Serious injury and issue estoppel

Vic Parliament rides to the rescue to save the VWA's bacon ... No more issue estoppels for you ... Juries to be mushroomed ... Barry Lane reports on the latest from accident compo world

The common law has long recognised that it's a sensible idea for both litigants and the system to limit litigation by precluding parties from litigating suits or issues which have already been determined.

As Dixon said in Blair v Curran:

"A judicial determination directly involving an issue of fact or law disposes once and for all of the issue, so that it cannot be raised between the same parties or their privies."

Well, not if you're the Victorian WorkCover Authority it doesn't. 

Shortly after midnight on Friday, December 11, 1999, the servo where Patricia Norris, then aged 50, worked as an attendant was the subject of a violent robbery by a man armed with a gun and wearing a gorilla mask. 

During the robbery the bandit discharged his firearm a number of times. 

For a fuller description of the personal circumstances of Ms Norris and of the robbery see Norris v Brumar (Victoria) Pty Ltd (No 2). 

Ms Norris later claimed that the robbery caused her post traumatic stress disorder and severe depression.

She commenced proceedings against her employer for compensation, but before she could progress her common law action she first had to establish that she had a "serious injury" pursuant to s.134AB of the Accident Compensation Act 1985.

It's apparent that the VWA didn't accept that Ms Norris was suffering from a "serious injury" because she was forced to apply for leave pursuant to s.134AB(16)(b).

That application was heard by Judge Barry Dove in the County Court, who found in Ms Norris' favour on February 15, 2006.

In so finding, HH was satisfied that:

"The experience the plaintiff suffered when she was the victim of the hold-up in December 1999 has left her with profound psychological injuries, which to my mind are permanent in nature. I am satisfied that she has a deep and persistent post-traumatic stress disorder. She suffers from anxiety, depression, insecurity, and has panic attacks. Her symptoms are deeply ingrained and have stabilised. She is dependant upon considerable medication. I believe it is unlikely that she will show any improvement in her condition, having regard to the period of time in which it has been entrenched in her. 

The severity of her condition is impressively stated in the reports of Dr Sutcliffe, Dr Kruse, Dr Kaplan, Dr Cole, and Ms Mossop. Indeed, confirmation that her condition is both severe and permanent is to be obtained in reports obtained by the defendant from Drs. Cole, Entwisle and Mendelson."

HH was persuaded that Ms Norris had proved that the pain and suffering and loss of earning capacity consequences she suffered from the hold-up satisfied the statutory test of a "permanent severe mental or permanent severe behavioural disturbance or disorder".

In May 2009 - one never wants to rush these things - Ms Norris' common law action came on for hearing before Justice David Beach and a jury in the Supreme Court.

The VWA obligingly admitted liability on the first day of trial so the hearing was only to assess damages.

In the course of the trial, HH ruled that:

"The trial of this proceeding commenced on 26 May 2009 before a jury. However, during the course of the trial it became apparent that the plaintiff had obtained the leave of the County Court pursuant to s.134AB(16)(b) to commence this proceeding. 

After hearing argument, I ruled that the granting of leave by the County Court created an estoppel in favour of the plaintiff on the issue of 'serious injury'.

Specifically, I ruled that the defendant was estopped from denying that as at July 2005 [when Judge Dove completed hearing Ms Norris' 'serious injury' application] the plaintiff suffered from a permanent severe mental or permanent severe behavioural disturbance or disorder. 

It was severe by reference to the consequences to the plaintiff of the mental or behavioural disturbance or disorder with respect to pain and suffering and loss of earning capacity - when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders.

Further, it was severe because the pain and suffering consequences and loss of earning capacity consequences when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders were more than serious - to the extent of being severe. This was permanent as at July 2005 - at least in the sense of being 'likely to last for the foreseeable future'."

Not surprisingly, the VWA was having none of this and appealed.

On August 25 this year, the Court of Appeal unanimously dismissed VWA's appeal.

Yikes, what should a model litigant do next? Why, crank up one's pals in Treasury to suppress this contagion before it spreads.

Fortunately, Parliament came to the rescue when it enacted the Accident Compensation Amendment Act 2010, s.57(3) of which inserted ss.(19A) into s.134AB. That provision provides:

"Any finding made on an application for leave to bring proceedings in respect of the injury does not give rise to an issue estoppel in any proceedings for the recovery of damages brought in accordance with this section which is heard and determined on and from the commencement of section 57(3) of the Accident Compensation Amendment Act 2010."

As from December 10, 2009, no more of that issue estoppel silliness in common law trials thank you very much.

And it looks like the VWA has got a taste for this policy of overriding issue estoppels because in the new provisions of s.242AA and following, which create an offence for an employer who engages in "discriminatory conduct" for a "prohibited reason" against an employee, a conviction for an offence and an order for damages (for "hurt and humiliation" and loss of earnings) made by a court will not create an issue estoppel against the VWA in a "serious injury" application or a common law claim, nor will successful separate civil proceedings under s.242AD – see s.242AB(3).

When the new provisions are added to the existing provisions of s.134AB(23), which prohibit a jury in a common law proceeding from being informed:

(a) of the monetary thresholds and statutory maximums specified by or under subsection (22); or

(b) that any injury in respect of which the proceeding has been brought has been deemed, found, or required to be found, to be a serious injury; or

(c) that the Authority or self-insurer has been satisfied that the injury is a serious injury; or

(d) that the Authority or self-insurer has issued a certificate under subsection (16)(a), 

it all gives the VWA a pretty free hand to keep juries in "mushroom country" (in the dark and fed on bovine excrement) but it doesn't do much for plaintiffs or the long-suffering taxpayer.

Maybe juries will outsmart them all as the former UK DPP, Sir Ken Macdonald, seems to think.