BAE Systems Australia Ltd v Rothwell

• Jurisdiction: Northern Territory
• Court: Court of Appeal
• Judge: Riley CJ,Mildren J,Kelly J
• Judgment Date: 01 March 2013
• Docket Number: FILE NO: AP7 of 2012 (20917242)
• Date: 01 March 2013

[2013] NTCA 3

COURT OF APPEAL OF THE NORTHERN TERRITORY

IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Riley CJ, Mildren and Kelly JJ

FILE NO: AP7 of 2012 (20917242)

Between:

Bae Systems Australia Ltd

Appellant

and

Mark Edwin Rothwell

Respondent

REPRESENTATION:

Counsel:

Appellant: S Walsh QC and D McConnel

Respondent: A Wyvill SC and B Haack

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27

Balfour v Balfour [1919] 2 KB 571

Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225

Griffiths v Kerkemeyer (1977) 139 CLR 161

Hawkins v Bank of Chicago (1992) 7 ACSR 349

J-Corp Pty Ltd v Australian Builders Labourers Federation Union of Workers [No2] (1993) 46 IR 301

Litherland Urban District Council v Liverpool Corporation (1958) 1 WLR 913

MacDonald v Travelers Indemnity Co of Canada (1987) 42 DLR (4th) 204

Northern Rivers Charity Racing Association v Lloyd [2002] NSWCA 129

NSW Sugar Milling Cooperative Ltd v Manning (1998) 44 NSWLR 442

Ragata Developments Pty Ltd v Westpac Banking Corporation (Unreported, Federal Court of Australia, 5 March 1993)

Re Rhodes (1890) 44 Ch D 94

Smith (Committee of) v Wawanesa Mutual Insurance Co (1998) 168 DLR (4th) 750

Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328

Woodruffe v Northern Territory of Australia (2000) 10 NTLR 52

Interpretation Act 1978 (NT) s 62A

Supreme Court Rules o 63.28

Workers Compensation Act 1987 (NSW) s 60, s 60AA

Workers Rehabilitation and Compensation Act 2008 (NT) (formerly

Work Health Act 1986 (NT)) s 73, s 78, s 109

Work Health Court Rules 1999 (NT) r 23.02, r 23.03

WORKERS' COMPENSATION — Entitlement to “costs incurred” for “other rehabilitation” — Whether past gratuitous attendant care services amount to “costs incurred” — Workers Rehabilitation and Compensation Act 2008 (NT) s 78(1).

STATUTORY INTERPRETATION — Plain meaning — Purposive interpretation — Interpretation of “beneficial” legislation — Ambiguity — Whether phrase “costs incurred” ambiguous — Whether other interpretations open where plain meaning is clear — Workers Rehabilitation and Compensation Act 2008 (NT) s 78(1).

COSTS — Discretion to make costs orders — Solicitor and client costs — Whether open to Work Health Court to award costs on solicitor and client basis — Work Health Court Rules 1999 (NT) r 23.02, r 23.03.

COSTS — Indemnity costs — Principles regarding award of indemnity costs — Employer's duty to consider claim promptly — Unreasonable delay by employer — Workers Rehabilitation and Compensation Act 2008 (NT) s 109 — Supreme Court Rules o 63.28.

REASONS FOR JUDGMENT

(Delivered 1 March 2013)

Riley CJ

Introduction

1 On 28 May 2007 the respondent (the “worker”) suffered a compensable injury for the purposes of the Workers Rehabilitation and Compensation Act 2008 (NT) (the Act) 1 in the course of his employment with the appellant (the “employer”). When the matter eventually came on for hearing in 2011, liability to pay compensation was conceded by the employer. The argument before the Work Health Court focused on the extent of the entitlement available to the worker under the Act.

