Deborah Jane Flint v Westpac Banking Corporation [1995] ACTSC 19 (14 March 1995)

SUPREME COURT OF THE ACT

DEBORAH JANE FLINT v. WESTPAC BANKING CORPORATION
No. SCA85 of 1994
Number of pages - 12
Worker's Compensation - Courts and the Judicial System - Estoppel

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Worker's Compensation - repetitive strain injury - causation - "aggravation" separate injury to pre-existing injury - compensation payable.

Courts and the Judicial System - choice of jurisdiction - injury sustained in ACT and aggravated in Queensland - plaintiff's ability to claim in separate jurisdictions - whether credit should be given with respect to award previously paid in another jurisdiction - could matter be barred as relitigation of previously determined issues.

Estoppel - issue estoppel - does finding of permanent partial incapacity prevent finding of total continuing incapacity.

Workers' Compensation Act 1951 (ACT), ss6, 7, 8, 9, 23, Schedule 1
Workers' Compensation Act 1916 (Qld), ss3, 8, 9, 14

Kay's Leasing Corporation Pty Ltd v Fletcher [1964] HCA 79; (1964) 116 CLR 124
Mynott v Barnard [1939] HCA 13; (1939) 62 CLR 68
Awdejew v Walkerden Bros (1958) 76 WN (NSW) 176
Dodd v Executive Air Services Pty Limited (1975) VR 668
Stevens v Head [1993] HCA 19; (1993) 176 CLR 433
Bushby v Morris (1980) 28 ALR 611 (PC)
Manser v Spry [1994] HCA 50; (1994) 68 ALJR 869
GK Sanford Pty Ltd v Jansen [1992] FCA 236; (1992) 36 FCR 83
ANU v Suharso, unreported, Supreme Court, Australian Capital Territory,

Higgins J, 19 January 1995
Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378

HEARING

CANBERRA, 31 January 1995
14:3:1995

Counsel for the Appellant: Mr R Crowe

Instructing solicitors: Gary Robb and Associates

Counsel for the Respondent: Mr G Lunney

Instructing solicitors: Macphillamy Cummins and Gibson
on behalf of their agents Moray and Agnew

ORDER

THE COURT ORDERS THAT:

1. The appeal be allowed.
2. The decision appealed from be set aside.
3. Leave be granted to the appellant to bring in an award reflecting
the terms of this decision.

DECISION

HIGGINS J This is an appeal from a decision of Magistrate Ward, delivered 31 August 1994. On 11 November 1993, the appellant applied for an award of compensation from the respondent in respect of injury sustained by her as a result of her employment between 1982 and February 1990. She claimed to have been totally incapacitated for work since February 1990.

2. The learned Magistrate found that the appellant had, in fact, suffered injury in the course of her employment with the respondent as alleged. She had developed tenosynovitis or repetitive strain injury. She first received treatment for that condition on 3 August 1982. She lost time from work thereafter from time to time but changes to her work patterns kept her in employment although the injury continued to trouble her. She did not, apparently, lose any earnings until February 1990.

3. His Worship was satisfied that, since February 1990, the appellant had been totally incapacitated for work. However, in his Worship's opinion, the entitlement to compensation which otherwise would follow from those findings had been barred by virtue of certain proceedings taken by the appellant in the State of Queensland.

4. Up to September 1989, the appellant had been employed by the respondent only in this Territory. She had been engaged here, and there is no doubt that her contract of employment had been entered into within and was governed by the law of the Australian Capital Territory: see, for example, Kay's Leasing Corporation Pty Ltd v Fletcher [1964] HCA 79; (1964) 116 CLR 124, 142-144 per Kitto J.

5. In September 1989, the appellant was transferred by the respondent to Queensland. She had, in the month preceding that transfer, engaged in work which had exacerbated the condition of her arms, wrists and hands beyond the usual level of discomfort and disability which she had experienced since 1982.

6. The injury was further exacerbated by the duties she performed for the respondent in Queensland. Finally, in February 1990, she ceased work. On advice, she made a claim for compensation addressed to the Workers' Compensation Board of Queensland (the WC Board).

7. It was accepted that the condition of which the appellant complained in February 1990 was only contributed to very marginally by the short period of time she worked in Queensland. It was an aggravation of the pre-existing condition.

