Bonita May Whiteley-Bond & Andrew James Bond v Abletts Transport Pty Limited [2009] ACTSC 81 (15 July 2009)

Last Updated: 14 August 2009

BONITA MAY WHITELEY-BOND & ANOR v ABLETTS TRANSPORT PTY LIMITED
[2009] ACTSC 81 (15 July 2009)

ESTOPPEL – issue estoppel – action by widow on behalf of beneficiaries for damages arising out of husband’s death – previous proceedings in Workers Compensation Commission of New South Wales between same parties – different insurers involved – findings made by Commission as to relationship of family members to deceased and as to dependency – whether findings of Commission give rise to issue estoppel

Civil Law (Wrongs) Act 2002, Parts 3.1, 3.2, s 24, s 25
Fatal Accidents Act 1846 (United Kingdom)
Court Procedures Rules 2006, r1521, Division 2.15.3
Workers Compensation Act 1987 (NSW), s 2A, s 25,
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 4, s 105, s 352, s 353, s 368

Prof. H Luntz, Assessment of Damages for Personal Injury and Death, 4th Edition, Butterworths, 2002, section 9.2

Egri v DRG Australia Limited (1988) 19 NSWLR 600

No. SC 636 of 2005

Judge: Master Harper
Supreme Court of the ACT
Date: 15 July 2009

IN THE SUPREME COURT OF THE )
) No. SC 636 of 2005
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: BONITA MAY WHITELEY-BOND

First Plaintiff

ANDREW JAMES BOND

Second Plaintiff

AND: ABLETTS TRANSPORT PTY LIMITED

ACN 008 567 084

Defendant

ORDER

Judge: Master Harper
Date: 15 July 2009
Place: Canberra

THE COURT ORDERS:

1. That the plaintiff’s application in relation to issue estoppel be stood over to the hearing of the action.
2. That each party have liberty to apply on 2 days notice.

