Transcript of Proceedings

1 2IN THE MAGISTRATES' COURT OF VICTORIA AT MELBOURNE 3 4 5 6 No. T00942449 7 8 9B E T W E E N 10 11DAVID SPRECKLEY 12 Plaintiff 13- and - 14BIAZAN PTY LTD 15 Defendant 16 17 18 19HEARING 26 & 27 October 2006 20D E C I S I O N: 14 November 2006 21Catchwords: Consent Orders Dismissing Claim; Further Claim 22made; 23 Estoppel; Res Judicata; Evidence required to bring 24 further claim. 25 26MR S. GARNETT, MAGISTRATE 27 28MS A. MALPAS appeared on behalf of the Plaintiff. 29 Instructed by Mulcahy Mendelson Round & Darling

30MR P. KOZICKI appeared on behalf of the Defendant. 31 Instructed by Dibbs Abbott Stillman

1.:JAG T1A DISCUSSION1 2Garnett 1(DECISION FOLLOWS) 2D E C I S I O N 3HIS HONOUR: This is a claim for weekly payments of 4 compensation pursuant to the Accident Compensation Act 5 1985 from 26 November 2004 to date and continuing on the 6 grounds that the plaintiff has no current work capacity 7 which is likely to continue indefinitely. The claim for 8 an increase in the level of weekly payments for the 9 period 25 March 2002 to 5 March 2003 was abandoned at the 10 commencement of the hearing. 11 It is not in dispute between the parties that in 12 proceedings RO2664999 (“the earlier proceedings”) on 9 13 November 2004 in which the Plaintiff and Defendant were 14 the same as in these proceedings, Consent Orders (“the 15 Consent Orders”) were made as follows; 16 17 "(1) Plaintiff to pay defendant's costs fixed 18 in the sum of $1. 19 20 (2) Proceeding otherwise dismissed." 21 In “the earlier proceedings” the plaintiff claimed 22 weekly payments of compensation at the rate appropriate 23 for no current work capacity from 5 March 2003. The 24 above orders were subsequent to the plaintiff giving 25 evidence-in-chief and being subject to cross-examination. 26 The parties agree that the plaintiff sustained injuries 27 to his right arm/scaphoid-reflex sympathetic dystrophy- 28 anxiety/depression in October 2000 during the course of 29 his employment with the defendant (trading as Harvey 30 Norman). His claim was accepted and he received weekly 31 payments in accordance with the Act until they were 32 terminated on or about 5 March 2003 following a notice of 33 termination dated 31 January 2003.

1.:JAG T1A DISCUSSION2 2Garnett 1 Subsequent to the Consent Order made on 2 9 November 2004 in “the earlier proceedings”, the 3 plaintiff made a further claim for weekly payments in 4 January 2005 claiming weekly payments of compensation 5 from 25 November 2004 which was rejected by the defendant 6 on 28 February 2005. 7 The defendant denies liability in this matter on the 8 following grounds; 9 (1) The plaintiff is estopped from bringing these 10 proceedings by reason of the Consent Orders dated 9 11 November 2004 in “the earlier proceedings”. 12 (2) If no estoppel or res judicata applies, the 13 plaintiff has a current work capacity and is not entitled 14 to any further weekly payments. 15 If issue estoppel or res judicata apply there is no need 16 for me to address the issue of the plaintiff's capacity 17 for work. 18 It is well established that by the Consent Orders the 19 parties therein requested the court to give judicial 20 effect to that to which they have agreed. Therefore, the 21 making of a judicial order converts the agreement between 22 the parties into a judicial decision and one which can 23 support a plea of res judicata. 24 In addition to raising a plea of res judicata, a Consent 25 Order may also raise an issue estoppel in the appropriate 26 circumstances. (See Chamberlain v. Deputy Commissioner 27 of Taxation 164 CLR502, Perkins v. GIO Worker's 28 Compensation (Victoria) Ltd Judge Higgins unreported 12 29 December 1995, AMP Worker's Compensation Services Ltd v. 30 Chalkley 1998 VSC29, Hall v. HIH Winterthur Worker's 31 Compensation (Vic) Ltd Judge Rendit unreported decision