8. In October 1990, the appellant and her husband returned to the Territory to live. It appears that this represented a change of plans brought about by a combination of the appellant's incapacity for work and her subsequent pregnancy. They had extended family in Canberra but none in Queensland.

9. On 5 September 1990 the WC Board referred the appellant's claim to the Orthopaedic Board (the O Board). This was a specialist medical board constituted under the Workers' Compensation Act 1916 of Queensland (the Queensland Act). The same day, that Board determined that the appellant had permanent partial incapacity caused by muscle strain of the left and right upper limbs. The extent of that incapacity was assessed as being "2 1/2% loss of efficient use of the right and left upper limbs".

10. The WC Board purported to act on this determination by notice to the applicant dated 20 September 1990. It characterised the determination as deciding "that you were no longer incapacitated for work by reason of the 'injury'".

11. As his Worship noted, this does not seem fairly or accurately to represent the apparent effect of the O Board's determination.

12. The notice proceeded to advise that the determination of 2 1/2% loss of efficient use entitled the appellant to $1,754.50 which was forwarded accordingly.

13. His Worship noted that the findings of the WC Board made no distinction between the incapacity caused by the Queensland employment and that caused by the Territory employment nor did it characterise the injury in terms of it being an exacerbation in Queensland of an injury caused prior to that exacerbation in this Territory.

14. His Worship considered that in consequence of this finding the appellant's claim in this Territory was barred by s23(1) of the Workers' Compensation Act 1951 (ACT) (the ACT Act). That provision states:

Except as provided by this section, a worker shall not be entitled, in
respect of personal injury arising out of or in the course of his or
her employment, to receive compensation from his or her employer both
independently of and also under this Act.

15. In his Worship's view, this was a barrier, not only by reason of the fact that the "exception" provided under s23(3) had no application, but also because:

What she (the appellant) now seeks from this Court is ... compensation
for the injury to her hands arising out of her employment with the
respondent in the ACT. She has already got that from her employer via
the Queensland Board. She cannot get it again.

16. Insofar as it is relevant, it should be noted that the appellant herself was not seeking to "double dip". She conceded that the respondent had to be given credit for any amounts paid under the Queensland Act in ascertaining the amount, if any, payable under the ACT Act.

17. The first question is whether s23 of the ACT Act bars action to assert rights arising under the ACT Act, apart from those rights referred to in s23(3) thereof when compensation has been received "independently of" the ACT Act. A second question is whether, in any event, an estoppel arises which would prevent the appellant from, in effect, relitigating the issue as to the nature and extent of the incapacity from which she suffers as a result of her employment by the respondent.

The right to compensation under the ACT Act
18. The appellant became entitled to claim compensation under the terms of the ACT Act when the condition affecting her arms (the tenosynovitis) first manifested itself. Section 9 of the ACT Act provides:

(1) Where -
(a) a worker contracts a disease or suffers an aggravation,
acceleration or recurrence of a disease; and
(b) any employment of the worker by his or her employer was a
contributing factor to the contraction of the disease or the
aggravation, acceleration or recurrence, as the case may be, whether
or not the disease was contracted or the aggravation, acceleration or
recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect.
(2) If -
(a) the death of the worker; or
(b) the total or partial incapacity for work for the worker,
results from the disease, or the worker obtained medical treatment in
relation to the disease, then, for the purposes of this Act, unless
the contrary intention appears -
(c) the contraction of the disease, or the aggravation, acceleration
or recurrence, as the case may be, shall be deemed to be a personal
injury to the worker arising out of the employment of the worker by
his or her employer; and
(d) the date of the death, the date of the commencement of the
incapacity or the date on which the medical treatment was first
obtained, whichever is the earlier, shall be deemed to be the date of
the injury.

19. A conclusion that "personal injury" has been suffered as defined by s9 gives rise to liability under s7(1):

Where a worker suffers personal injury arising out of or in the course
of the worker's employment, the employer is liable to pay compensation
in accordance with Schedule 1.

20. The definition of the term "disease" in s6(1) of the ACT Act is wide enough to include tenosynovitis.

21. There was uncontested evidence before his Worship that the appellant first received medical treatment on 3 August 1982. Treatment continued on and off until her transfer to Queensland.

