District Court New South Wales Medium Neutral Citation: Lila Prasad v Health Support Services P/L [2012] NSWDC 190 Hearing dates: 8, 9 August 2012 Decision date: 14 September 2012 Before: MJ Finnane QC DCJ Decision: See para [57] Catchwords: CIVIL LAW - workers compensation - workplace injury - compensation - injury - transverse myelitis - employer's duty to employee - reasonable care - risk of injury - negligence - occupational health and safety - liability - estoppel - res judicata Legislation Cited: Workers Compensation Act 1987 Workplace Injury Management Act and Workers Compensation Act 1998 Cases Cited: Bankstown Foundry v Braistina (1986) 160 CLR 301 Re Waring, Westminster Bank Ltd v Wary [1942] Ch 309 Texts Cited: Spencer, Bower & Handley, Res Judicata, 4th Edition Category: Procedural and other rulings Parties: Lila Prasad (Plaintiff) Health Support Services P/L (Defendant) Representation: Mr D Stanton (Plaintiff) Mr J Dodd (Defendant) Slater & Gordon Lawyers (Plaintiff) DLA Piper (Defendant) File Number(s): 2011/343200 Judgment Introduction 1The plaintiff sues the defendant for personal injuries claiming that she was injured whilst working for the defendant at the Parramatta Linen Service, a business enterprise of the New South Wales government. 2It is the plaintiff's claim that on 12 March 2005 she received an injury to the back while she was pushing a heavy trolley laden with items that were to be laundered such as bed sheets, blankets and other laundry products. The defendant denies liability and claims that the plaintiff was not injured whilst she was working for it. 3The plaintiff further claims that the defendant is estopped from denying that the plaintiff was injured whilst she was working for it, because, according to the plaintiff, this issue was determined before trial by a decision of the Workers Compensation Commission, which also determined that she had a 33% whole person impairment. Leave to continue proceedings 4At the outset of the proceedings, I allowed the proceedings to continue notwithstanding the fact that the plaintiff had not brought them within time. The defendant did not object to my granting leave. 5For reasons which I will set out in more detail, I find that the plaintiff was injured whilst she was working for the defendant and I further find that the defendant was negligent and that it was the negligence of the defendant that caused the plaintiff to be injured. There is no contributory negligence on the part of the plaintiff. 6The determination of the extent of the injury was made by a tribunal set up by law to determine it. Indeed, the determination had to be made that the plaintiff had a degree of permanent impairment of at least 15% before any proceedings could be brought by the plaintiff in a court (see Workers Compensation Act, 1987, sections 151G and 151H; Workplace Injury Management Act 1998 section 314). 7The tribunal, namely the Workers Compensation Commission, required the registrar to obtain a certificate as to the degree of permanent impairment and the certificate was issued pursuant to section 319 of the Act that the plaintiff had a 33% impairment. Section 326 of the Act provides that such a certificate is conclusively presumed to be correct in any proceedings before a court or the commission with which the certificate is concerned. 8The defendant admitted in its defence that the plaintiff had such a certificate. In my opinion, for reasons set out more fully below, the determination that the plaintiff was injured at work cannot be challenged by the defendant and the defendant cannot challenge that the degree of impairment was permanent. Accordingly, I exclude from evidence all the defendant's medical reports, since those reports are directed to establish that the plaintiff did not suffer a work caused injury and that the work caused injury was not permanent. The defendant because of the estoppels cannot rely on such evidence. 9The plaintiff's claim is for economic loss only. She was completely unable to work for a period, returned to work at reduced hours for a period and subsequently was completely unable to work. Her lack of earning capacity for the future is permanent and she is entitled to damages until the time she is 65 years. That will result in a judgment for her in the sum of $ 422,059.00. Facts 10The plaintiff was born on 13 January 1950 in Fiji. She spent 3 years in primary school and had no other education. She migrated to Australia with her husband and 4 children in January 1983 and on 23 May 1983, she became an employee of the defendant, working at the Parramatta Linen Service from that time until her resignation on 30 June 2007. She had an intention of working until she was 65 years old. The plaintiff was not a well-educated woman, nor, in my opinion, did she have a full grasp of the English language. Although she gave evidence without an interpreter, it was obvious to me that she found difficulty at times in following questions that were asked of her and at times answered questions in a way that suggested she may not be understanding clearly what it was that she was being asked. This was particularly so when she was being cross-examined and asked about pulling and pushing the trolley. I have taken into account when assessing submissions by Mr Dodd about the credibility of the plaintiff my views on her difficulties with the English language. 11She worked an 8 hour day from Monday to Friday and also worked on Saturday, sometimes for 6 hours and sometimes for 8 hours. The Saturday work occurred 2 or 3 weeks in every month. Sometimes she would also work extra hours during the week, commencing earlier in the morning and going home later in the evening. Mrs Maharaj, who gave evidence supporting the plaintiff, also gave evidence of working similar hours. There was no suggestion that the plaintiff was exaggerating her claims about working extended hours before the accident and that she wanted to continue working extended hours until she retired. 12The job that she had was essentially a labouring job. Linen from various hospitals came into the service, was washed, ironed and folded. The washing came in big bags from hospitals and the bags were placed on conveyor belts. The women working in the laundry had the task of sorting the laundry and putting it on the conveyor belts. Men would then load the laundry into washing machines and when the laundry was washed would put the wet laundry onto large trolleys. Women would then take it in turn to push the trolley over to a large machine where it would be loaded from the trolleys so that it could be ironed. 13The machine had 4 places at which women would stand for the purpose of feeding the wet laundry and at the other end of the machine the laundered items would be taken out and packed. According to the plaintiff, there was a quota system operating and this meant that they had to work quickly. The amount of work was checked during the day and if not enough work was being done, the supervisors would scream at them. If they worked overtime, they were expected to work even more quickly. The evidence that she gave about the quota system was not challenged and, therefore, I accept that such a system was in place during the time that she worked for the defendant and at the day of the accident. 14The wet laundry could be quite heavy, especially if the men loading the trolleys put too much laundry onto the trolley. The trolleys with wet laundry, which were hard to push, frequently would not move easily because they were frequently loaded to the top and were heavy and because of material caught in the wheels. This material could be bits of cords from aprons or pieces of cotton from various items of laundry. 15On many occasions the trolleys were overladen with laundry. Each trolley was laden with a number of layers of laundry and they could be one, two, three or even four layers of laundry on a trolley. At times, the layers of laundry were higher than the fourth layer. The plaintiff identified in exhibit P1 a typical trolley and marked in red on the exhibit the various levels to which laundry was loaded. The trolley appears to be a large vehicle made of steel and on 3 sides enclosed with rigid wire mesh. About halfway up the trolley and there is a projecting handle which runs along one side of the trolley and it is with this handle that the women would pull all push. The trolley has 4 wheels and appears to have a height of approximately 2 metres. Thus the trolley might have a load extending upwards about 80 cm and 1.2 meters or somewhere between 1.7 and 2 meters. 