1.:JAG T1A DISCUSSION3 2Garnett 1 delivered 5 October 1998 and Cihan v. South Pacific 2 Dunlop Tyres Magistrate Wright dated 25 January 2005 and 3 19 May 2005). 4 It is clear from the decisions referred to that in the 5 current proceedings issue estoppel or res judicata 6 applies as at 9 November 2004 and therefore the onus is 7 on the plaintiff (as conceded by Ms Malpas) to prove a 8 change in the plaintiff's condition since that date in 9 order to have an entitlement to further weekly payments. 10 In Chalkley, McDonald J held that; 11 12 "A finding that a person is totally and permanently 13 incapacitated at a particular time does not mean 14 that that person will in fact be totally 15 incapacitated in the future. A number of factors 16 subsequent to such a finding such as an 'Unexpected 17 improvement in the person's condition, advances in 18 medical science, the achievement of fresh skills, or 19 even the improvement in the labour market' or the 20 opportunity to learn fresh skills from participating 21 in an approved 'Occupation or rehabilitation 22 service' may bring an end to the incapacity or 23 reduce it. The issue of a worker's incapacity and 24 whether it is total at a particular time or whether 25 it is total and permanent at a particular time may 26 well vary as a fact from time to time. The finding 27 by the court on 30 November 1994 that Chalkley was 28 totally and permanently incapacitated did not give 29 rise to an estoppel preventing the appellant from 30 raising in subsequent proceedings between it and 31 Chalkley the issue, that at a time subsequent to the 32 finding of the court, that Chalkley was then not 33 totally incapacitated or not totally and permanently 34 incapacitated. The finding that as at 30 November 35 1994 that Chalkley was totally and permanently 36 incapacitated was no more than a finding that it was 37 more likely than not that such incapacity would 38 persist in the future but it was not determinative 39 of whether such incapacity did in fact persist in 40 the future." 41 In Hall, Judge Rendit stated; 42 43 "On the other hand, if it were demonstrated that 44 there had been a change in the plaintiff's condition 45 since the consent judgment, such as the presence of 46 greater movement of the parts of the body affected 47 or the plaintiff says that she has improved and can 1.:JAG T1A DISCUSSION4 2Garnett 1 do more and has less pain or that the defendant has 2 surveillance film taken subsequently which 3 demonstrates a far greater range than movement than 4 the plaintiff said she had at the time of the 5 earlier judicial pronouncement, then a finding that 6 the plaintiff no longer had a serious injury would 7 not be contradicting the earlier judgment and the 8 two judgments could stand alongside each other and 9 not be in conflict." 10 In Cihan (delivered 19 May 2005), Magistrate Wright held 11 that it was incumbent on the plaintiff to establish some 12 change in the circumstances which would justify the 13 bringing of new proceedings. In that case he held; 14 15 "Those relevant opinions show very little, if any, 16 change in the plaintiff's condition since about 17 September 1996, let alone since July 2003." (The 18 date the County Court Consent Orders were made.) 19 In the present case, evidence was given by the plaintiff, 20 Mr Berger (treating specialist) and Dr Wallin who 21 examined the plaintiff for medico legal purposes on 10 22 October 2006. 23 The plaintiff gave evidence deatailing his medical 24 treatment pre-and-post 9 November 2004. He confirmed 25 that prior to the relevant date he had undergone surgery 26 in 2001 for a fractured right scaphoid by Mr Tang with a 27 further bone graft procedure being performed on 20 June 28 2003 by Mr Berger. 29 He gave evidence that his right wrist was painful and 30 that apart from a trial return to work in 2003 he had 31 remained incapacitated for employment. He also gave 32 evidence that his condition had not improved since 9 33 November 2004 apart from temporary periods following the 34 administration of stellate ganglion blocks and more 35 recently kentamine infusions. 36 Of importance was his evidence that essentially his 37 condition was the same as it had been for the past five

