--- Magistrate B R Wright. Melbourne REASONS FOR DECISION ---

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1 !Undefined Bookmark, I IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE Case No. D JOHN SAUNDERS Plaintiff v VICTORIAN WORKCOVER AUTHORITY Defendant --- MAGISTRATE: Magistrate B R Wright WHERE HELD: Melbourne DATE OF HEARING: 17 January 2014 DATE OF DECISION: 7 February 2014 CASE MAY BE CITED AS: Saunders v. VWA REASONS FOR DECISION Catchwords: --- Workers Compensation Rejection of Claim Injury to Back Prior Dismissal of Back Claim Proceedings in County Court Whether Issue Estoppel/Res Judicata - Anshun Estoppel Accident Compensation Act s APPEARANCES: Counsel Solicitors For the Plaintiff Mr C Mylonas Simon Legal For the Defendant Mr D Seeman Thomsons Lawyers LEGAL TRANSCRIPTS PTY LTD SUITE 18, 600 LONSDALE STREET MELBOURNE - Telephone

2 HIS HONOUR: 1 Mr Saunders claims weekly payments from 27 April 2012 together with reasonable medical and like expenses in respect of an injury on or about 25 May 1999 ( the May 1999 injury ) and "through the course of employment". However, para 4 of the Statement of Claim states "The injuries arose as a result of a refrigeration unit at the workplace in Ordish Road Dandenong falling on to the plaintiff while in the course of his employment with the defendant." 2 Thus, it was pleaded that the injury occurred on a single date on or about 25 May The case proceeded before me on this basis. 3 The Particulars of Injuries in the Statement of Claim include injuries to the neck, back, including a compression wedge fracture of the spine, left arm, left elbow and consequential problems such as anxiety and depression, chronic pain and sleeplessness. 4 Although the defendant is the Victorian WorkCover Authority, this is because the former employer, J&N Saunders Pty Ltd ( the employer ), is apparently no longer in existence. Of course, the claim for weekly payments is for a period commencing almost 13 years after the alleged May 1999 injury. 5 The Defendant in its Defence before me pleads, amongst other things, that the claim for the May 1999 injury was accepted and allocated a claim number. It further pleads that as a result of a dismissal of County Court proceedings ( the earlier proceedings ) between the same parties on 7 December 2010, that Mr Saunders is estopped from seeking the relief claimed in these proceedings. Further, it says there is a res judicata between the parties. 6 It was agreed between the parties that this special defence be dealt with as a preliminary issue. There were no significant differences as to the facts of the matter. 1 DECISION

3 7 The earlier proceedings were in fact initially issued in the Magistrates' Court and later transferred to the County Court. The same Statement of Claim, albeit with some later additional amendments, was before both courts. However, the basis of the claim and the Particulars of Injuries were unaltered. 8 The Statement of Claim in the earlier proceedings also claimed injuries to the neck, back and left arm together with similar consequential problems to those set out in the present Statement of Claim. In addition, it also claimed injuries to the right arm and leg as well as Q Fever. 9 Paragraph 4 of the Statement of Claim in the earlier proceedings stated the "Plaintiff was injured through exposure to the Q Fever through the handling of animal carcasses and being exposed to animal fluids and blood and was also injured in a transport accident in or about 1987 whilst driving a vehicle in the course of his employment." 10 The Prayer for Relief in the earlier proceedings sought weekly payments for various periods, namely 1 January 1993 to 30 December 1993, 3 February 2003 to 31 December 2003, 1 January 2006 to 1 January 2008 and from 27 December 2000 to the date of issue and continuing at the rate of no current work capacity likely to continue indefinitely from 27 December The Defence in the earlier proceedings denied any work related injury with the employer or entitlement therefrom as well as denying any incapacity for employment. Thus, both work causation and incapacity were specifically denied in that Defence in the County Court. 12 The matter came on before His Honour Judge Wischusen in the County Court on 6 December 2010 at 2.32 p.m. On that date Counsel for Mr Saunders opened his client's case. A transcript was produced to me. After an hour the case was adjourned to the next day with the Opening yet to finish. 13 On 7 December 2010 Judge Wischusen ordered the Defendant to pay agreed 2 DECISION

4 costs and otherwise dismissed the proceedings "as set out in the Amended Statement of Claim dated 6 February 2009 (p.11 of the Plaintiff's court book). There was no disagreement before me that this was the amended Statement of Claim that I have discussed above (see, p.2 of the transcript, line 5). It was agreed between Counsel that His Honour's Order was by consent of the parties. 14 Despite the Defence in the present proceedings alleging that "compensation was paid to the plaintiff in accordance with the said Act", I was not informed of any such payment save for the payment of costs. Also, I was not referred to any terms of settlement. 15 However, there was a payment of costs at least to Mr Saunders pursuant to the Order. There is no doubt that an issue estoppel can arise out of a consent order anyway. (see, Chamberlain v. DCT 164 CLR 502). 16 The Defendant before me produced a claim form lodged on 7 August 1999 which was for the injuries suffered on 29 May 1999 when a refrigerator fell upon the plaintiff during the course of the plaintiff's employment with the employer. The claim form stated that Mr Saunders was a manager/labourer and sustained a "crushing injury to the back". 17 Although the relevant date in the present Statement of Claim refers to 25 May 1999, this appears to be the same incident. There was no dispute by the Counsel for Mr Saunders that this was the relevant claim form. It does not refer to any injury to the neck or other bodily part. 18 Counsel for the Defendant raises the issue of issue estoppel/res judicata on the basis that the May 1999 injury was before the County Court in the proceedings which were dismissed on 7 December This is despite the fact that the amended Statement of Claim made no reference to the May 1999 injury, but was limited to Q Fever and a specific back injury in or about 1987 while driving a vehicle in the course of his employment. 3 DECISION