1. This is an action arising out of the death of the husband of the first plaintiff in a motor vehicle accident. Both plaintiffs claim damages for personal injury in the form of nervous shock. These are actions in negligence under the general law, with certain modifications under Part 3.2 of the Civil Law (Wrongs) Act 2002. In addition, the first plaintiff brings a claim on behalf of herself and her children under Part 3.1 of that Act, those statutory provisions being the present successor in this jurisdiction to the Fatal Accidents Act 1846 of the United Kingdom (Lord Campbell’s Act). Such an action was not known to the common law and had not previously been available. It is hence entirely a creature of statute, although the method of calculation and apportionment of damages has been greatly refined by case law over the years.
2. The action was listed for hearing before me on 15 June 2009, with an estimate of 3 days. By reason of other matters in my list, it was not reached until Wednesday 17 June. Counsel for the parties agreed that if I were to embark upon the hearing proper, there would be no prospect of completing it in the time available.
3. I was informed that the first plaintiff’s nervous shock claim had been settled, and I entered consent judgment in relation to that part of the action.
4. Counsel asked me to make use of the available time to hear and determine a pleading issue, the determination of which might shorten the ultimate hearing. Rule 1521 of the Court Procedures Rules 2006 allows the Court to decide a question separately from another question, before, at, or after the trial or continuation of the trial of the substantive proceeding. I propose to determine the question pursuant to Division 2.15.3 of the Rules, and to dispense to the extent necessary with the formal requirements of the Rules as to settlement of the question and directions hearings about it.
5. In its defence, the defendant has denied a number of assertions made in the Statement of Claim. The plaintiffs have delivered a reply in which they say that a number of the denied assertions have previously been determined in proceedings between the parties in the Workers Compensation Commission of New South Wales.
6. It is apparent from annexures to the reply that the Commission made a determination on 30 September 2003, effectively approving a settlement of the workers compensation claim by the family for an amount to be equally apportioned between the first and second plaintiff in the present action and two other children of the deceased and the first plaintiff. The present defendant was ordered to pay the costs of the applicants. It appears that there were two separate matters before the Commission, both dealt with in the same decision.
7. The determination was made by Ms Jennifer Scott, an arbitrator with the Commission. Ms Scott gave reasons for her decision, setting out a brief summary of the factual background, the issues between the parties, and the applicable provisions of the relevant NSW workers’ compensation legislation. She listed a considerable amount of documentary evidence, including the birth certificates of the deceased and each of the applicants, the death certificate of the deceased, the marriage certificate, statements of each of the applicants, and medical reports. She noted that each of the applicants had made a claim of total dependency on the deceased pursuant to section 25 of the Workers Compensation Act 1987 (NSW). In general terms, that section provides that where death results from an injury, the employer is liable to pay compensation up to a specified maximum. The amount of compensation “is to be apportioned among any dependants who are wholly or partly dependent for support on the worker. . .”.
8. Section 2A of the Workers Compensation Act provides that it is to be construed with, and as if it formed part of, the Workplace Injury Management and Workers Compensation Act 1998 (NSW). The 1998 Act is to prevail in the event of an inconsistency.
9. The 1998 Act includes in section 4 a definition:
dependants of a worker means such of the members of the worker’s family as were wholly or in part dependent for support on the worker at the time of the worker’s death, or would but for the incapacity due to the injury have been so dependent, and includes:
(a) a person so dependent to whom the worker stands in the place of a parent or a person so dependent who stands in place of a parent to the worker, and
(b) a divorced spouse of the worker so dependent, and
(c) a person so dependent who:
(i) in relation to an injury received before the commencement of Schedule 7 to the Workers Compensation Legislation Amendment (Dust Diseases and Other Matters) Act 1998 - although not legally married to the worker, lived with the worker as the worker’s husband or wife on a permanent and genuine domestic basis, or
(ii) in relation to an injury received after that commencement - is the other party to a de facto relationship with the worker.
10. At paragraph 21 and following of her reasons, the arbitrator said:
21. Bonita May Whiteley-Bond was the spouse of the diseased worker and was totally dependent on the deceased worker for financial support as a result of her medical condition.
22. Bonita May Whiteley-Bond was personally dependent on the deceased worker due to these medical problems.
23. Andrew James Bond is the son of the deceased worker. I find that as he is suffering from an illness, namely depression, that he was financially dependent upon the deceased worker.
24. Matthew John Bond is the son of the deceased worker. I find that due to his medical condition (injury to left ankle and anxiety/stress condition) that he was financially dependent upon the deceased worker.
25. Kylie-Jane Mary Bond is the daughter of the deceased worker. I find that although she is currently in part-time employment, she is financially dependent upon the deceased worker.
26. Apart from the above four dependents, there are no other dependents of the deceased worker.
Summary
27. In summary the resolution of the issues in dispute are as follows:
• on 13 February 2003, William John Bond was involved in a motor vehicle accident resulting in his death and arising out of or in the course of his employment as a truck driver with Abletts Transport Pty Limited.
• The following person/s were dependent on the deceased at the time of death: Bonita May Whiteley-Bond, Andrew James Bond, Matthew John Bond and Kylie-Jane Mary Bond.
