BAE Systems v Mark Edwin Rothwell

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Blokland J
• Judgment Date: 31 July 2012
• Neutral Citation: [2012] NTSC 52
• Docket Number: FILE NO: LA 5 of 2011 (20917242)
• Date: 31 July 2012

[2012] NTSC 52

SUPREME COURT OF THE NORTHERN TERRITORY

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

Judgment of:

Blokland J

FILE NO: LA 5 of 2011 (20917242)

Between:

BAE Systems

Appellant

and

Mark Edwin Rothwell

Respondent

REPRESENTATION:

Counsel:

Appellant: Mr Walsh QC

Respondent: Mr Lindsay

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR; Griffiths v Kerkemeyer (1977) 139 CLR 161; Griffiths v Kerkemeyer (1989) 52 SASR 102; Grincelis v House [2000] 201 CLR 321; Keating v Global Insulation Contractors [2011] NTMC 02; Kennedy Cleaning v Petkoska (2000) 200 CLR 286; Maddalozzo v Maddick (1992) 84 NTR 27; Metro Meat Ltd v Banjanovic (1989) 52 SASR 102; NSW Sugar Milling Co-operative Ltd v Manning (1998) 16 NSW CCR 606; Richfort Pty Ltd v Baluyut (1999) 9 NTLR 58; Wormald International v Aherne NTSC; Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; referred to

Interpretation Act s 55, s 62,

Supreme Court Rules o 63,

Workers Compensation Act (SA)

Work Health Court Rules r 23,

Workers Rehabilitation and Compensation Act s 3, s 4, s 53, s 65, s 75, s 78, s 85, s 87, s 89, s 109, s 116,

WORKERS COMPENSATION — Appeal against order by Work Health Court — past gratuitous attendant care services amount to ‘costs incurred’ — unreasonable delay by employer — rate of interest under s 109(1) — award for punitive damages under s 109(3) discretionary — whether costs to be paid on solicitor and client basis

Appeal allowed on question of punitive damages and costs; otherwise dismissed.

REASONS FOR JUDGMENT

(Delivered 31 July 2012)

Introduction

1 This is an appeal by the employer, BAE Systems, against Orders made on 27 September 2011 in the Work Health Court. An appeal from an order of the Work Health Court is confined to questions of law. 1

2 The relevant background concerning the injury and proceedings is set out in the learned Work Health Magistrate's Reasons for Judgement. 2 The summary of evidence in His Honour's reasons is primarily focused on the

evidence that was given by the respondent worker's wife. 3 The respondent's wife and various of their 11 children provided attendant care services for the worker over all periods when he was not an in-patient in a hospital or rehabilitation centre, from about 29 September 2008. His wife also provided those services while the worker was a hospital in-patient from 29 May 2008 to September 2008. The care was described as involving a significant number of hours each day to feed him, clean him (with reference to double incontinence), dress, prepare meals, assist with eating, physiotherapy and a significant range of personal assistance necessary as a result of physical and cognitive disabilities arising from the work injury

3 The range of personal services were provided gratuitously, without contract or other arrangement for reimbursement for the value of the services provided.

4 Broadly, the appeal concerns the question of the employer's liability to pay for the value of the past attendant care services gratuitously provided by the wife and family members as well as various awards of interest, punitive damages and an award for solicitor/client costs. In relation to the past attendant care the employer was ordered to pay the sum of $274,680. That sum was agreed between the parties subject to the Work Health Court ruling on whether as a matter of law, s 78 of the Workers Rehabilitation and Compensation Act (the Act) required the compensation be paid.

5 The Work Health Court ordered the respondent worker was entitled to past attendant care services pursuant to s 78 of the Act calculated over the period 22 May 2008 to 6 September 2011. Future payments for attendant care have been agreed. As to ongoing attendant care an Order was made by the Work Health Court that the appellant employer pay the equivalent of 13 hours per day attendant care at commercial rates while family members provide care.

6 The appeal challenges the following orders made for interest and punitive damages: an order for interest pursuant to s 109(1) of the Act on the sum of $274,680 calculated over the period 19 August 2008 to 6 September 2011 inclusive, at the rate of 20 percent per annum 4; an order for interest pursuant to s 109(1) of the Act on the worker's entitlement to past weekly benefits pursuant to s 65 of the Act which accrued over the period 19 August 2008 to 9 September 2008 inclusive, calculated at the rate of 20 percent per annum 5; an order for punitive damages pursuant to s 109(3) of the Act in respect of the past attendant care services agreed in the sum of $274,680, fixed at 100% of the amount of interest calculated in accordance with s 109(1) interest; 6 and an order for punitive damages pursuant to s 109(3) of the Act in respect of the worker's past weekly benefits which accrued over the period 19 August 2008 to 9 September 2008, fixed at 100% of the amount calculated in accordance with s 109(1) interest. 7

7 Finally, it is argued the Work Health Court was in error to order the employer pay the worker's costs on the solicitor and client basis.

The conclusion of the Work Health Court that past gratuitous attendant care services amounted to ‘costs incurred’ under s 78 Workers Rehabilitation and Compensation Act.

8 As well as the parties agreeing the value of past gratuitous attendant care services for the relevant period at $274,680, both parties accepted the services provided were reasonable and necessary. 8 His Honour determined the past services provided amounted to ‘costs incurred’ as he construed s 78 of the Act.

9 For comprehension of these reasons and to properly appreciate the context of particular words within s 78 Workers Rehabilitation and Compensation Act, it is useful to set out the section in its entirety:

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...