Reino Tapio Westlin v Pdc Constructions [1991] ACTSC 52 (26 July 1991)

SUPREME COURT OF THE ACT

REINO TAPIO WESTLIN v. PDC CONSTRUCTIONS
S.C. No. 326/82
Estoppel

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Estoppel - Workman's Compensation Proceedings - Common Law Action - Negligence of Employer - Injury during Employment by Defendant - Aggravation of injury during employment by another - Partial Physical Incapacity - Total Economic Incapacity - Consent Award - Apportionment between Employers - Extent of Estoppels.

Workman's Compensation Act 1953

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531-533.

Neall v Watson (1960) 34 ALJR 364

Somadaj v Australia Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285.

Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; (1968) 61 CLR 120 at 129

Meskenas v British Paints (Australia) Pty Ltd (1964-65) NSWR 1640; (1965) 66 SR (NSW) 336

Lombardo v Stuart Bros Pty Ltd (1967) 68 SR (NSW) 159

National Employers Mutual General Insurance Association Ltd v Calver (1983) 3 NSWLR 107 at 109, 110

Egri and Anor v DRG Australia Ltd (1988) 19 NSWLR 600

Fishlock v Plummer (1950) SASR 176

HEARING

CANBERRA
26:7:1991

ORDER

Grant leave to Defendant to file out of time Defence served on Plaintiff.

Make rulings of law as set out in these Reasons.

The costs of and incidental to the application be costs in the cause.

DECISION

This is the determination of a number of points of law raised by the pleadings in an action for damages for personal injury, which the Plaintiff alleges he suffered as the result of the negligence of the Defendant as his employer. The accident is alleged to have happened on 3 August 1981. I hope to give my decision before its tenth anniversary.

2. The points relate to the effect that findings said to have been made in Workers' Compensation proceedings have upon the issues that may be raised in this Supreme Court action. They can best be understood against the background of the history of the two pieces of litigation.
The Workers' Compensation Proceedings

3. By an application dated 19 August 1982 the Plaintiff applied for an arbitration under the Workmans' Compensation Act 1953. The Respondents were the present Defendant and Leno Sella and Mirko Paven trading as Sella and Paven.

4. The application alleged that on 3 August 1981 personal injury by accident arising out of the course of his employment was caused to a workman (no doubt, the applicant) employed by the present Defendant, and the injury was exacerbated between 5 May 1982 and 10 July 1982 arising out of and in the course of his employment with Sella and Paven.

5. The particulars of the accident were:
"(a) On 3 August 1981 the applicant suffered an injury to his

back following a fall at work whilst carrying out his duties as
a Scaffolder.
(b) Between the 5th May 1982 and 10th July 1982 in the course
of heavy labouring work the applicant's back was subjected to
repeated minor traumas of a repetitive nature resulting in an
exacerbation of his back condition"

6. The nature of the injury was alleged to be injury to the back and continued head pain, and total incapacity for work was claimed. The Applicant alleged payment of compensation from 3 August 1981 to 3 September 1981 and from 7 September 1981 to 1 December 1981.

7. Compensation was claimed in respect of total incapacity from 6 July 1982.

8. The Defendant's answer was dated 5 October 1982. The grounds on which it denied liability were:

"(a) That the Applicant was not incapacitated as alleged.
(b) That the Applicant has not been incapacitated since 2
October 1981.
(c) That any incapacity since 2 October 1981 from which
the Applicant may have suffered is unrelated to the Applicant's
employment with the First Respondent.
(d) That the Applicant's average weekly earnings were
not as alleged in particulars numbered 7 and 8.

9. The undated answer filed by Sella and Paven denied liability on the following grounds

1. "The Applicant did not suffer an injury by accident
whilst employed by the Secondnamed Respondent.
2. The Applicant is not incapacitated for work.
3. If the Applicant is incapacitated for work such
incapacity does not arise from any injury by accident arising
out of or in the course of employment by the Secondnamed
Respondent.