16The trolley might have to be moved as much as 20 metres and the plaintiff found it difficult at times to move the trolley. Her evidence was confirmed by the evidence of Mrs Anita Maharaj who did the same work and was employed by the defendant for 18 years. Mrs Maharaj said that the men loading trolleys "usually they should put only one load. Sometimes the man they put 2 loads, 3 loads, sometimes it overflow" (transcript page 74.50). 17Mrs Maharaj also confirmed that it was hard to push the trolley because the wheels had cotton, paper and bib strings all caught together, with the result that "so you have to really push the trolley very hard" (transcript page 76.25). She said that sometimes it was very hard to move the trolleys and to get them moving, the workers tried to push and sometimes that led to them being freed up a little and then they would pull the trolleys (Transcript page 76.40 to page 77.1). She said that there was a problem with the wheels most of the time and that complaints to supervisors did not result in anything being done apart from suggestions by the supervisors that they should get the men to help, but the men never came to help. She herself became a leading hand and she complained to supervisors as well, but she was given no assistance either (Transcript page 77.8 to page 78.42). She also confirmed the quota system (see transcript page 78.50). 18When Mrs Prasad had her accident, she made a complaint to Mrs Maharaj and then went with her to the ladies toilets where Mrs Prasad pulled up her shirt and Mrs Maharaj could see that her back was swollen with what looked to her like a lump (Transcript page 79.39 to page 79.47).She regarded the plaintiff as being a hard worker before the accident but when the plaintiff returned to work, she noticed that she was working more slowly and complaining of pain. Mrs Maharaj was working for the defendant when brought into operation the new system of work that meant that washing was brought in bags are an overhead conveyor rail and dropped near the women working at the ironing machine (Transcript page 81.25 to 81.31). From this time she did not need to go and get trolleys with wet washing in them. She confirmed that the plaintiff was working when this came into operation. 19The accident occurred on 12 March 2005. Until that day, the plaintiff had worked continuously since 23 May 1983 with the defendant doing work that involved amongst other things, the pushing and pulling of trolleys laden with wet laundry. From time to time, she experienced difficulty in pushing and pulling these trolleys. Her supervisors merely told her to carry out the task and if she found it too difficult, to get help from a man. However, if no man would help, she had to push or pull the trolleys herself. This proved to be difficult when any or all of the wheels of the trolleys were jammed with cotton or lint. Sometimes men would use knives to cut away the material caught in the wheels, but this did not often happen. 20On the day in question, she was told to move a trolley containing wet laundry. It was close to other trolleys. The trolley's wheels stuck. The supervisor would give her no assistance and told her to move it. She moved the trolley forwards and then backwards to loosen the wheels. She hit other trolleys while she was doing this. She then felt a sharp pain in the back. This was caused by an injury to her back. 21The plaintiff gave evidence that she felt an immediate sharp pain in her back, like she had never felt before and stood up pulled the trolley and gave it to the girls and kept working until 12 o'clock. She complained to Mrs Maharaj at about 11 AM and was told of her back was swollen She said she felt a lot of pain in her back and after her shift she went home and took some Panadol. She rested but on the Sunday she could not walk and felt a loss of sensation below her hips. Her husband had to help her go to the toilet. On the Monday she went to see her general practitioner and was later admitted to Blacktown hospital then to Westmead Hospital. The plaintiff could not pass urine and she had an inability to use her bowels. On 1 April she left Westmead Hospital and went to St Joseph's Hospital where she stayed until 8 April 2005. Her condition had improved to the point that she could walk but she had a catheter inserted and still felt numbness below her hips. The defendant declined to pay her any workers compensation, with the result that she used her sick leave and then some long service leave. When all that had run out and she had a period of leave without pay, she decided to return to work on 28 April 2006 she told me that she went back to work because she needed the money. She asked for light work, but this was refused because the workers compensation insurer had declined workers compensation. She continued working until 30 June 2007 when she resigned because she could not continue to work. 22I accept the plaintiffs' evidence on this matter and on all other matters. She impressed me as being a very hard-working and committed employee who was determined to work and stopped working and only because her injury was so severe that she could not continue. I would also accept the evidence of Mrs Maharaj that when the plaintiff came back to work she worked more slowly than she had done before. She did no overtime after she returned to work. She has not worked since that time. 23The defendant's counsel in his submissions put the proposition that the plaintiff had a residual earning capacity after she resigned and that there was other work she could have done. I reject that submission. The plaintiff was a largely uneducated and unskilled woman who had only ever done factory labouring work. She had no other skills and clearly at the time she left work at a job that she liked, she did so because of the pain and disability. In my opinion she retained no residual earning capacity. 24There was some faint attack on the credibility of the plaintiff. It had no effect, in my opinion. She was an honest, very hard working woman who worked for many years at the laundry of the defendant, without any injury at all. I accepted her as credible and I reject the attacks on her credibility. I would add that although the plaintiff in her case mentioned complaints to supervisors, who were identified, and Mrs Maharaj identified the same persons, the defendant did not seek to call any evidence from the supervisors to contradict anything she said in evidence. There was no evidence called by the defendant to explain why the supervisors did not give evidence nor to explain their absence from the proceedings. I draw the conclusion that these potential witnesses would not have assisted the defendant in its case. What was the injury she suffered? 25The injury she suffered was in fact transverse myelitis. I am able to come to this conclusion without referring to the medical evidence tendered in the trial because this issue was determined to conclusively in the workers compensation proceedings that were concluded before this trial commenced. I refer elsewhere to those proceedings. 26She has not recovered from this injury, although, as I earlier said, for a while, because of economic necessity, she returned to work, but was unable to work as hard as she had before, nor could she work as many hours. The injury is permanent in nature. That also has been determined conclusively in the workers compensation proceedings. What was the duty that the employer owed the plaintiff? 