George Starr v Northern Territory of Australia

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Mildren J
• Judgment Date: 23 October 1998
• Neutral Citation: [1998] NTSC 89
• Docket Number: FILE NO: 20 of 1996 (9403934)
• Date: 23 October 1998

[1998] NTSC 89

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT ALICE SPRINGS

Judgment of:

Mildren J

FILE NO: 20 of 1996 (9403934)

Between:

George Starr

Appellant

and

Northern Territory of Australia

Respondent

REPRESENTATION:

Counsel:

Appellant: Mr G Algy

Respondent: Mr P M Barr

Order:

Appeal dismissed with costs.

REASONS FOR JUDGMENT

1 (Delivered 23 October 1998)

Mildren J

Introduction

2 This is an appeal from the Work Health Court. The appellant worker was employed by the respondent as an orderly at the Alice Springs Hospital. On the 8 ^th November 1990, the appellant injured his lower back in the course of his employment whilst lifting a patient weighing approximately 104 kilograms from the floor to the patient's bed. The appellant continued with his normal duties but experienced discomfort in his lower back. He obtained treatment from a hospital physiotherapist who, on 15 November 1990, recommended light duties for at least the next ten days. On 22 November 1990, the appellant was certified by a medical practitioner as being unfit for work. On 28 November 1990 the appellant made a claim for compensation. Liability for the claim was accepted, and the appellant was paid weekly benefits from 22 November 1990 to 11 April 1991.

3 In the meantime, the appellant's employment with the respondent had been terminated by the respondent as from 27 December 1990 for reasons unconnected with his injury. The appellant sought review of that decision under the Public Service Act, but the decision to terminate his employment was confirmed on 15 February 1991. Because of this, the appellant was not able to return to his former employment when payment of his weekly compensation ceased. The appellant, in his Statement of Claim, claimed still to be partially incapacitated by his injury. The exact nature of his injury was in dispute. The appellant claimed to have suffered a lumbar disc strain at the L5/S1 level. The respondent claimed that he had suffered a right sacro-iliac strain. The learned Magistrate found that there was no lumbar disc strain, but there is no clear finding as to precisely what injury he suffered.

4 After April 1991, the learned Magistrate found that the appellant initially went onto unemployment benefits and other benefits including, apparently, sickness benefits. In May 1992, during a period of new start benefits, he received training at the Alice Springs Tafe College as a barman and as a short order cook. Apart from a two week period doing work experience as a barman, the appellant was not employed at any time between April 1991 and November 1992, and the learned Magistrate found that he had not obtained any employment at all in this period. There is no specific finding as to whether or not the appellant had any physical incapacity for work during this period which may have limited his ability to obtain paid employment. The learned Magistrate dismissed the appellant's claim for weekly compensation during this period because first, the appellant had failed to prove ‘that he had sustained the relevant loss of earning capacity’ (required by s65 of the Act), and secondly, he was not satisfied that the appellant was incapable of obtaining employment due to incapacity through injury. The appellant complains in ground 1 of the notice of appeal that these findings were erroneous in law.

5 At some time in 1992 the appellant, so the learned Magistrate found, obtained the chance of employment of an unspecified kind by an Alice Springs resident. The employment was to be carried out in Cooktown, Queensland. Prior to his departure, a farewell party was arranged by his friends on the 2 ^nd November 1992. The party was held outdoors. Whilst at the farewell, the appellant had placed a can of beer from which he had been drinking, on a log. He bent down to retrieve the can of beer and felt a pain which he said was similar to that experienced in November 1990 and in the same place. His right leg gave way and he fell to the ground. The following morning he consulted his general practitioner who prescribed painkillers. He then left Alice Springs and went to Cooktown. During the next month he investigated the ‘unspecified employment opportunity’. As well, he consulted a medical practitioner and a solicitor. In December 1992 he travelled to Adelaide to seek further medical treatment. At some stage before 14 September 1993, he instructed solicitors in Adelaide to initiate or reopen his workers' compensation claim. On 14 September 1993 his solicitors made a claim for compensation on his behalf. This claim was rejected. The appellant was on sickness benefits from 11 December 1992. After a number of investigations of his back problems, he was referred by an orthopaedic surgeon, Dr Coats, to the Alfred Rehabilitation Centre, an offshoot of the Queen Elizabeth Hospital. Thereafter he underwent extensive treatment between 9 September 1993 to 22 October 1993 and again between 4 October 1994 to 28 October 1994. There is no precise finding as to the level of any incapacity for work during this period. The learned Magistrate found that the appellant suffered double level intervertebral disc protrusions at the L4/L5, L5/S1 levels which were attributed to the ‘beer can’ incident on 2 November 1992 and ‘which were caused in a non-work related work incident’ and that there was no evidence which satisfied him that the injury of 8 November 1990 materially contributed to his incapacity after 2 November 1992. His Worship found that the injury in 1992 was a fresh injury unrelated to his injury in 1990. This finding is challenged in ground 2 of the notice of appeal as an error of law.