Decision
For the reasons set out in this statement the decision in this matter is:
28. The amount agreed to by the parties, namely the amount of $275,350.00, be apportioned equally among the four dependents.
29. The sum of $275,350.00 be paid out to one of the dependents, Bonita May Whiteley-Bond, in accordance with the directions signed by the other three dependents, Andrew James Bond, Matthew John Bond and Kylie-Jane Mary Bond and the direction signed by Bonita May Whiteley-Bond dated 7 August 2003.
30. The respondent pay the applicant’s costs as agreed or assessed
(The spelling, grammar and punctuation are those of the Commission).
11. The Commission was established by the 1998 Act. Under section 105 of that Act, the Commission has exclusive jurisdiction to hear and determine all matters arising under both the 1987 Act and the 1998 Act, with limited exceptions (not including the claim by the Bond family).
12. Section 368 of the 1998 Act provides that the Commission consists of a President (who must be a judge), two Deputy Presidents, who must be qualified for judicial appointment, a Registrar and a number of arbitrators, each of whom must be an Australian lawyer or a person with qualifications, skills or experience determined by the responsible Minister. Whilst the Commission is a tribunal rather than a court, an appeal from a decision of an arbitrator lies by leave to a presidential member and an appeal on a question of law is available from a presidential member to the Court of Appeal of the Supreme Court of New South Wales (sections 352, 353).
13. In respect of the findings by the Commission, counsel for the plaintiff submits that these give rise to issues estoppel which the defendant cannot litigate again. Counsel relied upon the decision of the New South Wales Court of Appeal in Egri v DRG Australia Limited (1988) 19 NSWLR 600 (Mahoney, McHugh and Clarke JJA). To quote McHugh JA at 603:
A final decision, once given by a competent tribunal, forever binds the parties and all those who claim through them in respect of any issue of fact or law which was legally indispensible to that decision: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531-532 and Brewer v Brewer [1953] HCA 19; (1953) 88 CLR 1 at 15-16.
14. The court was dealing in Egri with a finding of the Workers Compensation Commission of NSW, a predecessor to the Commission which dealt with the Bond family application. The earlier Commission was later reconstituted as a court but had been a tribunal rather than a court at the relevant time.
15. I am satisfied that the fact that the decision by the arbitrator in the present matter was made by a tribunal rather than a court does not prevent the decision operating to create an issue estoppel. I am further satisfied that each of the arbitrator’s findings which I have set out was legally indispensible to her decision.
16. I have given some consideration to whether there may be a difference in the meaning of the words “dependent” and “dependant” for NSW workers’ compensation purposes, and the meaning of those words in the context of a claim under the Civil Law (Wrongs) Act.
17. Interestingly Part 3.1 of the latter Act does not use either word. The Act provides in section 24 that where a death is tortiously caused, and where the deceased would have been entitled to recover damages for personal injury if death had not resulted, an action for damages lies despite the death. Section 25 authorises the court to award to the people for whose benefit the action is brought, called the beneficiaries, the damages that the court considers to be proportional to the damage to them resulting from the death. The damages are to be divided between the beneficiaries as the court decides.
18. The broad power conferred on the Court by the Act in relation to claims by the family of the deceased person is therefore circumscribed almost entirely by case law. A general summary of the principles to be applied is set out by Professor Harold Luntz in Assessment of Damages for Personal Injury and Death, 4th edition (Butterworths, 2002) in section 9.2 at page 485 and following. It is apparent from Professor Luntz’s commentary that the words “dependent” and “dependant” have been used extensively in the decided cases. A question remains as to whether those words may have some different meaning in the NSW workers’ compensation legislation. This is an issue upon which I would be assisted by submissions from counsel.
19. The heading to the certificate of determination identifies Royal & Sun Alliance as the insurer of the respondent (the present defendant). I accept that Royal & Sun Alliance was the NSW workers’ compensation insurer liable to make the payment to the family ordered by the arbitrator. I am informed that the defendant is indemnified in relation to the present action by the third party insurer of the truck the plaintiff was driving at the time of the collision, NRMA Insurance. Despite this, the respondent before the Commission and the defendant in the present proceedings is one and the same, and cannot escape a finding of issue estoppel because in the earlier proceedings it was indemnified by a different insurer.
20. I am satisfied that the defendant is estopped from denying, or putting in issue, the findings contained in paragraphs 21 to 27 inclusive of the reasons for decision of the arbitrator in the Workers Compensation Commission of New South Wales.
21. I add as a proviso that this leaves open to the defendant the submission that the expressions “totally dependent”, “personally dependent”, “financially dependent” and “dependent” should be given a meaning, in the light of NSW workers’ compensation legislation, different to their ordinary and natural meaning.
22. I shall provide an opportunity for counsel to make further submission on that issue, and as to the orders which should flow from these reasons.
23. I will grant liberty to apply in case the parties wish to relist the matter for further submissions prior to the hearing of the action. Subject to that leave, I shall stand the application over to the hearing of the action.

I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 15 July 2009

Counsel for the plaintiff: FJ Purnell SC
Solicitors for the plaintiff: Blumers Personal Injury Lawyers
Counsel for the defendant: K Pryde
Solicitors for the defendant: Slater and Gordon Lawyers
Date of hearing: 17 June 2009
Date of judgment: 15 July 2009