27In Bankstown Foundry v Braistina (High Court of Australia 160 CLR 301 at 306) those duties were laid down in the following terms: "9. It is convenient now to take up the appellant's attack on certain expressions used by Priestley J.A. and by McHugh J.A. in the Court of Appeal. Priestley J.A., having identified as the critical and difficult issue the question whether reasonable care required the appellant to direct that the hoist always be used in lifting the pipes, turned to the following passage from the judgment of Mason J. in Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40, at pp 47-48: "The perception of the reasonable man's response (to the risk of injury) calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position". His Honour then referred to three recent decisions of this Court; McLean's Roylen Cruises Pty. Ltd. v. McEwan [1984] HCA 43; (1984) 58 ALJR 423, at p 425; [1984] HCA 43; 54 ALR 3, at pp 6-7; Kondis v. State Transport Authority [1984] HCA 61; (1984) 154 CLR 672, at p 693; McLean v. Tedman [1984] HCA 60; (1984) 155 CLR 306, at pp 312-313 and continued: "In the latter two of these cases there is instruction, as it seems to me, over and above the mere repetition of the conventional formulas (sic). There is what appears to be a deliberate emphasis on the heavy obligation upon an employer in fulfilling his duty to take reasonable care to avoid exposing his employee to an unnecessary risk of injury". The passages in the judgment of McHugh J.A. to which counsel for the appellant takes exception are the following: "The common law requires no more of an employer than that he take reasonable care for the safety of his employee. Reasonable care, however, varies with the circumstances of the case. It varies with the advent of new methods and machines and it varies in accordance with changing ideas of justice and increasing concern with safety in the community. I think that it is impossible to read recent decisions of the High Court of Australia without realising that employers are now required to comply with safety standards which, only twenty years ago, would have been seen as imposing an onerous even an absurd burden on employers. Cf. Turner v. State of South Australia (1982) 56 ALJR 839 with Skinner v. Barac (1961) 35 ALJR 124 and Commissioner for Railways v. O'Brien [1958] HCA 20; (1958) 100 CLR 211. Throughout the common law of negligence, but particularly in the employer/employee field, the standard of care required of a defendant has moved close to the border of strict liability". 10. Counsel for the appellant argues that these passages show that their Honours have postulated a higher duty of care resting on employers than the traditional test of reasonable care. We do not think that, properly understood, the passages bear out such a claim. Indeed, each of their Honours commence their discussion with an endorsement of the conventional formula. The reference by McHugh J.A. to strict liability is unfortunate because of its tendency to mislead but there can be no doubt that his Honour was not intending to break new ground in the law of employer's liability. Indeed, he says explicitly that the common law requires no more than that an employer take reasonable care for the safety of his employee. Again, the reference by Priestley J.A. to what his Honour perceives in recent decisions of this Court as "a deliberate emphasis on the heavy obligation upon an employer in fulfilling his duty to take reasonable care" must be evaluated in the context of the particular circumstances and issues which were involved in each of the cases to which he referred. This is not the place for an examination of the reasoning in earlier decisions of this Court. What must be asserted is that the law has not changed. It is as accurate today as it was thirty years ago to say that the duty: "is that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risks of injury": Hamilton v. Nuroof (W.A.) Pty. Ltd. [1956] HCA 42; [1956] HCA 42; (1956) 96 CLR 18, per Dixon C.J. and Kitto J. at p 25." 28In my opinion, the defendant was negligent because it did expose the plaintiff to unnecessary risks of injury. It failed to provide for her a safe system of work. There was evidence that the employer was aware of the requirements of the Occupational Health and Safety Act and the need to ensure that manual work was carried out in a safe manner. 29It was not safe, in my opinion, to require her, without assistance being provided to her, to move trolleys that were heavy. It was also not safe to require her to move trolleys that had at least one wheel jammed with cotton or lint. The defendant was aware that manual workers were liable to injure their backs and it was incumbent on the employer to set up and maintain a safe system of work. That would not have been difficult to do, as it merely required the provision of assistance to carry out the work and/or someone to clean the foreign material from the wheel of the trolleys. 30Provision could also have been made to ensure the loads of material on the trolleys were not heavy. This would have required nothing more than an instruction to the men loading the trolleys, not to put more than a light load on the trolleys. Evidence was given by Mrs Maharaj, another employee that from time to time, the men would put light loads on the trolleys although normally the loads were heavy. 31At about the time of the accident, work was being carried out to install ceiling rails that would carry loads of laundry so that the female workers did not have to push trolleys. The employer was thus aware of the need to set up an alternative and safer method of handling the laundry.In fact, this system was in operation when the plaintiff returned to work. It enabled laundry to be carried overhead and dropped into places near where the women worked and thus avoided the need for them to push heavy trolleys. 32Another cheap alternative suggested by Mr Dubois, an expert witness called by the plaintiff, in his report was the replacing of the trolley wheels with pneumatic wheels at a cost of about $15 per wheel. It seems to me that this was a clearly available alternative. Additionally, instructions could have been given to the men loading the trolleys to put only light loads on them. 33It is clear to me that the plaintiff made many complaints to her supervisors about the difficulty she was having with this work and those complaints fell on deaf ears. A proper and safe system of work, in my opinion, would have required supervisors to take notice of complaints and to take action to protect the workers from the risk of injury. 34The defendant claimed contributory negligence but did not press this claim. It was correct not to do so, since in my opinion there was nothing that plaintiff did that would show that she was in anyway responsible for the accident by her own negligence. Res Judicata 35The defendant submitted that even if I found negligence, there was no damage of any significance because the medical problems of the plaintiff were not caused by the accident at work. 36Initially the defendant accepted liability for the plaintiff's (then applicant's) claim for weekly compensation benefits. However, on 15 April 2005 it denied liability, claiming that the injury of which the plaintiff complained was not caused by her work. The plaintiff on the other hand, claimed that she was injured at work and the consequences of that injury left her permanently incapacitated.The plaintiff then applied to the Workers Compensation Commission for weekly benefits, section 60 expenses and lump sum compensation in respect of the injury to her back caused by the accident. 37At the hearing before the Workers Compensation Commission, the plaintiff relied on the reports of Dr Teychenne, whilst the defendant relied on reports of Dr Ross Mellick, Dr Dawson and Dr Arudpragasam. The issue in the hearing was whether the plaintiff was totally incapacitated and also whether the plaintiff suffered an injury at work that caused that total incapacitation. Evidence was presented on both those issues and submissions were made. The arbitrator held that the plaintiff suffered injury within the meaning of section 4 of Workers Compensation Act 1987. That injury was transverse myelitis of the back suffered at work on 12 March 2005. 38The arbitrator directed that the registrar refer the question of the degree of permanent impairment of the nervous system (back) from the work related injury (transverse myelitis) to an approved medical specialist for assessment in accordance with the WorkCover guides for the evaluation of permanent impairment with the date of injury of 12 March 2005. The arbitrator also directed that all documents before her and her statement of reasons be sent to the assessor. The assessor conducted a physical examination of the plaintiff, considered all the documents supplied to him and having taken into account his clinical examination, the medical history supplied by the plaintiff then determined that she had a 33% whole of body impairment. The Workers Compensation legislation 39This complex legislative framework is contained in two separate pieces of legislation, namely the Workers Compensation Act 1987 and the Workplace Injury Management Act 1998. 