2 The injury suffered by the worker was described as a “sudden bleeding into his brain” which resulted in him being left with “severe and permanent cognitive and physical disabilities due to brain damage.” 2 The worker was, at the time of suffering the injury, a married man with 11 children. In the proceedings his wife was his litigation guardian. She gave evidence as to the attendant care services provided to the worker by herself and her children. Those attendant care services included feeding the worker, cleaning him (he was noted to be “doubly incontinent”), 3 dressing him, preparing his meals and assisting him to eat, providing physiotherapy and exercise and services of those kinds. In relation to those services the magistrate made the unchallenged finding that they were:

[A]n essential part of his rehabilitation directed to recovering and maintaining his health generally, and his flexibility and his capacity to stand or transfer himself from bed to chair to car etc — his physical condition — and to keep him clean and content and as involved as possible with his family and to continue to live at home — his social condition. 4

3 The magistrate concluded that the services were provided by the family members gratuitously and “without any contract or other binding arrangement to reimburse them for the value of the services provided.” 5

4 The parties before the Work Health Court agreed that, if a statutory basis was found for the worker to recover the value of past gratuitous attendant care services, the value of those services was $274,680. There was no dispute that the worker suffered a permanent incapacity and that the services provided by the family were both reasonable and necessary.

5 The worker claimed compensation for the past gratuitous attendant care services pursuant to the provisions of s 78 of the Act which is in the following terms:

78 Other rehabilitation

• (1) Subject to this section, in addition to any other compensation under this Part, an employer shall pay the costs incurred for such home modifications, vehicle modifications and household and attendant care services as are reasonable and necessary for the purpose of this Division for a worker who suffers or is likely to suffer a permanent or long-term incapacity.

• (2) Without limiting the matters which may be taken into account in determining what are reasonable and necessary home modifications, vehicle modifications and household and attendant care services in a particular case, there shall be taken into account:

  • (a) in relation to home modifications:

    • (i) the cost, and the relevant benefit to the worker, of the proposed modifications;

    • (ii) the difficulties faced by him or her in:

      • (A) gaining access to;

      • (B) enjoying reasonable freedom of movement in; or

      • (C) living independently in,

      his or her home without the proposed modifications;

    • (iii) the likely duration of his or her residence in the home;

    • (iv) where the home is not owned by the worker, the permission of the owner;

    • (v) the likely cost of reasonable alternative living arrangements; and

    • (vi) the likely psychological effect on the worker of not having the proposed modifications made;

  • (b) in relation to vehicle modifications:

    • (i) the cost and relevant benefit to the worker of the proposed modifications;

    • (ii) the difficulty faced by him or her in:

      • (A) driving or operating;

      • (B) gaining access to; or

      • (C) enjoying freedom and safety of movement in,

      the vehicle without the proposed modifications;

    • (iii) alternative means of transport available to him or her; and

    • (iv) the effect of the modifications on his or her likelihood of obtaining and retaining gainful employment;

  • (c) in relation to household services:

    • (i) the extent to which household services were provided by the worker before the relevant injury and the extent to which he or she is able to provide those services after that date;

    • (ii) the number of household family members, their ages and their need for household services;

    • (iii) the extent to which household services were provided by other household family members before the relevant injury;

    • (iv) the extent to which other household family members or other family members might reasonably be expected to provide household services for themselves and for him or her after the relevant injury; and

    • (v) the need to avoid substantial disruption to the employment or other activities of the household family members; and

  • (d) in relation to attendant care services:

    • (i) the nature and extent of the worker's injury and the degree to which that injury impairs his or her ability to provide for his or her personal care;

    • (ii) the extent to which such medical services and nursing care as may be received by him or her provide for his or her essential and regular personal care;

    • (iii) where he or she so desires, the extent to which it is reasonable to meet his or her desire to live outside an institutional environment;

    • (iv) the extent to which attendant care services are necessary to enable him or her to undertake or continue employment;

    • (v) any assessment made, at the request of the insurer, by persons having expertise in the worker's rehabilitation;

    • (vi) any standard developed or applied by a government department or public authority in respect of the need of disabled persons for attendant care services; and

    • (vii) the extent to which a relative of the worker might reasonably be expected to provide attendant care services to him or her.

• (3) An employer shall not be liable to pay the costs incurred for home modifications except where the worker for whose benefit the modifications are or are to be carried out is severely impaired in his or her mobility or ability to live independently within the home.

• (4) In this section attendant care services, in relation to an injured worker, means services (other than medical and surgical services or nursing care) which are required to provide for his or her essential and regular personal care.

6 The employer argued that the worker was not entitled to compensation under the section because the words “pay the costs incurred for such … attendant care services” required that there be costs that had been incurred before an entitlement to compensation arose. It was submitted that s 78 is to be construed as an indemnity provision and, as the past attendant care services were provided gratuitously by members of the family, such costs were not recoverable under this section.

7 The magistrate found to the contrary. His Honour held that the...