1.:JAG T1A DISCUSSION5 2Garnett 1 to six years. 2 Under cross-examination the plaintiff gave evidence that 3 he initially thought the previous proceedings were 4 adjourned rather than dismissed. In my opinion his 5 "understanding" of what occurred on the 9 November 2004 6 is not relevant to these proceedings and the issues to be 7 determined. 8 Mr Berger gave evidence and confirmed the contents 9 of the 13 letters/reports tendered in evidence. He 10 confirmed details of the plaintiff's medical procedures 11 which included the bone graft surgery to the right 12 scaphoid in 2001, X-ray confirmation on the 13 11 February 2003 which demonstrated a non united scaphoid 14 fracture, a repeat bone graft performed by him on 20 June 15 2003 with subsequent X-rays demonstrating that the 16 fracture had united. 17 In his report to the plaintiff's solicitors dated 18 18 September 2004 he made a provisional diagnosis of 19 sympathetic dystrophy on the basis of his examination of 20 the plaintiff on 9 September 2004 which he thought 21 unusual. He was unable at that stage to give an accurate 22 estimate of the plaintiff's prognosis until a firm 23 diagnosis was made. 24 On 30 September 2004 he wrote to QBE Mercantile Mutual 25 (the relevant authorised insurer) requesting that it 26 accept liability for a series of stellate ganglion blocks 27 which were subsequently performed on 25 November 2004 28 (with the aim to anaesthetise the sympathetic nerves 29 providing pain relief). Mr Berger confirmed that the 30 plaintiff was much better following the blocks and had 31 good movement in his wrist as at 9 December 2004.

1.:JAG T1A DISCUSSION6 2Garnett 1 By June 2006 Mr Berger reported that the plaintiff was 2 still suffering from symptoms of sympathetic dystrophy 3 and that the plaintiff had reported to him that his pain 4 was back to where it was prior to the stellate ganglion 5 block. In 2006 6 Mr Berger referred the plaintiff to Dr Bruce Kinloch, 7 pain management consultant. 8 In essence Mr Berger confirmed his diagnosis of 9 sympathetic dystrophy or chronic regional pain syndrome 10 Type 1 and that the stellate ganglion block performed on 11 25 November 2004 confirmed this diagnosis and gave the 12 plaintiff temporary relief. Mr Berger confirmed under 13 cross-examination that at no stage has he found objective 14 clinical findings to support the diagnosis. 15 Dr Wallin also gave evidence and his report dated 16 10 October 2006 was tendered. Dr Wallin diagnosed the 17 plaintiff's condition as chronic regional pain syndrome 18 Type 1 (formerly referred to as “RSD”) and gave evidence 19 that the plaintiff has had the condition for 20 approximately six years and he could not determine how 21 long it would last, nor did he find on examination any 22 objective clinical signs of the condition. The plaintiff 23 indicated to DR Wallin on 10 October 2006 that he had 24 experienced only marginal improvement over the last 25 12 months. Much of Dr Wallin's evidence related to the 26 plaintiff's work capacity or incapacity. 27 The defendant did not call any evidence. After being 28 called upon Counsel for the defendant admitted that the 29 plaintiff had been examined on its behalf by Mr Buzzard 30 on 1 November 2001, 17 January 2006 and 26 July 2006 and 31 Mr Stapleton on 3 June 2004 and 24 July 2006. The

1.:JAG T1A DISCUSSION7 2Garnett 1 appropriate inference was drawn having regard to the 2 principles in Jones v. Dunkel (1959) 101 CLR 298. 3 However, for the reasons to be given, this failure by the 4 defendant does not alter my decision in relation to the 5 issues in dispute. 6 The central issue to be determined is what, if any, 7 change in the plaintiff's condition has occurred since 8 the “Consent Orders”. In Perkins, His Honour Judge 9 Higgins said; 10 11 "If the worker's condition deteriorated or if the 12 worker underwent operative treatment, a further 13 claim for weekly payments at the rate appropriate 14 for total incapacity would not be barred". 15 In Hall, Judge Rendit said; 16 17 "If it were demonstrated that there had been a 18 change in the plaintiff's condition ....". 19 In Cihan, Magistrate Wright said; 20 21 "Some change in circumstances which would justify 22 the bringing of new proceedings". 23 Ms Malpas contended on behalf of the plaintiff that it 24 was sufficient that the change in circumstances necessary 25 to enable the plaintiff to bring these proceedings was 26 that the provisional diagnosis of sympathetic dystrophy 27 made before 9 November 2004 was confirmed by the stellate 28 ganglion blocks performed on 29 25 November 2004. 30 In my opinion the change in circumstances necessarily 31 requires more than a confirmation of a provisional 32 diagnosis and evidence of a demonstrable deterioration of 33 a worker's condition or surgery.

34 The plaintiff has failed to satisfy me that there has 35 been any relevant change in his condition sufficient to 36 establish an entitlement to further weekly payments.

1.:JAG T1A DISCUSSION8 2Garnett 1 For these reasons I am not required to determine the 2 issue regarding the plaintiff's capacity for employment 3 and I dismiss the application. 4 - - - 5

1.:JAG T1A DISCUSSION9 2Garnett