40I set out in an appendix to this judgement the relevant sections of those two pieces of legislation. For present purposes, the following features should be noted: (1)Both Acts are to be read together and if there is any inconsistency, the 1998 Act prevails. (2)The 1987 Act provides for the payment of compensation for permanent impairment. A plaintiff can get impairment compensation under this legislation if it can establish that he has a permanent impairment of 10%. The amount of impairment of compensation is calculated according to a formula found in section 66 (2) of the 1987 Act. This replaces damages for personal injury payable under the former common-law system. This compensation is determined by an arbitrator of the Workers Compensation Commission. If there is any dispute about the degree of permanent impairment of the worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist (Section 65 (3) of the 1987 Act. That assessment must be assessed in accordance with guidelines under section 376 of the 1998 Act. Under those guidelines, which extend to 100 pages, an assessment process is set out and the approved medical specialist makes the assessment in accordance with the guidelines. (3)Damages for past and future loss of earnings may be awarded (Section 151G of the 1998 Act). These damages are recoverable in proceedings before a court. (4)No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment that is at least 15% (section 151 H of the 1987 Act; sec 314 of the 1998 Act). Psychological injury is excluded when the degree of permanent impairment is calculated. (5)In calculating damages for future economic loss, the Court must exclude any earning capacity of the worker after pension age as provided for in Commonwealth Social Security legislation. (6)The discount rate for future economic loss is 5% (Section 151J the 1987 Act). (7)The 1998 Act makes provision for the worker to give a notice of injury to the employer (section 61), for making a claim for compensation (section 65), the manner of making a claim for compensation (section 66) and the requirement for insurers to give notice and reasons when liability is disputed (Section 74). (8)The Workers Compensation Commission is given exclusive jurisdiction to determine claims for compensation, including compensation for permanent impairment (Section 105). (9)Decisions of the Commission are final and binding on the parties (Section 350). There is a limited right of appeal (Sections 351 and 352). (10)The Commission consists of various members, including arbitrators (Section 368). 41The disputes that were before the Workers Compensation Commission were as follows: (1)Did the plaintiff suffer a work caused injury on 12 March 2005 whilst she was working for the defendant? (2)What was the nature of that injury? (3)Did the plaintiff, as a result of that work caused injury suffer a permanent impairment entitling her to section 60 compensation and weekly payments of compensation? 42The defendant denied that the plaintiff suffered any work caused injury and further denied that there was any permanent impairment as a result of the injury. Evidence was called before the arbitrator, submissions were made, there was an analysis of the evidence and the arbitrator made a decision. 43It is clear from a reading of the decision of the arbitrator that the question of causation of the injury was a central feature of the case. Another important feature of the case was whether the plaintiff's employment was a substantial contributing factor to the injury for the purposes of section 9A of the 1987 Act. 44In her statement of reasons (paragraph 31) the arbitrator refers to this issue as one arising under the 1998 Act, but it is clear to me that by some type of error she is referring to the wrong Act and the litigation was conducted on the basis that section 9A of the 1987 Act applied. The defendant did not dispute before the arbitrator that the plaintiff's employment was a substantial contributing factor to the injury. 45The arbitrator referred for assessment by a medical specialist the question of permanent impairment and directed that her reasons and all relevant material be sent to the assessor. Once the assessor determined the question of permanent impairment, two consequences immediately flowed: (1)If the degree of impairment assessed was greater than 10%, the worker was entitled pursuant to get section 66 compensation calculated in accordance with the formula under that section. The greater the degree of impairment above 10%, the greater the compensation. (2)If the degree of impairment assessed was greater than 15%, the worker was entitled to commence proceedings in court for past and future loss of earnings. 46In the present proceedings, the defendant has again put in issue that the plaintiff suffered a work caused injury and that it was permanent. The defendant sought to tender the same medical reports that were tendered before the arbitrator and sought to convince me that even if the plaintiff did suffer a work caused injury as she claimed, it was not transverse myelitis and she is not entitled to any economic loss. 47The plaintiff claimed that the defendant was estopped from denying the finding by the Workers Compensation Commission of causation of injury, the nature of the injury and that it was permanent. The plaintiff thus, is claiming that a res judicata estoppel against the defendant prevents it relitigating matters that have already been determined by the Workers Compensation Commission. 48In Spencer, Bower and Handley "Res Judicata" (4th Edition) the following statement of principle appears: "A party setting up a res judicata as an estoppel against his opponent's claim or defence, or as the foundation of his own, must establish its constituent elements, namely, that: (i) the decision, whether domestic or foreign, was judicial in the relevant sense; (ii) it was in fact pronounced; (iii) the Tribunal had jurisdiction over the parties and the subject matter; (iv) the decision was- final; on the merits; (v) it determined a question raised in the later litigation; and (vi) the parties are the same, albeit privies or the earlier decision was in rem." (Page 1). 49The elements to which I have just referred, in my opinion, are, with respect to the eminent editor of the work, correctly stated. In the present case, the parties in the Workers Compensation Commission and this court are identical. 50The parties litigated before the Workers Compensation Commission the questions of the causation of the injury, the nature of the injury and whether the injury was permanent. The decision of the arbitrator was final on the question of causation and nature of the injury. The question of permanent injury was litigated before the Commission and by operation of law, that decision was referred by the Commission to be to be made by a medical specialist. 51In my opinion, the decision of the specialist was also a final decision binding the parties to the litigation. It was a decision on the merits, it was final and was pronounced. The decision of the Workers Compensation Commission was a judicial decision and the decision of the specialist was a judicial decision. 52It then follows, in my opinion, that, the defendant is estopped from again litigating in this Court issues that have already been judicially determined. It cannot be permitted to tender evidence seeking to throw doubt on of those decisions. I can understand that the defendant wishes to contend that the earlier decisions were wrong, that the plaintiff was not injured at work, but in fact has disabilities unrelated to work and that any injury that she did have was not permanent in nature. However, it is clear that even if the earlier decision is not correct in fact or law, nevertheless it is a decision which can create a res judicata (see Re Waring, Westminster Bank Ltd v Wary [1942] Ch 309). 