22. In her written statement to the WC Board, in support of her application for compensation, the appellant stated that before her transfer:

I had completed workers' accident forms with the bank in ACT. I never
received any money from a workers' compensation insurer. All time off
had been paid by my employer.

23. It may be noted that it is the injury which founds the right to compensation. The quantification of any such claim is determined according to Schedule 1 to the ACT Act.

24. The relevant parts of Schedule 1 are as follows:

1. The amount of compensation shall be -
...
(b) where the worker is totally incapacitated for work by the injury,
in respect of the period of the worker's incapacity -
(weekly payments as prescribed)
(c) where the worker is partially incapacitated for work by the injury
- a weekly payment during his or her incapacity -
(weekly payments - difference between earning capacity and
pre-accident earnings up to the prescribe sum).
...
2. (b) where the worker is totally or partially incapacitated for work
by the injury -
...
(ii) subject to clause 2A regard shall be had to any payment,
allowance or benefit which the worker receives from his or her
employer during the period of the worker's incapacity and the amount
of the weekly payment otherwise payable under paragraph 1(b) or (c)
shall be reduced to such amount (if any) as is just and proper;

25. Clause 2A excepts payment, allowances or benefits which make up the difference between pre-incapacity earnings and post-incapacity payments pursuant to some industrial award or agreement. It is not relevant for present purposes.

26. It follows that, whilst the incapacity for work manifested itself in Queensland, the personal injury from which that incapacity resulted was sustained in this Territory.

27. In that respect, the situation differs from that considered by the High Court in Mynott v Barnard [1939] HCA 13; (1939) 62 CLR 68.

28. In that case, the worker was employed in Victoria. He was employed to assist in the erection of a building in New South Wales. He was injured in the course of that work. He later died in Victoria.

29. Starke J succinctly interpreted the scope of the Victorian workers' compensation legislation as follows, at 89:

Unless the Act otherwise provides the implication is that the accident
contemplated is an accident occurring within the territorial limits of
the State of Victoria and not one occurring outside those limits.
This is so because of the general principle that a State can legislate
effectively only for its own territory. On the other hand, an Act
might provide that every worker under a contract made within the State
or of which the proper law of the contract was that of the State or in
connection with a business localised in the State should be entitled
to receive compensation wheresoever the injury by accident occurred.
The constitutional validity of such an Act would not, I think, be open
to doubt, but the real meaning and construction of any Act depends
upon the language used by the legislative body.

30. That view represented the opinion of the Court.

31. The approach adopted in Mynott v Barnard (supra) was applied in Awdejew v Walkerden Bros (1958) 76 WN (NSW) 176. In the latter case, the worker was employed in Victoria to perform work in New South Wales. He was fatally injured whilst on his journey to work but before he left Victoria. A claim was made under the New South Wales Act. The "journey" provisions of the New South Wales Act were interpreted so as to refer only to journeys between a New South Wales place of abode and a New South Wales place of employment.

32. The need to provide extra-territorial cover to deal with such situations was subsequently accepted by most legislatures. For example, an amended provision of the Victorian Act was held to provide cover for a worker engaged in Victoria to fly an aircraft from England to Australia when that worker was killed in an air crash in France in the course of that employment: see Dodd v Executive Air Services Pty Limited (1975) VR 668.

33. Section 8(2) of the ACT Act includes "travelling" outside the Territory which would be within the scope of the Act if it had taken place within the Territory provided it is part of the "shortest convenient route" to the place of employment within the Territory.

34. Section 6(8) also provides for extra-territorial operation of the Act in certain circumstances. It deals with the Mynott v Barnard situation. The sub-section states:

Where an employer has a place of employment in the Territory or, is
for the time being present in the Territory, and there employs a
worker whose employment under a contract of service or apprenticeship
with that employer is not wholly carried out in the Territory and is
in part carried out in any State or in any other Territory, then, if
the worker, while in that State or other Territory, sustains personal
injury under circumstances which, had the injury been sustained in the
Territory, would entitle the worker to compensation in accordance with
this Act, the worker's employer shall, subject to this Act, be liable
to pay compensation in accordance with this Act as if the personal
injury had arisen out of or in the course of the worker's employment
in the Territory.

