D and W livestock transport v John Ernest Smith

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Angel J
• Judgment Date: 09 September 1993
• Neutral Citation: [1993] NTSC 67
• Docket Number: No. 264/92
• Date: 09 September 1993

[1993] NTSC 67

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

Angel J

No. 264/92

D and W livestock transport

and

John Ernest Smith

Appearances not available

Workers' compensation

ORDER

Appeal dismissed.

JUDGE1

1 Angel J This is an employer's appeal from a decision of the Work Health Court made on 3 September 1992.

2 The respondent's application to that court dated 12 December 1991 and was brought under s189 of the Work Health Act on the basis that on or about 23 February 1985 the worker suffered an injury in the course of his employment and as a result of that injury received a blood transfusion, thereby contracting a disease, namely hepatitis C, which materially contributed to the impairment or incapacity of the worker.

3 The worker claimed, inter alia, future weekly payments, past weekly payments, compensation for permanent impairment and medical, surgical and related expenses.

4 The proceedings in the Work Health Court resulted in an award in the respondent's favour. The learned Magistrate found that the worker had contracted hepatitis C through a blood transfusion received as a result of an injury arising out of or in the course of his employment. An award of $26910.34 for arrears of weekly payments was made and weekly payments of $372.48 were ordered.

5 The employer appealed to this court. The grounds of appeal were:

‘1. That His Worship incorrectly applied Favelle Mort v Murray (1976) 133 CLR 580.

2. That His Worship was in error in concluding that the worker had suffered injury within the meaning of section 3 of the Work Health Act 1986.

3. That His Worship erred in concluding that the worker's claim could be continued under the Work Health Act 1986 after the enactment of section 189(3) of the Work Health Act 1986.

4. That His Worship erred in holding that the evidence established that the Applicant worker had contracted Hepatitis C as a result of a blood transfusion at Katherine Hospital in 1985.

5. That His Worship erred in concluding that the Applicant had establisheed(sic) the facts upon which the opinion of the Applicant's medical expert were based.’

6 The facts as found by the learned Magistrate were as follows (pp3–4 reasons):

‘The worker was born on 14 April 1940 and is 52 years old. He completed the first year of high school in Queensland and was a boilermaker's apprentice for 4 1/2 years but left his apprenticeship with six months to go. Apart from 12 months on a trawler he has spent his adult life as a truck-driver. In gaol the worker tattooed his arms extensively using three needles bound with thread and Indian ink. Out of gaol, he had some colouring done by a professional tattooist. He has had four liaisons with women in 20 years. He has been a very heavy user of alcohol, drinking several cartons of beer a week while on the road.

Late in 1984 the worker came to Katherine and commenced work with the employer there on 14 February 1985. The work was to be mainly cartage of livestock but in that wet season it was mainly truck maintenance and some local runs. On 23 February 1985 the worker was servicing a vehicle. He climbed up onto the vehicle to get some boxes of filters out of the cabin. He reached in and got six boxes which he held in the crook of his left arm which he descended, holding on with his right arm. His foot slipped on a wet fuel tank and he fell a good three feet onto the boxes of filters. He suffered pain all over his stomach area but the impact was mainly on the left. Initial treatment at Katherine Hospital was for broken ribs: he was told to take aspirin and to rest. The pain worsened and he felt nauseated and so he went to Dr Short who admitted him to hospital where the decision was made to remove the spleen. Splenectomy was performed on 26 February 1985 and the employer admits the worker received a blood transfusion. The worker says he received 7 units of blood, and although I have no evidence from the treating doctors I accept this figure. It is not contested. The worker was paid worker's compensation until he returned to work in May 1985. He ceased work with the employer on 26 June 1986 and took up work as a truck driver with various other employers.

The worker continued to drink heavily. On 7 January 1987 the worker was admitted to Charters Towers Hospital in Queensland. He was transferred to Townsville where a duodenal ulcer was diagnosed. He continued drinking. On 24 December 1989 he was again admitted to Charters Towers Hospital with a history of vomiting and passing blood. He developed anaemia and on 26 December he was given two units of blood, one unit the next day and three units on 28 December 1989.

The worker continued to drive, but he reduced his alcohol consumption on medical advice. Finally, in December 1990 when driving between Charters Towers and Tennant Creek, he felt so unwell that he consulted a doctor in Tennant Creek. He was bleeding from the mouth. He was sent to Alice Springs where he was diagnosed as suffering from HCV and cirrhosis of the liver. He ceased work on 10 April 1991 and made out a claim for worker's compensation.’