6 The errors of law complained of in relation to both periods of alleged incapacity are based on the following propositions. First, it was alleged that the learned Magistrate failed to consider the evidence of the appellant, whose evidence was largely uncontradicted, on the essential factual issues. It was submitted that the learned Magistrate erred because he either made no findings at all based on the appellant's evidence, or, to the extent that he must have rejected his evidence, failed to give any adequate reasons for so doing. This error is complained of in ground 5 of the notice of appeal.

7 The learned Magistrate also found that the appellant had failed to give notice of the claim as soon as practicable and had failed to make a claim within six months of the 1992 injury, and had failed to establish that this failure was due to mistake or other reasonable cause. These findings are challenged in grounds 3 and 4 of the notice of appeal.

8 At the hearing of the appeal, counsel for the appellant sought leave to add a further ground of appeal as follows:

That the learned Special Magistrate erred in his application of the burden of proof regarding causation of the beer can incident. It is submitted that the burden of proving that the beer can incident was a second and unrelated injury, the affects of the work injury having been spent, rested with the respondent.

Grounds 3 and 4 — The Notice Question and Time of Claim Question

9 It is convenient to deal with these grounds first, because it was conceded by counsel for the respondent, Mr Barr, that his Worship erred in rejecting the claim on these grounds.

10 The appellant's case was that the incapacity after the beer can incident was due to the original injury in November 1990. As the appellant had given notice of that injury and made a claim well within time which had been accepted, there could be no question about whether or not the appellant had complied with s80 and s182(1) of the Work Health Act.

11 If the beer can incident in 1992 resulted in a separate injury to the appellant, that injury clearly did not arise out of or in the course of the appellant's employment with the respondent, and therefore was not an ‘injury’ as defined by s3(1) of the Act. If that be so, s80 and s182 were irrelevant to the 1992 incident.

12 Further, the learned Magistrate said (reasons, p18):

The period which elapsed within which no claim was made spanned 11.04.91 to September 1993. That is a period of 2 years and 5 months. S182(1)(a) WHA requires a claim to be made within 6 months. That is proceedings shall be issued within period commencing in the 6 months after the date of the injury, that commences on 8.11.90 and terminates on 08.95.91. The failure to make claim, that is issue proceedings within that period has not been satisfactorily explained. (sic)

13 This clearly is wrong. The learned Magistrate has confused the need to make a claim for compensation vide s82 of the Act with the commencement of proceedings. S182(1) places a six month time limit on the making of a claim under s82. There is no time limit for the bringing of proceedings once a claim has been made within the six month period.

14 If the appellant's incapacity after the beer can incident was caused by the 1990 injury, there was no requirement for the worker to give any further notice, as the relevant injury was the 1990 injury.

15 It is true that no further claim for compensation in respect of any period after April 1991 was made until September 1993, and that on the findings of the learned Magistrate the appellant became incapacitated for work again by no later than soon after November 1992, (if not before then). Having become incapacitated again, there is an argument that, in order to reinstate his weekly payments, the appellant needed to make a second claim under s82. But even if this be so, s182(1) does not preclude the appellant from taking proceedings. S182(1) applies only to claims made outside of a period of six months from the date of the injury, i.e. by not later than 8 May 1991. S182(3) provides that the failure to made a claim within this period is not a bar to the maintenance of proceedings...