35. However, in the present case, the work activity undertaken in Queensland did not alter the date or place of the "injury" recognised for the purposes of the ACT Act.

36. Although the evidence did not focus on the issue, it seems more likely than not that, as at the date of her incapacity, the appellant had ceased to be employed within the Territory. Her employment in Queensland does not seem to have been:

... employment under a contract of service ... (which) is not wholly
carried out in the Territory and is in part carried out in any State
...

37. However it is unnecessary in this case to express a concluded view as s6(8) does not need to be invoked to found liability in the respondent under the ACT Act. That liability follows directly from the terms of ss7 and 9 of the ACT Act.

38. On the face of it, therefore, the respondent is liable to pay compensation to the appellant in accordance with the ACT Act and the findings made by Magistrate Ward unless that liability is extinguished or barred by law.

The right to compensation uner the Queensland Act
39. At the time of her application, the relevant workers' compensation legislation in Queensland was the Workers' Compensation Act 1916 (Qld) (the Queensland Act). That Act has since been repealed and replaced. That repeal does not, however, affect the issues relevant for the purpose of this appeal.

40. Section 8 of the Queensland Act provided that the liability to pay compensation under the provisions of the Act was that of the employer although the claim for payment was to be directed to the WC Board. Payment in respect of that liability was to be made out of the Workers' Compensation Fund administered by the WC Board.

41. Section 9(1) provided:

A worker who has received an injury arising out of or in the course of
his employment ... shall, subject to this Act, receive out of the
Workers' Compensation Fund compensation in accordance with this Act.

42. Section 9(2) imposed liability under the Queensland Act in respect of injury suffered outside the State of Queensland. It was in similar terms to s6(8) of the ACT Act.

43. The term "injury" was defined under s3(1) of the Queensland Act as:

... personal injury arising out of or in the course of employment, and
includes -
(a) a disease which is contracted in the course of the employment,
whether at or away from the place of employment, to which the
employment was a contributing factor; and
(b) the aggravation or acceleration of any disease where the
employment was a contributing factor to such aggravation or
acceleration.

44. At the time of the injury recognised for the purpose of the ACT Act, the appellant was not employed in the State of Queensland. Accordingly, s6(8) of the ACT Act did not apply to that injury. It is also apparent that the injury suffered in the Territory could not attract liability under s9(2) of the Queensland Act.

45. Section 9(2)(b) of the Queensland Act provided that if a worker had received compensation pursuant to s9(2), and then received compensation pursuant to the laws of another jurisdiction in respect of the same injury, any compensation which had been paid by the WC Board was recoverable from the worker.

46. Where a worker recovered damages from an employer in respect of the same injury as that entitling the worker to receive compensation under the Queensland Act, the damages were to be reduced by the amount of the compensation payable by the WC Board. That provision was made by s9A of the Queensland Act. It is doubtful whether s9A would apply to an award of damages made according to ACT law rather than Queensland law: see Mynott v Barnard and Stevens v Head [1993] HCA 19; (1993) 176 CLR 433. However, it is not necessary to consider that issue in these proceedings.

47. Until the determination by the O Board, the appellant had been paid compensation in apparent accordance with s14(1)(B)(a) of the Queensland Act, that is, "where total or partial incapacity results from the injury ...". Section 14(1)(B)(f) provided that such entitlement was to be terminated if a Medical Board, of which the O Board was one, determined that "the injury in question has resulted in a permanent partial disability" and a payment is then made in accordance with the "table of maims" set out in s14(1)(C)(l).

48. Medical Boards were constituted pursuant to s14C of the Queensland Act. Section 14C(10) entitled a worker to appear before a relevant Medical Board. Section 14C(11) provided that the Medical Board's decision was "final and conclusive".

49. The evidence before his Worship established that the liability of the respondent under the Queensland Act was finally determined by the payment to her of a sum calculated according to s14(1)(C)(l) thereof.

50. However, consistently with Mynott v Barnard, the Queensland Act did not purport to apply to, or to entitle the appellant to compensation for, the "injury" suffered in this Territory.

51. The term "injury" is differently defined by each Act. Under the ACT Act, the aggravation of the tenosynovitis in the State of Queensland was a continuation of the "disease" deemed to have been an injury in the Territory occurring on 3 August 1982. It may also be a separate "injury" being an aggravation of a pre-existing condition. Under the Queensland Act, the aggravation of the pre-existing tenosynovitis, found by the WC Board to have occurred on 29 January 1990, was an "injury" separate from that pre-existing condition. It was the only event or process to which the Queensland Act could have application.