5 19 He gave a number of reasons for that proposition. Firstly, he says that the further and better particulars of the Complaint dated 7 January 2009 in the earlier proceedings (in answer to a query as to when he lodged his claim), Mr Sunders replied that it was on or about 7 August 1999 for his lower back injury. This would apparently be the May 1999 injury as the relevant claim form shows a date stamp 2 August Secondly, he produced a letter from Mr Saunders solicitor to QBE Insurance dated 3 May 2010 stating Mr Saunders had previously conciliated the issue in relation to his back amongst other aspects and further stated our client suffered injury to his neck in the incident in 1999" (emphasis added). This apparently refers to the May 1999 incident. 21 Finally, he referred to the partial Opening by Mr Saunders' Counsel in the County Court on 6 December At pages 10 and in the transcript Counsel referred to the "refrigerator incident" in May 1999 as part of the chronology. 22 Counsel for Mr Saunders denied that there was an issue estoppel/res judicata in this case. He points to the complexity of the case as to injuries and incapacity in the earlier proceedings. He relied on the Federal Court decision of ACCC v. Safeway No.3 (2001) 119 FCR 1 to the effect that in a dismissal of proceedings without reason it often cannot be said which elements are not made out in order to consider whether in fact there is an issue estoppel/res judicata arising therefrom. 23 He submitted that on the pleadings the May 1999 incident was not before the County Court anyway when the earlier proceedings were dismissed. 24 I find that Counsel for Mr Saunders is correct in his submissions. The pleadings in the earlier proceedings did not refer to the May 1999 incident and thus any claim arising therefrom was not dismissed. Although the further and better particulars and Counsel's Opening referred to it, those aspects did not 4 DECISION

6 incorporate any claim for the May 1999 incident into the proceedings without specific amendment. 25 I note that the amended Statement of Claim in an earlier proceedings referred to a conciliation of the claim for weekly payments in November I was given no documents or detail of what was before the conciliator on that date, save for the limited correspondence I have set out above. This does not help the Defendant in its application before me anyway. 26 In the material before me there is a reference to a conciliation document dated 13 May 2010 which does refer to a claim no which is the claim number for the May 1999 claim. However, I have no further detail of that conciliation. It was not referred to in the amended Statement of Claim anyway. I appreciate that the conciliation took place after the date of the amended Statement of Claim, but no subsequent amendment appears to have been made prior to the dismissal of the earlier proceedings. 27 In any event, in its amended Defence in the earlier proceedings the Defendant denied any work related injury as claimed, or indeed at all, any incapacity for work as well as any total and permanent incapacity beyond 104 weeks. 28 In order to succeed in his claim in the earlier proceedings Mr Saunders would have had to have established liability for the Q Fever and/or spinal and associated injuries as claimed as well as work related incapacity. Thus, he needed to establish "X plus Y" as set out in the ACCC v. Safeway (No 3) decision. 29 The dismissal in the earlier proceedings does not necessarily involve a decision as to either since the action may have failed because X had not been established though Y had had been or vice versa, or in fact because neither had been established. Further, as pointed out by Counsel for Mr Saunders the claim for incapacity in the present proceedings post-dates the dismissal of the earlier proceedings by about 16 months. In this respect the High Court 5 DECISION

7 decision of Kuligowski v. Metrobus (2004) 78 ALJR 1031 is relevant. 30 Arguably the only matter that could be determined by the consent dismissal was the state of affairs as at the date of the dismissal and not at a date 16 months later. There is nothing to stop him making a later claim for incapacity because of the provisions of the Act (see, AMP v. Chalkley [1998] VSC 29). 31 There was some argument before me as to whether there was an Anshuntype estoppel in this case. The fact that the May 1999 incident and later claim was not incorporated into the earlier proceedings may arguably have given rise to such an estoppel if in fact later proceedings had been issued seeking weekly payments for the same periods as sought in the earlier proceedings. However, that is not the case here. The claim for incapacity in the present proceedings commences much later than the date of the dismissal of the earlier proceedings. 32 Both parties raised the issue as to whether Mr Saunders had to show any change of circumstances to justify weekly payments after the dismissal of the County Court action. 33 As there was no claim for the May 1999 injury before the County Court at the time of dismissal, I do not find that Mr Saunders has to show any change of circumstances. It will be necessary for him to prove that any such work related injury in May 1999 results in or materially contributes to any incapacity for work for the period claimed for the same reasons I have expressed above. 34 As he has not received any weekly payments for the May 1999 injury the question of entitlement after 130 weeks payments does not arise in these proceedings at this stage. 35 As the preliminary issue is now resolved in favour of Mr Saunders I will proceed to continue the hearing of these proceedings on the merits. I seek the parties' views as to an appropriate part heard date. 6 DECISION

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