53Because the matters were determined in the earlier litigation the defendant cannot litigate them again. From this it follows that once I have determined that the defendant was negligent, as I have, it follows that the plaintiff is entitled to a verdict which includes all economic loss that she has suffered from the date of the accident and that she will suffer until she is 65 years old. What is the economic loss suffered by the plaintiff? 54The plaintiff suffered a complete loss of income from the date of the accident until she returned to work. From that time until 30 June 2007, she suffered a partial loss of income because she was unable to do their work on a Saturday or any overtime work during the week because of her injury. I accept that she worked more slowly than she had before the accident and that she felt tired and unwell at the end of each day. She persisted with work until she could do it no longer. From the date of her resignation until that time she turns 65 years of age she has suffered and will suffer a continuing loss of earning capacity which can be calculated on the average earnings that a worker in her position would have earned during that period. 55I have earlier rejected the submission that following her resignation she retained a partial earning capacity. In my opinion, she retained now earning capacity at all from that time and will have none until she obtains the old-age pension at the age of 65 years. 56The amount that the plaintiff seeks is based on a calculation to cover these various periods and takes into account the earnings of comparable workers. The defendant has agreed that the sum she seeks is correctly calculated at $422,059. 57There will be a verdict for the plaintiff in the sum of $422,059. Annexure to Judgment Workers Compensation Act 1987 No 70 4 Definition of "injury" (cf former s 6 (1)) In this Act: injury: (a) means personal injury arising out of or in the course of employment, (b) includes a disease injury, which means: (i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and (ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and (c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined. 9A No compensation payable unless employment substantial contributing factor to injury (1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury. Note. In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4. (2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination): (a) the time and place of the injury, (b) the nature of the work performed and the particular tasks of that work, (c) the duration of the employment, (d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment, (e) the worker's state of health before the injury and the existence of any hereditary risks, (f) the worker's lifestyle and his or her activities outside the workplace. (3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following: (a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment, (b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury. (4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies. 65 Determination of degree of permanent impairment (1) For the purposes of this Division, the degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act. (2) If a worker receives more than one injury arising out of the same incident, those injuries are together to be treated as one injury for the purposes of this Division. Note. The injuries are to be compensated together, not as separate injuries. Section 322 of the 1998 Act requires the impairments that result from those injuries to be assessed together. Physical injuries and psychological/psychiatric injuries are not assessed together. See section 65A. (3) If there is a dispute about the degree of permanent impairment of an injured worker, the Commission may not award permanent impairment compensation unless the degree of permanent impairment has been assessed by an approved medical specialist. (4) (Repealed) 66 Entitlement to compensation for permanent impairment (1) A worker who receives an injury that results in a degree of permanent impairment greater than 10% is entitled to receive from the worker's employer compensation for that permanent impairment as provided by this section. Permanent impairment compensation is in addition to any other compensation under this Act. Note. No permanent impairment compensation is payable for a degree of permanent impairment of 10% or less. (1A) Only one claim can be made under this Act for permanent impairment compensation in respect of the permanent impairment that results from an injury. (2) The amount of permanent impairment compensation is to be calculated as follows: (a) (Repealed) (b) if the degree of permanent impairment is greater than 10% but not greater than 20%, the amount of permanent impairment compensation is to be calculated as follows: (c) if the degree of permanent impairment is greater than 20% but not greater than 40%, the amount of permanent impairment compensation is to be calculated as follows: (d) if the degree of permanent impairment is greater than 40% but not greater than 75%, the amount of permanent impairment compensation is to be calculated as follows: (e) if the degree of permanent impairment is greater than 75%, the amount of permanent impairment compensation is $220,000, where D is the number derived by expressing the degree of permanent impairment as D%. (2A) To the extent to which the injury results in permanent impairment of the back, the amount of permanent impairment compensation calculated in accordance with subsection (2) is to be increased by 5%. Example 1. A person suffers 12% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $17,050 ($13,750 + [2 × $1,650]). If the whole of the impairment is to the back, the compensation payable in relation to the back will be the whole $17,050. Under this subsection, that $17,050 will be increased by 5%, yielding $17,902.50. Example 2. A person suffers 50% permanent impairment. Under subsection (2), the amount of permanent impairment compensation to which he or she is entitled is $123,750 ($85,250 + (10 × $3,850)). If two-thirds of the impairment is to the back, the compensation payable in relation to the back will be two-thirds of $123,750, or $82,500. Under this subsection, that $82,500 will be increased by 5%, yielding $86,625. The total compensation payable for the impairment will therefore be $127,875. (3) The amount of permanent impairment compensation is to be calculated under this section as it was in force at the date the injury was received. 74 Damage to artificial limbs etc (cf former s 10A (1), (2), (3)) (1) A worker: (a) who has met with an accident arising out of or in the course of the worker's employment, and (b) whose crutches, artificial members, eyes or teeth, other artificial aids, or spectacles, are damaged as a result of the accident, is entitled to receive, by way of compensation from the worker's employer, the reasonable cost of repairing or, if necessary, replacing the articles so damaged. (2) Nothing in this section: (a) affects the liability of an employer under Division 3, or (b) entitles a worker to payments under this section as well as under Division 3 in respect of the same damage. (3) For the purposes of this section, the cost of repairing or replacing any article includes: (a) any fees and charges paid by the worker to medical practitioners, dentists or other qualified persons for such services by way of consultations, examinations or prescriptions as are reasonably rendered in connection with the repairing or replacing of the article, and (b) the amount of any wages lost by the worker by reason of the worker's attendance at any place for the purpose of having, undergoing or obtaining any such consultation, examination or prescription. 151G Only damages for past and future loss of earnings may be awarded (1) The only damages that may be awarded are: (a) damages for past economic loss due to loss of earnings, and (b) damages for future economic loss due to the deprivation or impairment of earning capacity. (2) This section does not apply to an award of damages in an action under the Compensation to Relatives Act 1897. 