52. In the Territory, compensation is payable if the worker is incapacitated for work "by the injury". Under the Queensland Act, compensation was payable in respect of an "incapacity" (presumably for work) which "results from the injury".

53. There are, therefore, two elements of the determination made by the WC Board. First is the finding as to an "injury". That was found to have occurred on 29 January 1990. Only the aggravation of a pre-existing condition occurring in the course of the appellant's employment in Queensland could have constituted that "injury". The second question was the nature and extent of the incapacity found to result from that injury and the amount of compensation payable in respect of it.

54. The WC Board's determination would be ultra vires if it had purported to determine what, if any, incapacity had been caused by the injury deemed to have occurred in this Territory on 3 August 1982. It had no jurisdiction to award compensation in respect of that injury.

55. It is likely that the incapacity which resulted from the appellant's activity in Queensland formed part, at least, of the incapacity resulting from the injury deemed to have been sustained in the Territory on 3 August 1982. However, the incapacity was not solely the result of the work activity in Queensland, it was also the result of the injury deemed to have occurred in this Territory. The whole of the appellant's work activity since 1982, as well, probably, of non-work activity since 1982, combined to result in the incapacity in question.

56. So long as the current incapacity was caused or contributed to by the compensable injury of 3 August 1982, the respondent is and remains liable to pay compensation in respect of that incapacity in accordance with the ACT Act. That is so whether or not that incapacity also gives rise to a claim for compensation under the Queensland Act.

57. A question then arises as to whether it is necessary to apportion the current incapacity between the different "injuries" recognised for the purposes of the ACT Act and of the Queensland Act.

58. An analogous issue was addressed in Bushby v Morris (1980) 28 ALR 611 (PC). The case involved an incapacity contributed to by two or more injuries sustained on different occasions whilst employed by different employers. The Privy Council concurred with the judgment of the Court of Appeal (NSW) that an award could be made for the full amount warranted by the worker's incapacity against each contributing employer. It was unnecessary to apportion the incapacity between the injuries giving rise to it. Only one award was to be made. The employers might, of course, wish to apportion liability to contribute to the award as between themselves. A fortiori, where separate injuries have occurred leading to incapacity arising from employment by the same employer, there can be an award under the ACT Act for the entire incapacity, even if the same incapacity is contributed to and compensable otherwise then under the ACT Act. There can also be an award for the entire incapacity under the Queensland Act. The avoidance of duplication can only be resolved by reference to the relevant provisions of the applicable legislation.

59. The determination made under the Queensland Act created a liability to pay a sum of money in respect of the incapacity as at 5 September 1990 arising out of the injury of 29 January 1990. That injury was an aggravation of the previous condition from which the plaintiff had suffered since 3 August 1982. Unless that aggravation could have been regarded as breaking the chain of causation which commenced with the deemed injury of 3 August 1982, the incapacity resulting from that aggravation would not thereby cease to be compensable under the ACT Act.

60. Apart from the impact of any findings implicit in the making of the determination under the Queensland Act, it is clear that the determination can be regarded as "compensation or any payment by way of compensation" independently of the ACT Act in respect of the deemed personal injury. The payments made pursuant to the O Board's determination can also be regarded as a "payment, allowance or benefit" to which "regard" is required to be had pursuant to para 2(b)(ii) of Schedule 1.

61. Section 23(1) and the following provisions of the ACT Act are clearly intended to prevent receipt of compensation from the employer by a worker both under the ACT Act and independently of it. It does not preclude the possibility of co-extensive liability. Such co-extensive liability would usually arise from a claim for damages for breach of contract or for negligence in respect of the injury and its consequences. There is no reason why it cannot arise under the laws of another Territory or of a State. Section 23(3) allows credit against damages awarded for amounts already paid for compensation by or on behalf of the employer.

62. That provision contrasts with legislation in some other jurisdictions which require the worker to elect between compensation under the relevant Workers' Compensation Act and recovery of money independently of that Act from the employer in respect of the injury.

