dispute may be resolved pursuant to Pt 7 of Ch 7 of the WIM Act. Although that mechanism is relatively straightforward, it still involves a cost to the community that might otherwise be avoided if agreement were reached.”
There is an additional aspect of the decision in JC Equipment which is relevant. There could be no issue estoppel since there had only been an agreement pursuant to section 66A of the 1987 Act as to the degree of permanent impairment and no consent award in respect thereof. Indeed, section 66B of the 1987 Act restricts the circumstances in which the Commission “may entertain proceedings for entry of an award to give effect to the agreement”. However, the respondent in that case sought also to rely on the doctrine of conventional estoppel. It was successfully submitted by the appellant that the mutual assumption of fact which was urged by the respondent (that there was a 16% permanent impairment) was adopted only as a conventional basis of the relationship of the parties for the purpose of calculating the section 66 entitlement and for no other purpose. The argument based on estoppel thus failed.
It seems to me that in the present case it emerged at the arbitration in 4101/08 that the claim for weekly compensation was capable of settlement in a relatively modest amount and the employer elected to settle it by way of a consent award. It is obvious from the terms of the award providing the compensation at $67.00 per week for the relevant period that this represented a most substantial compromise of the claim. To hold that the employer is now estopped from denying injury by reason of such settlement would place, in my view, an unreasonable fetter on the freedom of employers to settle claims which, although they are not made as small claims, are capable of resolution for relatively small amounts.
In Ashenden the Court of Appeal drew attention to the statutory authorisation of the parties to reach agreements as to the condition of the worker, notwithstanding the prohibition in section 45 of the Workers’ Compensation Act 1926 against contracting out of the provisions of the Act. The objectives of the Commission set out in section 367 of the 1998 Act are as follows:
“367(1)(a) to provide a fair and cost effective system for the resolution of disputes under the Workers Compensation Acts,
(b)to reduce administrative costs across the workers compensation system,
(c)to provide a timely service ensuring that workers’ entitlements are paid promptly,
(d)to create a registry and dispute resolution service that meets worker and employer expectations in relation to accessibility, approachability and professionalism,
(e)to provide an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts,
(f)to establish effective communication and liaison with the interested parties concerning the role of the Commission.
(2) In exercising their functions, the members of the Commission must have regard to the Commission’s objectives.”
Rule 15.9 of the Workers Compensation Commission Rules 2006 provides as follows:
“15.9 (1) Where the parties, or some of the parties, to proceedings in respect of a dispute agree as to the terms of an order to be made determining a dispute as between those parties, and that order is an order that the Commission otherwise has power to make, the Commission may determine the dispute as between those parties by making that order.
(2)An order referred to in subrule (1) may be drawn up, with the consent of each party who has agreed to the order endorsed on it and signed by the party or party’s legal representative or agent in the proceedings, and lodged.
(3) The Commission may made an order referred to in sub-rule (1) by signing the order as lodged under subrule (2).”
Having regard to these provisions regarding the procedure to be followed in the Commission, there is a clear legislative intention that the settlement of disputes is to be encouraged and employers would undoubtedly be less willing to enter into consent awards, if as a consequence, they were estopped from denying matters which they wished to deny in later and possibly more substantial proceedings for compensation.
In summary:
·        No authority to which I was referred or which I have discovered has as its ratio decidendi that a consent award, in all circumstances, estops parties from disputing in later proceedings those matters which must be taken to have been conceded as the basis for that award.
·        In this case, given the worker’s failure to notify his injury or make a claim for compensation for almost a year after his resignation, the greatest effect that the consent award can be given, apart from the resolution of the particular dispute to which it relates, is as an admission of those matters entitling the worker to compensation. Such admission like the payment of compensation must be considered in the light of all available evidence as to the occurrence of injury and in my opinion is of very little weight in this case.
·        The only matter relied on in the earlier proceedings was the failure to report an injury. Unless excused on one of the grounds provided in sections 61 and 254 of the 1998 Act this would have been sufficient to defeat the claim for compensation. Instead the claim was settled for a substantial compromise being a small fraction of the compensation which the worker would have received if successful. This is, in my view, an example of what was referred to in Anshun where a party may justifiably refrain from litigating an issue in one proceeding yet wish to later litigate it.
