Maurice Blackburn Cashman v Brown [2011] HCA 22

HIGH COURT OF AUSTRALIA

FRENCH CJ,

HAYNE, CRENNAN, KIEFEL AND BELL JJ

MAURICE BLACKBURN CASHMAN APPELLANT

AND

FIONA HELEN BROWN RESPONDENT

Maurice Blackburn Cashman v Brown [2011] HCA 22

22 June 2011

M176/2010

ORDER

1. Appeal allowed.

2. Set aside so much of the order of the Court of Appeal of the Supreme Court of Victoria made on 25 August 2010 as answered the questions reserved for its opinion and in place thereof order that the questions reserved be answered as follows:

Question 1: Do any, and if so which, of the estoppels pleaded in paragraph 1A(i) of the plaintiff's amended reply to amended defence arise?

Answer: No.

Question 2: Is this honourable court obliged to accept as final and conclusive in any trial of this action, any, and if so which, of the matters pleaded by the plaintiff at paragraph 1B(a) and (b) of her amended reply to amended defence?

Answer: No.

Question 3: Is the defendant precluded from acting in any, and if so which, of the ways claimed by the plaintiff in paragraph 1B(c) of her amended reply to amended defence?

Answer: No.

3. The appellant pay the respondent's costs of the appeal to this Court.

On appeal from the Supreme Court of Victoria

Representation

M F Wheelahan SC with S A O'Meara for the appellant (instructed by Minter Ellison)

P W Tree SC with S R McCredie for the respondent (instructed by Lennon Mazzeo)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Maurice Blackburn Cashman v Brown

Torts – Negligence – Applicability and effect of legislation – Plaintiff alleged she had suffered injury including psychiatric injury as result of employer's negligence – Plaintiff made claim against employer pursuant to s 98C of Accident Compensation Act 1985 (Vic) ("Act") for compensation for non-economic loss – Pursuant to s 104B(9) of Act, Victorian WorkCover Authority referred questions to Medical Panel about extent of plaintiff's impairment – As result of Medical Panel finding, plaintiff deemed to have a "serious injury" for purposes of Act – As entitled under s 134AB(2) of Act, plaintiff commenced common law proceedings against employer for damages – Section 68(4) of Act provided that "[f]or the purposes of determining any question or matter", opinion of Medical Panel was to be applied by "any court, body or person" – In pleadings, employer denied plaintiff had suffered injury, loss and damage – Whether employer precluded by operation of Act from making that and other contentions in evidence or argument – Whether employer so precluded as a matter of issue estoppel.