10. The application was heard and determined in the Magistrates Court.

11. On 12 July 1982, the Magistrate made an award which included the following findings.

1) The Plaintiff was employed by the Defendant on 3 August 1981, and
was employed by Sella and Paven between 5 May 1982 and 10 July 1982.
2) On 3 August 1981 personal injury from accident arising
out of and in the course of his employment by the Defendant was
caused to the Plaintiff, and that injury was aggravated by his
employment with Sella and Paven between 5 May 1982 and 10 July 1982.
3) As a result of the injury and the aggravation the
Plaintiff was and remained totally incapacitated for work
since 6 July 1982.
4) Sella and Paven were liable to pay compensation from 6 July
1982 to 30 September 1982, on which date their liability
ceased, and the Defendant was liable to pay compensation from
1 October 1982 and continuing. The award then made orders
consequential upon those findings.

12. On 29 July 1983 the Defendant filed a Notice of Appeal against that award, in which the Plaintiff was named as first respondent and Sella and Paven as second respondent.

13. The appeal was heard by Kelly J. in this Court. On 7 March 1986, His Honour allowed the appeal, and set aside so much of the Magistrate's award as found (i) that the liability of Sella and Paven ceased on 30 September 1982 and (ii) that the Defendant was liable to pay compensation on the basis of total incapacity from 1 October 1982. He remitted the matter to the Magistrate to be dealt with in accordance with his judgment. His reasons for judgment make clear that the findings of the Magistrate numbered 1 2 and 3 above, that is, the injury during his employment by the Defendant, the aggravation by his employment with Sella and Paven and the total incapacity for work from 6 July 1982 resulting from the injury and the aggravation, were not challenged on the appeal or set aside by his order.

14. The principal question on the appeal was whether there was evidence that the aggravation between May and July 1982 of the condition which followed the accident on 3 August 1981 had resolved by 30 September 1982 to the point where the only remaining cause of the incapacity was the fall of 3 August 1981.

15. It is also noted that though the incapacity was physically only partial, the Magistrates' finding that economically it was total was not challenged or set aside.

16. When the matter came back before the Magistrate on 6 April 1987, Counsel for the Plaintiff informed him that the Plaintiff had, since July 1985, found employment from which he earned sufficient to disentitle him to compensation. There was then no claim for compensation after July 1985. The only question remaining was said by Counsel to be the question of contribution between the two insurers from July 1982 to July 1985. No further evidence was called.

17. Counsel for the Defendant submitted that for what was then a closed period, both employers were responsible, and that the easiest and fair way to deal with it was to halve the responsibility.

18. Counsel for Sella and Paven did not seek to argue otherwise, and the Magistrate made findings accordingly. He ordered the Defendant and Sella and Paven in equal shares to pay compensation for the relevant closed period, and made consequential orders about medical expenses and costs. When the formal award was drawn up, it was endorsed with the consent of the solicitors for each of the three parties to it. It may also be noted that the formal award closes the relevant period on 3 July 1984, not 1985, which had been mentioned by Counsel at the hearing on 6 April 1987.

19. The other matter that is remarkable about what I have called the consent award, is that it dealt with the period between 6 July 1982 and 30 September 1982.

20. The finding that the Magistrate had made in his first award, that Sella and Paven were liable to pay compensation between those two dates, had not been upset on the appeal. Yet the consent award recited that the first and second Respondents were liable to pay compensation in equal shares from 6 July 1982, (not 1 October 1982) to 31 July 1984.

21. Since the finding and order in respect of the period 6 July 1982 to 30 September 1982 had not been set aside on appeal, it can only have been set aside by consent. There is no evidence that the Plaintiff was a party to the agreement which led to that consent.
The Supreme Court Action

22. The Writ was issued, accompanied by a Statement of Claim, on 9 March 1982, that is, two months before the Plaintiff began employment with Sella and Paven. The Statement of Claim alleged in summary:

1. Incorporation of the Defendant.
2. Employment by the Defendant of the Plaintiff.
3. Accident causing injury on 3 August 1981.
4. Negligence of the Defendant.
5. Breach of statutory duty by the Defendant.
6. Damage.

23. Argument on the motion proceeded on the basis that a document called "Further Amended Defence" had been filed. There is no record of its having been filed in the Court record. However, it was obviously served, as a reply to it has been filed, so that the Plaintiff would not suffer as a result of my granting leave, as I now do, to the Defendant formally to file it out of time.

