AMP WORKERS COMPENSATION SERVICES (NSW) LID v WILLIAMS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE, BEAZLEY and STEIN JJA 4 September 1997, 4 September 1997 [1997] NSWCA 19 No question of principle Cole JA The respondent, who suffered from a back condition, aggravated that condition on two separate occasions whilst travelling to work. She made a journey claim against her employer pursuant to the Workers Compensation Act 1987 in respect of each aggravation. Each claim, and associated medical expenses, was paid by her employer who was reimbursed by its workers compensation insurer, the appellant. Subsequently the respondent commenced proceedings in negligence against two different third party insurers in respect of the two motor vehicle accidents causing the aggravation of the back condition. The two claims were dealt with together at a pre-trial conference on 5 December 1995. Lawyers for the respondent, and the two motor vehicle insurers agreed that the sum likely to be awarded to her was within a particular range. The matter was adjourned until 14 December 1995 to enable the insurers to agree upon proportions which each would meet of any settlement, or verdict, and also to enable the parties to the litigation to determine the amount repayable by the respondent to the workers compensation insurer, being the apepllants, in accordance with s151Z Workers Compensation Act 1987. The respondent was unaware of the total amount received by her by way of workers compensation and associated payments in respect of both workers compensation claims. Her solicitior's secretary was instructed to find out the "payback figure" for the two accidents. She telephoned the appellant's office and said: "T am ringing in connection with our client Margot Williams who was involved in two motor vehicle accidents. Can I please have the total payout figures for both claims as she has an informal pre-trial conference on 14 December 1995." The unidentified officer of the appellant responded "Yes, certainly may I have the claim numbers". The secretary responded: "All [have here is a letter and list of payments from you with the claim number E/312280-D." The appellant's officer responded: "The total workers compensation payback is $48,661.27." The respondent was accordingly informed of that payout figure. After negotiations she agreed to settle her two motor vehicles claims for $200,000 signing an authority which stated that: "Workers compensation payments will total $49,000 to $50,000." The authority stated that after deduction of costs and disbursements she would receive "no less than $125,000". The rounding of the workers compensation payback figure was due to an unclarified medical bill. 2 UNREPORTED JUDGMENTS The information given by the appellant to the respondent's solicitors was incorrect and represented the payback on one workers compensation claim only. The second claim attracted a payback of $36,324.08. The respondent said that she would not have settled her claim for $200,000 had she known the correct payback figure. She sought a declaration that the appellant was not entitled to recover from her pursuant to s151Z any sum in excess of $48,661.27, grounding her claim for such a declaration on concepts of estoppel by representation. Brownie J made the declaration sought. In my view his Honour was correct in so doing. The representation by the appellant was clear, namely, that the "total workers compensation payback is $48,661.27". That representation was made in relation a query regarding the payback figure for both claims. That the incorrect representation of the payback figure was made to the respondent's solicitors is reinforced by a letter from the appellant to its solicitors in which, having noted that the two claims had not been linked by the AMP's computer system, it was stated: "Thus yourselves and the claimant's solicitors seem to have been given, at various times, a payback figure that was attributable to one file only." That the respondent relied upon the representation was clear on the evidence and not seriously challenged. That she suffered detriment is equally plain. She said she would not have settled her claim for $200,000 had she known the correct payback figure. Alternatives foregone were attempting to negotiate a higher figure, or litigating the matter. The purpose for which the payback figure was required was made plain by the solicitor's secretary to the appellant's officer, but would have been obvious in any event to a person in the appellant's workers compensation section dealing with payback figures. The appellant, through its officer, knew that the respondent would rely on the quoted payback figure in negotiations to settle common law claims. There is no absence of proportionality between the remedy granted by Brownie J and the detriment which otherwise the respondent would suffer. The remedy prevents the recovery of the additional $36,324.08 which is the detriment which the respondent would suffer were the appellant permitted now to deny is representation that the payback figure for both claims was $38,661.27. The case falls squarely within the statement of principle by Mason CJ in The Commonwealth of Australia v Verwayen!: "The result is that it should be accepted that there is but one doctrine of estoppel, which provides that a court of common law or equity may do what is required, but no more, to prevent a person who has relied upon an assumption as to a present, past or future state of affairs (including a legal state of affairs), which assumption the party estopped has induced him to hold, from suffering detriment in reliance upon the assumption as a result of the denial of its correctness. A central element of that doctrine is that there must be a proportionality between the remedy and the detriment which is its purpose to avoid." The appeal should be dismissed with costs. Counsel for the appellant: I Mescher Solicitors for the appellant: Moray & Agnew Counsel for the respondent: B M J Toomey QC/K P Rewell 1. (1990) 170 CLR 394 at 413. URAMP WORKERS COMPENSATION SERVICES (NSW) LTD v WILLIAMS (Cole JA) 3 Solicitors for the respondent: Dennis & Company