63. Until 6 September 1962 when it was repealed, s23(2) of the ACT Act had imposed a 12 month time limit within which to commence proceedings for damages for injury in respect of which compensation had been paid. That provision has not been replaced. There is no bar contained in the ACT Act against proceeding both under the ACT Act and independently of it. Paragraph 2(b)(ii) of Schedule 1 gives effect to the terms of s23(1) by forbidding, not recovery of such compensation per se, but retention of both compensation under the ACT Act and a sum payable independently of the Act by the employer. The employer is not required to pay twice for the same injury whatever may be the source of the concurrent liability to the worker (save for the "make-up" payments referred to in paragraph 2(b)(ii) of Schedule 1 to the ACT Act).

64. Therefore, so far as the ACT Act is concerned, a Magistrate hearing this claim is required to assess compensation payable under the ACT Act allowing credit for any compensation paid pursuant to the Queensland Act. This interpretation of the ACT Act seems consistent with the approach taken by the High Court in Manser v Spry [1994] HCA 50; (1994) 68 ALJR 869.

65. Insofar as the Queensland Act is concerned then, to the extent that the incapacity Magistrate Ward found is co-extensive with the incapacity found by the O Board (and it does seem to be a lesser incapacity that, rightly or wrongly, was found), the payment made by the WC Board was subject to the provisions of s9(2)(b) of the Queensland Act. That is, of course, subject to the effect of the repeal of the Queensland Act. I do not decide whether para 2(b)(ii) of Schedule 1 of the ACT Act requires an award allowing credit for the sum already awarded or whether the award should be for the full sum that otherwise would be awarded but on condition that the sum already paid be refunded by the appellant to the WC Board. That is a matter the parties may wish to address.

Does the finding of permanent partial incapacity prevent a finding of total continuing incapacity?
66. It is possible that a finding of fact on an ultimate issue, such as incapacity, by a competent tribunal, will raise an issue estoppel. A question arises on this appeal as to whether the finding of the O Board as to the extent of the appellant's incapacity precluded any contrary finding by his Worship.

67. In GK Sanford Pty Ltd v Jansen [1992] FCA 236; (1992) 36 FCR 83, a decision that the happening of an event causing injury had not been established so as to give rise to a claim for damages was held to require a Workers' Compensation tribunal to determine adversely to the worker the issue as to whether there had been a compensable injury arising out of the same alleged event.

68. The finding in question in this case is as to incapacity arising from an injury. The incapacity to be assessed in the proceedings before Magistrate Ward was the incapacity as it existed at the date of his decision. That there had earlier been a permanent partial incapacity would not necessarily be inconsistent with there being a continuing total incapacity at the time of the application before Magistrate Ward. In any event, even if in fact it was or appeared to be inconsistent, the "injury" recognised by the ACT Act was a different "injury" than that recognised by the Queensland Act.

69. Further, the WC Board was not competent to rule on whether the injury predating the appellant's employment in Queensland had resulted in compensable incapacity. It could only determine the incapacity arising from the aggravation sustained in Queensland. The decision of the WC Board does not reveal whether the factual basis for the finding it made was the then extent of the whole incapacity or some contribution to the incapacity of which the appellant then complained or whether the incapacity had changed since the O Board's determination. However, that does not matter. The issue was different even if the incapacity was identical.

70. An alternative basis upon which the appellant's claim might be barred is if, in substance, it required the relitigation of previously determined issues. I referred to this principle recently in ANU v Suharso, unreported, Supreme Court, Australian Capital Territory, 19 January 1995. It requires a conclusion, based on the decision of the High Court in Walton v Gardiner [1992] HCA 12; (1993) 177 CLR 378, that the proceedings taken by the appellant amount to an abuse of process.

71. Given the constraints upon the jurisdiction of the WC Board to which I have referred, I do not consider that such a finding could or should be made.

Conclusion
72. It follows from the above that the determination of the WC Board does not prevent an award being made in favour of the appellant for such sum in excess of the sums already paid to her in respect of the injury deemed to have been sustained on 3 August 1982 as is warranted by the factual findings of Magistrate Ward.

73. The appeal is allowed. The decision appealed from is set aside. I grant leave to the appellant to bring in an award reflecting the terms of this decision which I will then make in favour of the appellant. I will also hear the parties as to costs.