24. The Defence puts in issue the allegations in the Statement of Claim, and alleges contributory negligence. It then proceeds to recite the taking of the proceedings for Workmans' Compensation in the Magistrate's Court, the Appeal to the Supreme Court, and the subsequent award in the Magistrate's Court. It then alleges that a number of estoppels were created by the judgments in those proceedings, and sets out particulars of the estoppels as follows.

"(a) That the Plaintiff was totally incapacitated for work for
the period 3 August 1981 to 4 May 1982 arising out of the
accident referred to on 3 August 1981.
(b) That for the period from 5 May 1982 to 5 July 1982
the Plaintiff was able to return to his former occupation of
Scaffolder and suffered no economic loss.
(c) From 6 July 1982 to 30 September 1982 the Plaintiff
was totally incapacitated for all forms of work as a result of
an aggravation of a pre-existing spinal condition in the course
of his employment with an employer other than the Defendant.
(d) From 1 October 1982 to 6 April 1982 the Plaintiff
suffered partial incapacity for work as a result of the injury
suffered with the Defendant on 3 August 1981 and of the injury
suffered with another employer between 5 May 1982 and 6 July 1982.
(e) That for the period of partial incapacity from 1
October 1982 to 6 April 1987 the said incident in the
Defendant's employ was responsible for half of the Plaintiff's
incapacity."

As the argument developed, particulars (a) and (b) were conceded not to be in issue, and need not be considered further.

25. The Reply, which was filed on 15 December 1987, joined issue with the usual matters of defence, and, dealing with the estoppel, admitted the Workmans' Compensation proceedings, while adding further detail and particularity to their description.

26. The Reply then, in paragraph 2 (o) takes issue with the estoppels raised by the Defendant in terms which, so far as is now relevant, are as follows:

"(ii) in relation to paragraph 6(c) this was not a finding
made and the finding that was made in relation to the
apportionment of causation in the compensation proceedings is
one that relates to an issue that does not arise in these
proceedings and cannot therefore constitute an estoppel for the
purpose of these proceedings;
(iii) in relation to paragraph 6(d) and (e) there was no such
finding being that the Plaintiff was physically partially
incapacitated during that period but was economically totally
incapacitated and for the purposes of the compensation
proceedings was therefore totally incapacitated and that each
Respondent should bear this on a 50/50 basis as for the purposes
of the compensation proceedings each incident had a causative
role, however, that causation issue is not the same in these
proceedings and no estoppel arises;
(iv) in further answer to paragraph 6(c), (d) and (e) the
Plaintiff says and so it was found in the compensation
proceedings that the aggravation occurring in the employ of the
second defendant was not due to any specific incident, wrongful
or otherwise.

27. Finally, in paragraph 2(p), The Reply sets out ten matters, being findings made in the compensation proceedings, which the Plaintiff alleges the Defendant is estopped from denying in the Supreme Court Action.

28. Not all of those are contested. As I understood the submissions, those set out in sub-paragraphs (p) (i), (iv) (v) and (viii) relate to facts that the Defendant does not seek to controvert in any event, so that I need not discuss them. Those remaining are as follows:

"(ii) On 3 August 1981, the Plaintiff sustained personal
injuries, namely injuries to his back and neck and bruising to
most parts of his body arising out of and in the course of his
employment by the Defendant;
(iii) the Plaintiff sustained a lumbar disc lesion as a result
of the said injuries suffered on 3 August 1981;
(vi) the said aggravation was not due to any specific
incident;
(vii) the Plaintiff continues to suffer from the lumbar disc
lesion sustained on 3 August 1981;
(ix) the Plaintiff's said incapacity was caused by the
injuries sustained on 3 August 1981 as aggravated by work with
Sella and Paven;
(x) the Plaintiff's said incapacity for work was
physically a partial incapacity but was economically a total
incapacity."

The Law

29. The starting point for my consideration is the locus classicus of Dixon J. as he then was in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531-533.

