Cheryl Anne Newton v Masonic Homes Inc. T/as Tiwi Gardens Nursing Home (ACN 063 954 674)

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Mildren J
• Judgment Date: 28 September 2009
• Neutral Citation: [2009] NTSC 51
• Docket Number: FILE NO: LA 8 of 2008 (20718189)
• Date: 28 September 2009

Between:

Cheryl Anne Newton

Appellant

and

Masonic Homes Inc T/AS Tiwi Gardens Nursing Home (ACN 063 954 674)

Respondent

[2009] NTSC 51

Judgment of:

Mildren J

FILE NO: LA 8 of 2008 (20718189)

SUPREME COURT OF THE NORTHERN TERRITORY

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

APPEAL — appeal from Work Health Court — whether findings were errors of law or errors of fact — appeal limited to errors of law — test to be applied

EVIDENCE — witnesses called to give evidence about duties in occupations — whether expert evidence — whether expert evidence limited to opinion evidence

WORKER'S COMPENSATION — Notice of Termination of weekly benefits — not accompanied by medical certificate — whether medical certificate required — meaning of ‘ceased to be incapacitated for work’ — whether notice provided sufficient detail — whether notice valid — whether notice relevant where worker and employer widen issues by pleadings going beyond an appeal under s 69

WORKER'S COMPENSATION — application in Work Health Court — whether witnesses were non-medical experts — whether evidence wrongly admitted in absence of compliance with Work Health Court Rules — function and purpose of r 18.07 — whether expert evidence limited to opinion evidence — whether if error occurred appeal must be allowed

Alice Springs Town Council v Mpweteyerra Aboriginal Corp (1997) 115 NTR 25; Disability Services of Central Australia v Regan (1998) 8 NTLR 73; Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32; Wilson v Lowery (1993) 4 NTLR 79; applied

Bruce v Cole (1998) 45 NSWLR 163; Horne v Sedco Forex Australia (1992) 106 FLR 373; Lujans v Yarrabee Coal Co Pty Ltd (2008) 83 ALJR 34; distinguished

Gumana v Northern Territory of Australia (2005) 141 FCR 457; (2005) 218 ALR 292; followed

Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171; Burns & Territory Insurance Board [No 2] (2007) 20 NTLR 66; Butera v Director of Public Prosecutions (1987) 164 CLR 180; Collins Radio Construction Inc v Day (1997) 140 FLR 347; (1998) 143 FLR 425; Foresight Pty Ltd v Maddick (1991) 1 NTLR 209; HWE Contracting Pty Ltd v Young (2007) 20 NTLR 83; Ju Ju Nominees Pty Ltdv Carmichael (1999) 149 FLR 425; R v Pfennig [No 1] (1992) 57 SASR 507; Spellman v RSL [2004] NTMC 087; The Queen v Perry (No 4) (1981) 28 SASR 119; Weal v Bottom (1966) 40 ALJR 436; referred to

Workers Rehabilitation and Compensation Act, s 3(1), s 65(2)(b)(ii), s 69, s 69(1), s 69(1)(b), s 69 (1)(b)(vi), s 69(3), s 69(4), s 107, s 110A(3); Work Heath Court Rules, r 18.07, r 18.09

Cross on Evidence, 4 ^th Aust ed, Butterworths, Sydney, 1991- (loose-leaf edition)

REPRESENTATION:

Counsel:

appellant: S Gearin

respondent: J Kelly SC

REASONS FOR JUDGMENT

(Delivered 28 September 2009)

1 This is an appeal from the Work Health Court. The respondent has also filed a Notice of Contention.

2 The appeal was originally heard by Angel J who reserved judgment on 8 April 2009. Since that time, Angel J has fallen ill and has been unable to deliver judgment. By consent of the parties, I have agreed to decide the appeal on the basis of parties' written submissions and the transcript of the oral submissions before Angel J.

Background facts

3 The appellant, who was born on 22 June 1957, was employed by the respondent as a permanent part time Personal Care Assistant. She commenced her employment of 3 July 2004 and on or about 25 November 2004 obtained a Certificate III in Aged Care Work at the Batchelor Institute of Indigenous Tertiary Education. Her duties included showering, toileting, feeding, dressing, lifting and other attendant care of elderly patients, including dementia patients at the respondent's premises at Tiwi Gardens.

4 On or about 14 April 2005, the appellant sustained an injury to her right thumb in the course of her employment. On or about 18 April 2005, the appellant made a claim for compensation under the Work Health Act, now called the Workers Rehabilitation and Compensation Act (the Act). On 26 April 2005, the respondent accepted liability in relation to the claim and commenced payment of work health benefits, namely weekly compensation and medical and rehabilitation benefits. As at the date of her injury, the appellant's normal weekly earnings amounted to $535.80 gross. It is not in dispute that the respondent made and continued to make payments of weekly benefits under the Act until some time around 17 May 2007 when the respondent gave notice of its intention to cease payments of weekly compensation in purported compliance with s 69 of the Act.