151H No damages unless permanent impairment of at least 15% (1) No damages may be awarded unless the injury results in the death of the worker or in a degree of permanent impairment of the injured worker that is at least 15%. Note. Section 322 of the 1998 Act provides that the assessment of the degree of permanent impairment is to be made in accordance with WorkCover Guidelines. That section also provides that impairments that result from the same injury are to be assessed together. (2) In assessing whether the 15% threshold has been met (that is, whether the degree of permanent impairment resulting from an injury is at least 15%): (a) impairment resulting from physical injury is to be assessed separately from impairment resulting from psychological injury, and (b) in assessing impairment resulting from psychological injury, no regard is to be had to impairment that results from a secondary psychological injury, and (c) the 15% threshold is not met unless the degree of permanent impairment resulting from physical injury is at least 15% or the degree of permanent impairment resulting from psychological injury is at least 15%. Note. This does not prevent an award of damages in respect of both psychological and physical injuries together once the 15% threshold has been met for one or the other. (3) In assessing the degree of permanent impairment that results from a physical injury, no regard is to be had to any impairment or symptoms resulting from a psychological injury. (4) The degree of permanent impairment that results from an injury is to be assessed as provided by this section and Part 7 (Medical assessment) of Chapter 7 of the 1998 Act. (5) In this section: psychological injury includes psychiatric injury. secondary psychological injury means a psychological injury to the extent that it arises as a consequence of, or secondary to, a physical injury. 151IA Retirement age In awarding damages for future economic loss due to deprivation or impairment of earning capacity or (in the case of an award of damages under the Compensation to Relatives Act 1897) loss of expectation of financial support, the court is to disregard any earning capacity of the injured worker after pension age (as defined in the Social Security Act 1991 of the Commonwealth for persons other than veterans). 151J Damages for future economic loss-discount rate (1) For the purposes of an award of damages, the present value of future economic loss is to be qualified by adopting the prescribed discount rate. (2) The prescribed discount rate is: (a) a discount rate of the percentage prescribed by the regulations, or (b) if no percentage is so prescribed, a discount rate of 5 per cent. (3) Except as provided by this section, nothing in this section affects any other law relating to the discounting of sums awarded as damages. Workplace Injury Management and Workers Compensation Act 1998 No 86 61 Notice of injury to be given to employer (cf former s 88) (1) Compensation may not be recovered under this Act unless notice of the injury has been given to the employer as soon as possible after the injury happened and before the worker has voluntarily left the employment in which the worker was at the time of the injury. (2) Notwithstanding subsection (1), the absence of, or any defect or inaccuracy in, any such notice is not a bar to the recovery of compensation if it is found in proceedings to recover that compensation: (a) that the person against whom the proceedings are taken has not been prejudiced in respect of the proceedings, or (b) that the absence of, or defect or inaccuracy in, the notice was occasioned by ignorance, mistake, absence from the State or other reasonable cause, or (c) that the person against whom the proceedings are taken had knowledge of the injury from any source at or about the time when the injury happened, or (d) where the employer is the owner of a mine or quarry, or the occupier of a factory, workshop, office or shop: (i) that the summary referred to in section 231 has not been posted up in accordance with that section or the employer has otherwise contravened that section, or (ii) that the injury has been reported by or on behalf of the employer to an inspector of mines or factories, shops and industries, or (iii) that the injury has been treated in a first aid room at the mine, quarry, factory, workshop, office or shop, or (e) that the injury has been reported by the employer to the Authority in accordance with 65 Making a claim for compensation (cf former s 92) (1) A claim for compensation must be: (a) in writing, and (b) in such form or contain such information as may be prescribed by the regulations or approved by the Authority, and (c) in the case of a claim for weekly payments of compensation-accompanied by a medical certificate that is in or to the effect of the approved form, or that is in any other form and contains information that is reasonably sufficient in the circumstances to assist in the determination of the claim, and (d) accompanied by such additional medical certificates or other documents as may be prescribed by the regulations, and (e) made in the manner prescribed by section 66. (2) A claim for compensation need not be accompanied by a medical certificate or other document under this section if the medical certificate or document relates to information that is substantially available to the person on whom the claim is made from other appropriate documentation given or served by or on behalf of the claimant. (3) To the extent that information has been furnished or material provided in the course of the making of a claim for compensation, it is not necessary to furnish that information or provide that material when making any further claim for compensation in respect of the same injury. (4) The medical certificate required to accompany a claim for weekly payments of compensation must (unless the claim is a claim under section 10, 11 or 12 of the 1987 Act) include a statement of the medical practitioner's opinion (however expressed) concerning the likelihood of the worker's employment being a substantial contributing factor to the injury or whether the worker's condition is consistent with his or her employment being such a factor. (5) If a claim is deficient because subsection (4) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as possible after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement): (a) the claim is not considered to have been duly made for the purposes of section 93 until subsection (4) is complied with, and (b) court proceedings cannot be commenced in respect of the claim until subsection (4) is complied with. (6) All claims for compensation under sections 66 and 67 of the 1987 Act in respect of an injury must, as far as practicable, be made at the same time. A legal practitioner or agent who acts for a worker when such a claim is made is not entitled to recover any costs from the worker or the employer in relation to any such claim made later (including such a claim made by later amendment of court proceedings) unless there is a good reason for the claim being made later. (7) Compensation may not be recovered under this Act unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months of the date of death. (8) If a claim for compensation was made by an injured worker within the period required by subsection (7), that subsection does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker's claim related. (9) For the purposes of subsection (7), a person is considered to have made a claim for compensation when the person makes any claim for compensation under this Act in respect of the injury or death concerned, even if the person's claim did not relate to the particular compensation in question. (10) If there is no entitlement to compensation under section 66 of the 1987 Act for a loss of hearing because of section 69A of the 1987 Act (No compensation for less than 6% hearing loss) notice of injury given in accordance with section 62 suffices (for the purposes of this section) as a claim for the compensation concerned. (11) If a claim for compensation and any medical certificate or other document required to accompany the claim are not given or served at the same time, the claim for compensation is taken not to have been made until the day on which the last of those documents is given or served. In that case, all of those documents are taken to have accompanied the claim. (12) The failure to make a claim in accordance with subsection (1) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause. (13) The failure to make a claim within the period required by subsection (7) is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either: (a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or (b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker. (14) The failure to make a claim within the period required by subsection (7) is not a bar to the recovery of compensation if the insurer or self-insurer concerned determines to accept the claim outside that period. An insurer or self-insurer cannot determine to accept a claim made more than 3 years after the injury or accident happened or after the date of death (as appropriate) except with the approval of the Authority. (15) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of subsections (7) and (13) taken to have been received when the worker first became so aware. If death results from an injury and a person who is entitled to claim compensation under this Act in respect of the death first becomes aware after the death that the death resulted or is likely to have resulted from the injury, the date of death is, for the purposes of the application of subsections (7) and (13) to a claim by that person, taken to be the date that the person became so aware. (16) In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries) a claim for the compensation is for the purposes of this section taken to have been made when a claim is made on any one of those persons. (17) When particulars of any injury received by a worker are entered in a register of injuries kept by the employer under this Act, the making of that entry suffices for the purposes of subsections (7) and (13) as the making of a claim for compensation in respect of the injury. (18) In this section, approved form, in relation to a medical certificate, means a form in or to the effect of: (a) a form approved by the Authority for the purposes of this section or any form previously approved by the Authority for the purposes of this section, or (b) any form previously prescribed by the regulations for the purposes of this section. (19) The regulations may provide that, despite subsection (18), the approved form of a medical certificate must be in or to the effect of a particular form only in the case of any specified class of claims for compensation. (20) The claim form prescribed by the regulations or approved by the Authority for the purposes of this section can include a form of authority to be signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or workplace rehabilitation service to the claimant in connection with the injury to which the claim relates to give the insurer or self-insurer concerned or a conciliator information regarding the treatment or service provided or the worker's medical condition or treatment relevant to the claim. 66 Manner of making claim for compensation (cf former 92A) (1) The manner of making a claim for compensation is by serving the claim on the employer from whom the compensation is claimed. (2) A claim for compensation may be made by serving the claim on an insurer who has indemnified the employer in respect of the claim if: (a) the person making the claim has reason to believe that the employer may not forward the claim to the insurer in accordance with section 69 (1) (a), or (b) the employer has refused to receive the claim, or (c) the person making the claim cannot identify or find the employer, or (d) the employer (being a natural person) is dead, or (e) the employer (being a corporation) has been wound up. (2A) Once a claim for compensation (the initial claim) in respect of injury or death has been duly made by a person in accordance with subsection (1) or (2), any further claim by the person for compensation in respect of the injury or death may be made by serving it on either the employer from whom compensation is claimed or the insurer who has indemnified the employer. (2B) In subsection (2A), further claim includes: (a) any claim by the person for compensation of a different kind from that claimed in respect of the injury or death by the initial claim, or (b) any claim that is supplementary to or associated with the initial claim. (2C) An insurer must notify the employer concerned when a further claim is made by serving it on the insurer if the claim: (a) is for compensation under Division 4 (Compensation for non-economic loss) of Part 3 of the 1987 Act, or (b) is a claim of a kind that is prescribed by the regulations for the purposes of this section. (2D) The regulations may provide that in a specified class or classes of case a further claim must, despite subsection (2A), be served on the employer from whom the compensation is claimed. (3) For the purposes of this section, a claim for compensation is served on a person if: (a) it is given personally to the person, or (b) it is delivered or sent by post to the residence or any place of business of the person, or (c) it is served in any other manner authorised by sections 109X and 601CX of the Corporations Act 2001 of the Commonwealth. 74 Insurers to give notice and reasons when liability disputed (cf former s 94A) (1) If an insurer disputes liability in respect of a claim or any aspect of a claim, the insurer must give notice of the dispute to the claimant. (2) The notice must contain the following: (a) a statement of the reason the insurer disputes liability and of the issues relevant to the decision, (a1) a statement to the effect that the worker can request a review of the claim by the insurer, (b) unless paragraph (c) applies, a statement to the effect that the worker can refer the dispute for determination by the Commission, (c) if the insurer has referred or proposes to refer the dispute for determination by the Commission, a statement to that effect specifying the date of referral or proposed referral, (c1) a statement to the effect that the matters that may be referred to the Commission are limited to matters notified in the notice, or in a notice after a further review or in correspondence prior to any such referral concerning an offer of settlement or in a request for a further review, (d) a statement to the effect that the worker can also seek advice or assistance from the worker's trade union organisation or from a lawyer, (e) such other information as the regulations may prescribe or, subject to the regulations, as the Authority may from time to time approve and notify to insurers and self-insurers. (2A) In the case of a claim for compensation under this Act, a statement of reasons in a notice under this section is to indicate the provision of the workers compensation legislation on which the insurer relies to dispute liability. (2B) A notice under this section must be expressed in plain language. (3) The regulations may make provision for the form of and for other information to be included in or to accompany a notice under this section. The regulations may require an insurer to give a copy of a notice under this section to the claimant's employer. (3A) The regulations may create offences in connection with any failure to comply with this section. Note. A dispute as to liability to commence weekly payments within the requisite period after a claim for compensation is made must be notified in accordance with this section (See section 93 and the offence arising under section 94). (4) Notice is not required to be given under this section with respect to a dispute if notice has been given under section 54 of the 1987 Act with respect to the dispute and that notice contained the statements and information that a notice under this section is required to contain. (5) Before giving a notice under this section, an insurer must carry out an internal review of the decision to dispute liability in respect of the claim or an aspect of the claim. 