"The decretal order does not, of course, deal with the title to
the undisposed of three-twentieths share of income. The case
is, therefore, not one of res judicata in the proper sense. The
principle upon which the parties are precluded from denying to
the clause an operation and effect sufficient to catch the
undisposed of share of income is called estoppel by record or
issue-estoppel.
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.
Nothing but what is legally indispensable to the conclusion is thus
finally closed or precluded. In matters of fact the issue-estoppel
is confined to those ultimate facts which form the ingredients in
the cause of action, that is, the title to the right established.
Where the conclusion is against the existence of a right or claim
which in point of law depends upon a number of ingredients or
ultimate facts the absence of any one of which would be enough to
defeat the claim, the estoppel covers only the actual ground upon
which the existence of the right was negatived. But in neither case
is the estoppel confined to the final legal conclusion expressed in
the judgment, decree or order.
The judicial determination concludes, not merely as to the point
actually decided, but as to a matter which it was necessary to
decide and which was actually decided as the groundwork of the
decision itself, though not then directly the point at issue.
Matters cardinal to the latter claim or contention cannot be
raised if to raise them is necessarily to assert that the former
decision was erroneous.
In the phraseology of Lord Shaw, "a fact fundamental to the
decision arrived at" in the former proceedings and "the legal
quality of the fact" must be taken as finally and conclusively
established (Hoystead v Commission of Taxation (2)). But
matters of law or fact which are subsidiary or collateral are
not covered by the estoppel. Findings, however deliberate and
formal, which concern only evidentiary facts and not ultimate
facts forming the very title to rights give rise to no
preclusion. Decisions upon matters of law which amount to no
more than steps in a process of reasoning tending to establish
or support the proposition upon which the rights depend do not
estop the parties if the same matters of law arise in subsequent
litigation.
The difficulty in the actual application of these conceptions is
to distinguish the matters fundamental or cardinal to the prior
decision or judgment, decree or order or necessarily involved in
it as its legal justification or foundation from matters which
even though actually raised and decided as being in the
circumstances of the case the determining considerations, yet
are not in point of law the essential foundation or groundwork
of the judgment, decree or order."

30. There is nothing in the Workmans' Compensation Act 1953 of the Australian Capital Territory to found any distinction which would prevent the applicability to this case of the decision in Somodaj v Australia Iron and Steel Ltd [1963] HCA 50; (1963) 109 CLR 285. A final determination made in the Compensation proceedings between the parties to this action may give rise to an estoppel upon an issue common to those proceedings and the present action. The difficulty is that adverted to by Dixon J. of deciding whether the issues identified in this application were fundamental or cardinal to the final determination of those proceedings, or necessarily involved in it as its legal justification or foundation on the one hand, or whether they are matters which, even though actually raised and decided as being in the circumstances of the case the determining considerations, yet are not in point of law, the essential foundation or groundwork of the final award on the other.

31. I am assisted in this task by the cases to which Counsel have referred me, such as Meskenas v British Paints (Australia) Pty Ltd (1964-65) NSWR 1640; (1965) 66 SR (NSW) 336; Lombardo v Stuart Bros Pty Ltd (1967) 68 SR (NSW) 159; and Egri and Anor v DRG Australia Ltd (1988) 19 NSWLR 600.