5 The learned Magistrate found that the respondent's notice was invalid because:

• 1. it was not accompanied by the medical certificates required by s 69(3) of the Act; and

• 2. because the notice did not provide sufficient detail to enable the appellant to understand fully why the amount of compensation was being cancelled, as required by s 69(4).

6 The learned Magistrate found that ‘while… on that basis the worker would be entitled to reinstatement of benefits, the Court must consider the Worker's further claim in relation to her consequential injuries and the Employer's counterclaim’.

7 The respondent's notice of contention challenges the findings of the learned Magistrate that the notice of termination of benefits was invalid on either of the grounds found by the learned Magistrate and it is convenient to deal with this issue first.

The validity of the notice of termination of benefits

8 Section 69(3) of the Act provides:

‘Where compensation is to be cancelled for the reason that the worker to whom it is paid has ceased to be incapacitated for work, the statement under subsection (1) shall be accompanied by a medical certificate of the medical practitioner certifying that the person has ceased to be incapacitated for work.’

9 The respondent submitted that the terms of the notice given did not assert that the appellant ceased to be incapacitated for work, but relied upon an assertion that the appellant had the capacity to earn at least $600 per week as a teacher's aide, that pursuant to s 65(2)(b)(ii) of the Act, the appellant's weekly benefits were reduced to 75 per cent of the difference between the appellant's indexed and normal weekly earnings and her ‘earning capacity’ and that this amounted to nil.

10 During the hearing before Angel J, counsel for the respondent pointed to the definition of ‘incapacity’ in s 3(1) of the Act in which that word is defined to mean ‘an ability or limited ability to undertake paid work because of an injury’. The submission was that the appellant was not totally incapacitated; she still had a partial incapacity, but because of the operation of s 65(2)(b)(ii) of the Act, her incapacity no longer entitled her to weekly compensation under s 65 of the Act (which deals with weekly compensation after the first 26 weeks of incapacity).

11 Counsel for the appellant submitted that the point was covered by the decision of the Court of Appeal in Ju Ju Nominees Pty Ltd v Carmichael. 1 The learned Magistrate relied upon the decision in Collins Radio Construction Inc v Day. 2 The effect of these decisions (as well as others) was summarised by B F Martin CJ in Ju Ju Nominees Pty Ltd v Carmichael 3 that where the employer cancels payments of weekly payments by reason of the fact that the worker has ceased to be incapacitated for work, a notice given under s 69(1) must sufficiently state the reason and be accompanied by the medical certificate referred to in s 69(3). However, a worker may be

partially incapacitated for work but the incapacity may not be productive of financial loss entitling the worker to ongoing weekly compensation. 4 The respondent's submission relies on this difference. The question then is whether s 69(3) should be interpreted so that the expression ‘ceased to be incapacitated for work’ means no longer totally incapacitated, or whether it bears some other meaning, such as ‘no longer had an ability or limited ability to undertake paid work because of an injury’

12 Some light on this question may be found in the history of s 69. As that provision was originally drafted, it provided that ‘except where… the person receiving it ceases to be incapacitated …an amount of compensation shall… not be cancelled or reduced unless the worker to whom it is payable has been given… 14 days notice of the intention to cancel or reduce…’ etc. The expression ‘ceases to be incapacitated’ was then understood to mean in its context ‘ceases to be totally incapacitated’. 5 This was because s 69 as then drafted contemplated that if the amount of compensation was to be reduced because the worker was partially incapacitated, notice under s 69 had to be given, but not if the worker ‘ceased to be incapacitated’.

13 However, s 69 as presently drafted is quite different. In my opinion, the words ‘ceased to be incapacitated for work’ take a meaning which accords with the definition of ‘incapacity’. Thus, if the worker was totally incapacitated and was receiving weekly benefits based on total incapacity

and it is asserted that the worker is no longer totally incapacitated, the relevant medical certificate is required. Similarly, if the worker was partially incapacitated and was receiving weekly benefits and the employer asserts that he is no longer partially incapacitated, the medical certificate is also required by s 69(3)

14 However, this does not entirely dispose of the respondent's argument. The worker may be partially incapacitated, but may make a partial recovery so as to be fit for some work which, because of the operation of s 65, results in the worker no longer being entitled to a weekly benefit. I do not think it is stretching the words of s 69(3) beyond what they are capable of...