7 Aside from a threshold objection as to jurisdiction based on a 1991 amendment to s189 of the Work Health Act, the learned Magistrate identified three substantial issues:

(i) had the worker shown on the balance of probabilities that he contracted Hepatitis C during his treatment at Katherine Hospital;

(ii) what was the worker's rate of pay at the relevant date for making calculations, and

(iii) what was the relevant date?

8 Counsel for the appellant grouped the five grounds of appeal into three separate matters. Grounds 1 and 2 relate to one matter and grounds 4 and 5 to another. Ground 3 stands alone. Since counsel dealt with them in this manner I propose to do the same, starting with ground 3.

GROUND 3: S189(3) WORK HEALTH ACT

9 In the proceedings below, the employer made a jurisdictional objection. This objection turned on the 1991 amendment to s189 of the Work Health Act (WHA) which, in effect, limited pre-WHA injury claims that could be made under the WHA.

10 The learned Magistrate found in favour of the worker.

11 Section 189 of the WHA, as amended by the Work Health Amendment Act (No. 3) 1991 is as follows:

‘189. CLAIM, andC., BEFORE OR AFTER COMMENCEMENT OF ACT

(1) Where a cause of action in respect of an injury to or death of a person arising out of or in the course of his employment arose before the commencement of this section, a claim or action (including a claim or action at common law) in respect of that injury or death may be made, commenced or continued after the commencement of this section as if this Act had never commenced and for that purpose the repealed Act shall be deemed to continue in force.

(2) Notwithstanding subsection (1) BUT SUBJECT TO SUBSECTION (3), a person may claim compensation under this Act in respect of an injury or death referred to in that subsection and on his so doing this Act shall apply as if the injury or death occurred after the commencement of this section, and subsection (1) shall have no effect.

(3) NOTHING IN SUBSECTION (2) SHALL BE CONSTRUED AS PERMITTING A CLAIM FOR COMPENSATION TO BE MADE UNDER THIS ACT IN RESPECT OF AN INJURY TO OR THE DEATH OF A PERSON ARISING OUT OF OR IN THE COURSE OF THE PERSON'S EMPLOYMENT BEFORE THE COMMENCEMENT OF THIS ACT WHERE, IN RESPECT OF THAT INJURY OR DEATH, COMPENSATION HAS BEEN PAID —

(a) UNDER THE REPEALED ACT;

(b) UNDER ANY OTHER LAW IN FORCE IN THE TERRITORY RELATING TO THE PAYMENT OF COMPENSATION IN RESPECT OF THE INJURY OR DEATH OF THE PERSON ARISING OUT OF OR IN THE COURSE OF THE PERSON'S EMPLOYMENT; OR

(c) AT COMMON LAW.’

12 The 1991 amendment to s189 is capitalised.

13 The Work Health Amendment Act (No 3) 1991 was assented to on 6 November 1991 and commenced on 1 January 1992. The worker's claim was filed on 12 December 1991.

14 The employer argued that the amendment blocked the claim and the worker argued that the amendment was prospective in operation only. Part of the learned Magistrate's reasons for his conclusion is as follows (pp2–3):

‘My view of the matter was that it was quite unnecessary to look beyond the plain words of the section. Whereas in subsection (1) the Act spoke of a claim or action that might be “made, commenced or continued” the new subsection spoke only of “permitting a claim for compensation to be made”. I accepted that subsection (3) was effective from 1 January 1992 and that henceforth no new claim for compensation could be made unless it was outside the ambit of paragraphs (a), (b) and (c) of the subsection. I held that claims which were already made could be continued to finality. Parliament had allowed time to workers to get their claims lodged between assent and commencement and I could not see any injustice. The employer put it that persons with a common law claim, for example, might be able to “double dip” if my interpretation was correct. That point was not considered by me.’

15 On appeal, counsel for the appellant, Mr Lander QC, submitted that the amendment was retrospective in operation and that the learned Magistrate erred in not so finding. Mr Lander also submitted that the learned Magistrate erred by simply looking at the wording and by not considering the question of ‘double dipping’. In support of his argument, Mr Lander relied heavily on the decision of the then Chief Justice Asche in Cunningham-Beattie v Groote Eylandt Mining Co Pty Ltd (1989) 60 NTR 1.

16 That decision concerned s189 before amendment.

17 In that case the worker had died as a result of an accident occurring at work before 16 December 1986, being prior to the enactment of the WHA. His defacto wife, who did not qualify for compensation under the old Workers' Compensation Act, attempted to claim under the new wider provisions of the WHA via s189(2). The learned Chief Stipendiary Magistrate held...