32. Respectfully, I am especially grateful for the remarks of Clarke J.A. in that last case, at 609, 610 where he said,

"Frankly, I entertain considerable doubt whether ultimate findings in
the Compensation Court, which relate to specific issues arising under
the Workers' Compensation Act 1926, are capable of precluding a party
leading particular evidence in support of a claim for damages in later
proceedings.
The issues which arise under the different proceedings, while
bearing a marked similarity, are essentially different. For
example, the tribunal exercising jurisdiction under the Worker's
Compensation Act, is concerned to determine whether an Applicant
is, and has been, partially or totally incapacitated for work - that
is, to resolve issues which are defined by reference to the
terms of the statute providing for awards of compensation. That
this is a specific task involving an appreciation of the
controlling statute is obvious: see Arnotts Snack Products Pty.
Ltd. v Yacob [1985] HCA 2; (1985) 155 CLR 171 especially at 176-179.
Furthermore the Compensation Court is concerned only to
determine whether a worker is, and has been incapacitated. It
is not concerned with the future.
No doubt similar, if not identical, evidentiary questions will
arise in both areas but they will do so in contexts in which the
ultimate issues are different.
Furthermore ultimate findings of the Compensation Court,
notwithstanding that they are essential to the award, may well
be irrelevant to the issues in a common law claim for damages
between the same parties. For instance, a finding that a worker
was partially incapacitated within the meaning of the Workers'
Compensation Act, during a specified period, would arguably not
require that in later proceedings a tribunal of fact, be it
judge or jury, assess damages for impairment of earning capacity
in the past upon some restricted basis. Questions of partial or
total incapacity under the Workers' Compensation Act are not in
strictness in issue in damages proceedings. It is no doubt
relevant in both cases to show that a Plaintiff suffers from a
disability or has lost some work capacity but in an assessment
of damages the issues are whether his earning capacity has been
impaired and, if so, what sum affords adequate compensation for
the loss which that impairment had caused him. These issues
require a consideration of many factors including the degree of
disability, the worker's industrial background and education,
mitigation of damages including attempts to obtain work and the
state of the labour market generally.
Likewise, it is at least arguable that a finding of total
incapacity in the Compensation Court is incapable of sustaining
a relevant estoppel in a damages claim arising out of the same
work injury. It is unnecessary to elaborate further as the point
I am seeking to emphasise is that the Compensation Court is
concerned with markedly different ultimate issues than is the
court assessing damages for tortiously inflicted injuries."

33. Later in his judgment Clarke J. acknowledged that the authorities are still binding which apply the law about estoppel to this area of litigation, but his remarks help to focus attention on the need to identify with precision the exact question which is said to have been identical, and to fall for decision, in both proceedings.
The Defendant's Estoppels

34. The three matters of estoppel raised by the Defendant that I have to deal with are those set out in sub paragraphs (c), (d) and (e) in paragraph 6 of the Amended Defence.

35. Sub-paragraph 6 (c) relates to the period from 6 July 1982 to 30 September 1982, and concerns total incapacity for work. Sub-paragraphs (d) and (e) relate to the period from 1 October 1982 to 6 April 1987, and concern partial incapacity for work.

36. Sub-paragraph 6 (c) claims that the Plaintiff may not assert to the contrary of the proposition that from 6 July 1982 to 30 September 1982 he was totally incapacitated as a result of an aggravation of a pre-existing spinal condition in the course of his employment with an employer other than the Defendant.

37. I find that statement too complex to deal with in a satisfactory way and the phrase "pre-existing spinal condition" to be dangerously imprecise.

38. The Magistrate's findings as set out in the first award, so far as they concerned the period from 6 July 1982 to 30 September 1982, were not attacked on appeal. It was the situation thereafter that was litigated there, and which was the subject matter of the subsequent consent award.

39. Both the Magistrate and Kelly J. made a finding that before the accident on 3 August 1981, the Plaintiff had a history of back trouble. But that finding, deliberate and formal though it may be, concerned only an evidentiary fact, and not an ultimate fact forming the title to the right to compensation which was found to exist over that period. If the fact is intended to be encompassed within the phrase "a pre-existing spinal condition' then the pre-existing spinal condition is not the subject matter of any estoppel.

40. The findings that were necessarily involved in the first award, so far as concerns the period from 6 July 1982 to 30 September 1982, appear to me to be as follows:

1. On 3 August 1981, the Plaintiff was employed by the
Defendant.
2. On that date the Plaintiff fell at work, thereby sustaining
personal injury by accident arising out of and in the course of
his employment by the Defendant.
3. Between 5 May 1982 and 10 July 1982 the Plaintiff was
employed by Sella and Paven.
4. Arising out of and in the course of his employment by Sella
and Paven, the Plaintiff suffered personal injury by accident,
which consisted of the aggravation of the injury which had
arisen out of and in the course of his employment by the
Defendant.
5. As the result of the personal injury suffered in his
employment by the Defendant together with the aggravation of it
suffered in the course of his employment by Sella and Paven, the
Plaintiff was totally incapacitated for work.
6. That total incapacity for work subsisted over the period
from 6 July 1982 to 30 September 1982.

41. The first award ordered only Sella and Paven to pay compensation in respect of the relevant period.

42. The consent award ordered the Defendant and Sella and Paven to pay compensation in respect of the period in equal shares.