·        The emphasis in the workers compensation legislation on the resolution of disputes by agreement rather than the determination of the Commission requires that an issue estoppel should only be held to result from a consent award in those cases where the interests of justice clearly require this.
Accordingly, for the above reasons, I am not satisfied that the worker has established that the employer was estopped by reason of the consent award of 18 August 2008 from denying the worker had suffered injury as alleged in subsequent proceedings.
There has been no appeal by the worker against the factual finding made by the Arbitrator that he had not suffered an injury. The Arbitrator did not consider the effect of the consent award because she was clearly not asked to do so. In reviewing the decision of the Arbitrator I have had regard to that award and thus should, I think, examine all of the evidence in order to ascertain what is the “true and correct view” of this issue.
The admission of injury by reason of the consent award is of very little weight and must be considered in the light of all the evidence. The major deficiency in the worker’s case is the absence of a report from the treating psychiatrist and I would draw the inference that that doctor’s opinion would not assist the worker. The notes of Dr Wilkinson show that on two occasions, in October 2005 and July 2006, the worker complained of “stress” and on 22 June 2006 he was depressed and not working. However they do not confirm in the slightest the events related by the worker in his statement especially as to the events leading up to his resignation which took place, it appears, on 13 April 2006. I have taken that date from what he told Dr Potter: that it was the Thursday before Good Friday of that year when this happened. There is otherwise a discrepancy in the evidence regarding the date of his resignation which, regrettably, the employer has failed to clarify, although it should have the records available to do so. The claimed relevant period of employment in the Application was up to 18 April 2006. The worker told Dr Younan when he first saw him that he had a nervous breakdown when he was given a letter by the head teacher in, he said, May 2006. There is however no mention of this in Dr Wilkinson’s notes in either April or May 2006.
Dr Younan is the only psychiatrist whose opinion supports the worker. That opinion was initially based on Dr Wilkinson’s notes, what the worker told him and what the doctor observed. That doctor would undoubtedly have been assisted by the opinions of the treating psychiatrist(s) however the worker told him nothing about seeing Dr Baker although he did tell him that he’d seen a psychiatrist on one occasion, clearly not Dr Baker, who reportedly advised him to go to church and pray. It is unclear why the worker failed to tell Dr Younan about his continuing psychiatric treatment. The doctor was later given the reports of Dr Potter and the MAC together with documents relating to the appeal against the certificate of the AMS.
The worker told Dr Younan that the AMS had misrepresented what the worker had told him but the worker did not seek to explain, in his later statement, what the AMS had recorded. Nor did the worker in the same statement disclose anything about his continuing psychiatric treatment. As Dr Younan stated in his later report, he had no reason to disbelieve what the worker told him. He did not, however, consider the alternative, namely, that what he was told was the worker’s perception of events which did not correspond with reality. The worker’s complaint that he was given “the worst kids in the school” was clearly only the worker’s perception and, one would think, incapable of objective proof. Dr Younan related that the worker had had difficulties in “almost all of the schools he worked at” but he did not however think that this suggested incompetence on the worker’s part. This opinion was supported by three matters, being the worker’s account of his own personality, a period of one year at Muirfield High School without difficulty and the fact that he was given classes with difficult students. Each of the three matters referred to by Dr Younan is open to considerable doubt.
The onus of proving injury, either an injury as defined in section 4 of the 1987 and 1998 Acts or an aggravation of a disease referred to in section 16 of the 1987 Act, is on the worker. The preponderance of the medical evidence is against the worker and given the failure of the worker to give a complete history to Dr Younan, which history was substantially the basis of his opinion, I do not think that opinion should be preferred to that of Dr Potter and the AMS. Taking into account the settlement of the claim for weekly payments and circumstances in which this was done, including the worker’s failure to report an injury, his failure to make a claim before his solicitors did so and the relatively small amount of the settlement, and after considering the worker’s evidence and the medical evidence, I am not persuaded that he has established that he suffered an injury in the manner alleged. I am thus in complete agreement with the conclusion reached by the Arbitrator that the worker has not suffered a compensable injury.

DECISION

The appeal has been unsuccessful and accordingly the decision of the Arbitrator dated 19 February 2009 is confirmed.

COSTS

Each party is to pay his or its own costs of the appeal.

Anthony Candy
Acting Deputy President
24 August 2009

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE