Findings made in workers compensation jurisdiction do not give rise to an issue estoppel in the compulsory third party (CTP) jurisdiction because the parties will ordinarily be different.
On 11 October 2011, Nathan Spratt (the claimant), an employee of Perilya Broken Hill Limited (the employer), was injured in an attempt to straighten the bull bar on a vehicle. The vehicle was being driven against a vertical post and the claimant was holding a block of wood between the two. He was momentarily distracted and his right hand was crushed between the vehicle and the block.
The vehicle was being driven by another employee, Tony Rowe (the insured).
The claimant made a claim for lump sum compensation under s 66 of the Workers Compensation Act 1987 (NSW). On 4 May 2015, a Workers Compensation Commission arbitrator made a finding that the work accident caused an injury to the claimant’s cervical spine.
The claimant also made a CTP claim arising from the same accident. Contrary to the finding by the Workers Compensation Commission Arbitrator (the Arbitrator) however, the Medical Assessment Service (MAS) Assessor found that the claimant’s cervical spine injury was not caused by the accident.
The claimant sought a review of the MAS Assessor’s decision on the grounds that an issue estoppel arose between the parties and that the MAS Assessor was not permitted to make a causation finding contrary to the earlier finding by the Arbitrator.
The Proper Officer of the MAS dismissed the claimant’s application for review and determined that the MAS Assessor was correct in questioning whether the claimant’s cervical spine injuries were caused by the subject accident.
The claimant subsequently made an application under s 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW) (the MACA) for the District Court of New South Wales to refer the dispute back to the MAS for further assessment. His Honour Judge Bozic SC refused the claimant’s application on the basis that “there is no point in seeking the view of a medical assessor on a legal issue”. The claimant appealed this decision.
Whether there was an issue estoppel?
It was common ground between the parties that an issue estoppel may arise in a motor accident damages claim as a result of findings made in workers compensation proceedings between the same parties.
In delivering the lead judgment, Leeming JA noted that in Kuligowski v Metrobus,2 the High Court of Australia applied the requirements stated by Lord Guest in Carl Zeiss Stifung v Rayner & Keeler Ltd (No 2)3 in applying the doctrine of issue estoppel:
“(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same as the parties to the proceedings in which the estoppel is raised or their privies.”4
His Honour accepted that the claimant’s application satisfied the first and second requirement. In relation to the third requirement, however, his Honour noted that the pleadings in the CTP claim named the insured driver as the first defendant and the employer as the second defendant. The outcome of the CTP claim turned on whether or not the insured breached the duty of care he owed the claimant.
His Honour held that no issue estoppel arose because the insured was not a party to the workers compensation proceedings and was not bound by the causation finding made by the Arbitrator.5
Whether any issue estoppel as to causation is inconsistent with the MACA?
The Court of Appeal also held that the MAS Assessor was not bound to apply what had been determined by the Arbitrator.
The claimant made a submission, based on cl 1.7 of the Motor Accidents Authority’s Permanent Impairment Guidelines (the Guidelines), which states:
“An assessment of permanent impairment is as prescribed under s 58 (1)(d) of the Motor Accidents Compensation Act 1999 (NSW). The assessment should determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the claimant’s symptoms and impairment are related to the accident in question is therefore implied in all such assessments. Assessors should be aware of the relevant provisions of the AMA 4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.”
His Honour noted the following:
The Court of Appeal, accordingly, rejected the claimant’s submission that the MAS Assessor was bound to apply what had been determined by the Arbitrator.
Furthermore, his Honour held that even if there were an issue estoppel, the MACA makes it clear that primacy is to be given to the determination of a medical assessor.
In this case, the Court of Appeal confirmed that a MAS assessor is not bound by the determination of the Workers Compensation Commission on issues such as causation. It follows that Claims Assessment and Resolution Service (CARS) assessors are also free to make findings which may contradict what has already been found in the workers compensation jurisdiction.
While insurers should have regard to what has occurred in a claimant’s concurrent workers compensation claim – and CARS may well give weight to the findings made by a Workers Compensation Commission arbitrator – no issue estoppel arises.