43. It seems to me that the six propositions that I have set out above are necessarily involved in either award as its legal justification or foundation. If anything, they are more clearly necessary to the consent award than to the first award.

44. It follows that the Plaintiff and the Defendant are each estopped from asserting to the contrary of any of those 6 propositions.

45. I do not think that any other proposition is involved, so far as this period is concerned. I would therefore rule that the estoppel set out in sub-paragraph 6 (c) of the defence does not arise. The estoppels that do arise in respect of the relevant period are those 6 that I have set out above.

46. But the critical area of the dispute for the Defendant's purposes are the estoppels identified in sub-paragraphs 6(d) and 6(e) which refer to what Mr Nock called the period of joint responsibility. In terms of what was decided in the appeal, that may be accepted as a convenient and accurate description.

47. Again, in the form in which they appear in the pleading, each of those sub-paragraphs does not accurately reflect the findings upon which the final award rested.

48. The period of time pleaded is that from the end of the period about which there was no dispute during the appeal, namely 30 September 1982, to the date of what I may call the final consent award, namely 6 April 1987.

49. Both sub-paragraphs refer to the suffering by the Plaintiff of partial incapacity for work.

50. The potential for error in that phrase is made clear from a reading of the reasons for decision of Kelly J. on the appeal, when he said,

"It is important to note that the learned Magistrate found that
the physical incapacity from which the workman was suffering
from 1 October 1982 onwards was partial only. He found, as on
the evidence he was entitled to do, that the workman was capable
of doing work of a sedentary nature. But, nevertheless, in due
course he found, following the tender of further evidence
concerning the state of the labour market, that the workman was
in fact totally incapacitated from 1 October 1982 because his
labour was not, having regard to his partial physical
incapacity, saleable in any labour market readily available to
him. Ball v William Hunt and Sons Ltd. (1912) AC 496 at pp
499-500. As I have said, no challenge is made to that finding
of total incapacity.
The principal question is whether there was evidence that the
aggravation between May and July 1982 of the condition which had
followed the fall on 3 August 1981 had resolved itself by 30
September 1982 to the point where the only remaining cause of
the partial physical but total economic incapacity from which
the workman was then suffering was the fall of 3 August 1981."

51. The whole point of his decision was that there was no such evidence. When the matter was remitted to the Magistrate, there was no further evidence. The consent award, although made on 6 April 1987, included a finding that the Plaintiff was totally incapacitated for work from 6 July 1982 to 31 July 1984. The order for compensation covered the period only from 6 July 1982 to 31 July 1984.

52. Two matters relevant to sub-paragraphs (d) and (e) follow.

53. The first is that the period in respect of which any estoppel operates is restricted to that between 6 July 1982 and 31 July 1984.

54. The second is that the relevant incapacity is not partial, but total. The two essential findings of fact that go to make up that complex conclusion are -

7. That over the period between 6 July 1982 and 31 July 1984
the Plaintiff was at least partly incapacitated from work, and
8. That over that period, having regard to the extent of his
partial incapacity, his labour was not saleable in any labour
market reasonably available to him.

Neither party may be heard at the trial to controvert either of those propositions.

55. The next essential finding on the appeal by Kelly J. was that at least part of the causation of the Plaintiff's condition from which he suffered after 30 September 1982 was the aggravation of his injury, which was due to his employment by Sella and Paven. The weight of the evidence compelled him to a finding that both employers were responsible for the condition in which the workman found himself after 10 July 1982. However, he remitted the matter back to the Magistrate so that he could make the definitive finding.

56. Before the Magistrate, there was, as I have said, no further evidence.

57. The consent award recites the finding that "as a result of the said personal injury and aggravation, the applicant was totally incapacitated for work from 6 July 1982 to 3 July 1984." The Defendant and Sella and Paven were ordered to pay weekly compensation for that period.

58. It is therefore incontestable by either party in this action -

9. That between 6 July 1982 and 31 July 1984 the Plaintiff's
partial physical, but total economic, incapacity was the result
both of the accident, the subject of this action and of his
subsequent employment by Sella and Paven.