105 Jurisdiction of Commission and Compensation Court (1) Subject to this Act, the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under this Act and the 1987 Act. (2) The Commission does not have that jurisdiction in respect of matters arising under Part 5 (Common law remedies) of the 1987 Act except for the purposes of and in connection with the operation of Part 6 of Chapter 7 of this Act. (3) The Commission does not have jurisdiction in respect of matters that the Compensation Court or (after the repeal of the Compensation Court Act 1984) the District Court has jurisdiction to examine, hear and determine. (4) Subject to this Act and the Compensation Court Act 1984, the Compensation Court has exclusive jurisdiction to examine, hear and determine all existing claim matters except matters arising under Part 5 of the 1987 Act. (4A) After the repeal of the Compensation Court Act 1984, the District Court has exclusive jurisdiction to examine, hear and determine all coal miner matters (except matters arising under Part 5 of the 1987 Act). (5) Despite section 17 (4) of the Compensation Court Act 1984, the Compensation Court does not have jurisdiction to reconsider a matter, or to rescind, alter or amend any decision previously made or given by the Court in relation to a matter, once the matter has become a new claim matter. (6) For the purposes of giving effect to subsections (4) and (4A), references in this Act to the Commission are to be read as references: (a) to the Compensation Court, to the extent that the reference relates to a matter that the Compensation Court has jurisdiction to examine, hear and determine, or (b) to the District Court, to the extent that the reference relates to a matter that the District Court has jurisdiction to examine, hear and determine. Note. Provision is made in the 1987 Act for regulations to require existing claims to be treated as new claims (transferred claims). The Compensation Court ceases to have jurisdiction in respect of transferred claim matters and the Commission acquires exclusive jurisdiction in respect of transferred claim matters. 314 What constitutes threshold dispute (1) For the purposes of this Part, there is considered to be a dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if: (a) the person on whom the claim is made has not accepted that the degree of permanent impairment of the injured worker resulting from the injury is at least 15%, or (b) there is a dispute as to whether the degree of permanent impairment resulting from the injury is fully ascertainable. Note. Under section 322 (4), an approved medical specialist may decline to make an assessment of the degree of permanent impairment of an injured worker until satisfied that the degree of permanent impairment is fully ascertainable. (2) There is considered to be no dispute as to whether the degree of permanent impairment of the injured worker resulting from an injury is sufficient for an award of damages if: (a) the person on whom the claim is made has accepted that the degree of permanent impairment of the injured worker is at least 15%, or (b) an approved medical specialist has given a medical assessment certificate certifying that the degree of permanent impairment of the injured worker is at least 15%. (3) For the purposes of this Part, acceptance by the person on whom a claim for work injury damages is made of the degree of permanent impairment of the injured worker for the purposes of a claim against the person by the injured worker for permanent impairment compensation also constitutes acceptance of the degree of permanent impairment for the purposes of the claim for work injury damages. 326 Status of medical assessments (1) An assessment certified in a medical assessment certificate pursuant to a medical assessment under this Part is conclusively presumed to be correct as to the following matters in any proceedings before a court or the Commission with which the certificate is concerned: (a) the degree of permanent impairment of the worker as a result of an injury, (b) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, (c) the nature and extent of loss of hearing suffered by a worker, (d) whether impairment is permanent, (e) whether the degree of permanent impairment is fully ascertainable. (2) As to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings. 350 Decisions of Commission (1) Except as otherwise provided by this Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review. (2) A decision of or proceeding before the Commission is not: (a) to be vitiated because of any informality or want of form, or (b) liable to be challenged, appealed against, reviewed, quashed or called into question by any court. (3) The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission. 351 Reference of question of law on compensation claim to Commission constituted by Presidential member (1) A question of law arising in proceedings before the Commission constituted by an Arbitrator may, with the leave of the President, be referred by the Arbitrator for the opinion of the Commission constituted by the President. (2) The reference of a question under this section may be made on the application of a party to the proceedings or of the Arbitrator's own motion. (3) The President is not to grant leave for the referral of a question of law under this section unless satisfied that the question involves a novel or complex question of law. (4) If the President refuses to grant leave for the referral of a question of law under this section, the President must state his or her reasons in writing to the parties for the refusal. (5) Despite the reference of a question under this section, the Commission constituted by an Arbitrator may make an award in the matter in which the question arose unless the question is the question of whether the Commission may exercise functions under this Act in relation to a matter. (6) On the determination of a question referred to the Commission under this section: (a) if an award has not been made in the matter in which the question arose, an award may be made that is not inconsistent with the opinion of the Commission on the question, or (b) if an award has been made in the matter in which the question arose, the award must be varied in such a way as will make it consistent with the opinion of the Commission on the question. (7) The reference of a question of law under this section may be by stating a case on a question of law. (8) The President may delegate to a Deputy President any function of the President under this section (except this power of delegation), but only if the President is satisfied that the delegation is necessary to avoid a conflict of interest or the appearance of bias. 352 Appeal against decision of Commission constituted by Arbitrator (1) A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a Presidential member against a decision in respect of the dispute by the Commission constituted by an Arbitrator. (2) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the procedural requirements of this section and any applicable Rules and regulations as to the making of an appeal have been complied with. The Registrar is not required to be satisfied as to the substance of the appeal. (3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both: (a) at least $5,000 (or such other amount as may be prescribed by the regulations), and (b) at least 20% of the amount awarded in the decision appealed against. (3A) There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. (4) An appeal can only be made within 28 days after the making of the decision appealed against. (5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing. (5A) An appeal under this section stays the operation of the decision appealed against pending the determination of the appeal. However, an appeal does not stay or otherwise affect the operation of a decision as to weekly payments of compensation and weekly payments of compensation remain payable despite any appeal. (6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case. (7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission. (7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section. Note. Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success. (8) In this section, decision includes an award, interim award, order, determination, ruling and direction. 368 Members of Commission (1) The Commission consists of the following members: (a) a President, (b) Deputy Presidents, (c) a Registrar, (d) Arbitrators. (2) The members of the Commission are to be appointed by the Minister. (3) The instrument of appointment of a member is to specify whether a member has been appointed as: (a) the President, or (b) a Deputy President, or (c) the Registrar, or (d) an Arbitrator. (4) One or more of the Arbitrators may be appointed as a Senior Arbitrator, either by the instrument of appointment of the Arbitrator or by a later instrument executed by the Minister. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 October 2012