59. In the context of this case, estoppel operates as a rule of evidence. What effect the incontrovertibility of those propositions will have upon an award of damages at Common Law will be a matter of law, to be discussed at the trial.

60. I do not think that it is appropriate for me, not having heard any other evidence in the case, to make any rulings on points of law other than those raised in this application, which are restricted to the question of what precise estoppels do arise from the compensation proceedings. The estoppel alleged by the Defendant in sub-paragraph 6 (d) of the defence does not arise.

61. Lastly, the point of the estoppel referred to in sub-paragraph 6 (e) is that the responsibility of the accident of 3 August 1981 for the incapacity suffered by the Plaintiff over the relevant period is only one half.

62. In the original hearing before the Magistrate, and on the appeal, there were no findings which apportioned responsibility for incapacity between the two employers in respect of any period. Nor was any evidence led or argument put forward bearing upon the question of apportionment when, after the appeal, the matter came back before the Magistrate. It may well have been decided that since what was then being dealt with was a closed period, the costs of litigating the issue would outweigh any benefit either insurer might derive from a finding which diverged, in either direction, from a finding of equal responsibility.

63. But, whatever the reason, the award was made, and consented to. Its terms can be supported only on the basis of a finding that the responsibility for compensation for total incapacity over the period was to be shared equally between the two employers. The plaintiff had no interest to seek that or any other apportionment in those proceedings. He was to receive compensation as for total incapacity over the whole period, and it mattered not to him which insurer was to pay him.

64. He was probably not a party to the discussions or agreements between the insurers that led to the consent award.

65. In any subsequent Workers' Compensation proceedings to which he and either of the two employers were parties there is no doubt that he and they would each be estopped from propounding that the present Defendant was responsible for more than 50% of his total economic incapacity over the period.

66. But does it follow that any estoppel arises in the Common Law proceedings with respect to that issue?

67. For example, in considering the responsibility of the present defendant for damages for pain and suffering over the period, does it follow that the Defendant would be responsible for only half of what would otherwise have been awarded? I think not, because responsibility for pain and suffering is simply not in issue in Workers' Compensation proceedings.

68. The question resolves itself into two. The first is whether the concept of total incapacity, made up of partial physical incapacity, together with unsaleability of residual capacity which is in issue in the Compensation proceedings, is essentially the same as loss of income earning capacity, in so far as it has actually resulted in economic loss, which is in issue in the Common Law proceedings. The second is whether responsibility for Workers' Compensation is apportioned between employers by the relevant legislation on the same basis as responsibility for causation of economic loss (in the form of loss of income earning capacity) is apportioned between two tortfeasors, or between two persons, one of whom is a tortfeasor and the other not.

69. As to the first, two questions that are common in both types of cases are exactly the same, namely, what were the injured person's physical capacities for work, and to what extent were those capacities potentially productive of economic gain. The way in which each of those elements is taken into account in quantifying the respective remedies is undoubtedly different, but so far as findings made on each of them are concerned, I think that there is no relevant distinction between the two jurisdictions.

70. On the second question, however, I think that it is clear that there is a relevant distinction.

71. As Latham C.J. pointed out in Ward v Corrimal-Balgownie Collieries Ltd [1938] HCA 70; (1968) 61 CLR 120 at 129, compensation is paid under the legislation in respect of incapacity resulting from an injury, not in respect of the injury itself. Incapacity is measured by loss of earning power.

"But in the case of Workers' Compensation the cause of an
injury (as distinct from the cause of an incapacity) is not the
important matter."

72. At pp 131-132 he discusses the possible apportionment of responsibility for incapacity resulting from two causes as follows:

"In considering the questions which arise in this field it must
be remembered that, although incapacity can never be more than
total, that is, 100 per cent, it does not follow that the
incapacity resulting from different causes can be separated into
portions in such a way that their total adds up to 100 per cent.
A man may suffer an injury which produces 60 per cent
incapacity. He may then suffer another injury which, separately
considered, would also produce 60 per cent incapacity. He has
100 per cent incapacity, not 120 per cent. His earning
capacity, before the second injury, was 40 per cent. As a result
of the second injury, it became nil. If he was employed by A
when he suffered the first injury he would be entitled to an
award of 60 per cent of the maximum compensation provided for in
sec. 9(1) (a) (and see sec.11). If, when employed by B, he
suffered a further injury which produced total incapacity this
misfortune would not relieve A from the payment for which he had
already become liable. The worker, however, would be able to
establish as against B that the injury which he suffered while
in B's employment had reduced him from 40 per cent capacity to
total incapacity. He can, therefore, recover compensation from
B on that footing. He would receive 60 per cent compensation
from A and 40 per cent compensation from B, thus being paid for
total incapacity (Harwood v Wyken Colliery Co. (1))".

What determines the degree of contribution to Workers' Compensation is the relative extent to which each injury is responsible for what proportion of the incapacity.

73. At Common Law quite different considerations arise. The difficulties involved in the Common Law concept of causation are quite different.

74. There is no need to attempt to expound them here. But once it is decided that in the relevant sense the Plaintiff's loss was caused by the Defendant's wrongful act, and is not too remote, then the Defendant is liable for all of it. If the loss is the result of the combined effect of two several tortious acts of two separate tort feasors, then each is responsible to the Plaintiff for the whole loss. Questions of apportionment between the tortfeasors only arise in third party proceedings taken by them against each other. They do not concern the Plaintiff.

75. As cases such as Fishlock v Plummer (1950) SASR 176 and Neall v Watson (1960) 34 ALJR 364 make clear, difficult questions may arise in deciding what part of a total complex of loss or injury is causally connected to a particular tortious act. But it is obvious that it is not done simply on the basis of apportioning responsibility according to the respective responsibilities of each injury for a discrete part of the incapacity.

76. There does not appear to me to be anything in Bushby v Morris (1980) 1 NSWLR 81 or Morris v George (1977) 2 NSWLR 552 which is contrary to the view I have expressed.

77. In fact, I think it is supported by the dicta of Moffitt P. in National Employers Mutual General Insurance Association Ltd v Calver (1983) 3 NSWLR 107 at 109,110 where he discusses the question of contribution between persons liable in respect of workers compensation.

78. Contribution is not what is in issue in the present case, but it is instructive to note the differences that he there sets out between the considerations relevant in compensation cases from those concerning contribution between tortfeasors.

79. As he points out at 110,

"(c) In respect of tortfeasors, decisions as to the quantum of
contribution depend upon a view of the degree of relevant fault
of each and the causative potency of the respective torts."

That is not the basis on which successive employers are made responsible for parts of the total compensation payable to an injured worker under the Act, whether or not the relevant legislation contains a provision corresponding to S.7A of the New South Wales Act.

80. I therefore hold that the estoppel set out in sub-paragraph 6 (e) of the defence does not arise.
The Plaintiff's Estoppels

81. The estoppels alleged by the Plaintiff to arise may be more summarily dealt with. They are set out in paragraph 2 (p) of the Reply, numbered (i) to (x).

82. As to (i), employment by the Defendant is not in issue. As to (ii) the Plaintiff no longer relies upon the particulars "namely injuries to his back and neck and bruising to most parts of his body" and the rest of the sub-paragraph is not in issue.

83. As to (iii) I rule that whether the Plaintiff suffered a lumbar disc lesion as a result of the injuries suffered on 3 August was an evidentiary issue, not an issue about a fact essential to the foundation of the order made. The alleged estoppel did not therefore arise.

84. (iv) and (v) are not really in dispute in this action, and I understood Counsel not to require me to rule on them.

85. (vi) Whether the aggravation was not due to any specific incident was an evidentiary issue, and no estoppel arises in relation to it.

86. (vii), (viii) and (ix) Estoppels raised by the final award can relate only to the period covered by it, which ended in July 1984. The estoppels alleged by the Plaintiff in these sub-paragraphs do not arise.

87. (x) I have already set out what in my view are the findings binding on the two parties in this subject area.

88. The Notice of Motion sought an order that the costs of this application be costs in the cause. Neither Counsel sought any other order, and, in the light of the rulings I have made, it seems to me to be the appropriate order in any event.

89. I have set out in these reasons my determinations of the various points of law raised on the pleadings. The only estoppels that arise are those numbered 1 to 9 inclusive.

90. I order that the costs of and incidental to the application be costs in the cause.