Jason Richard Hand v Alcan Gove Pty Ltd (ACN: 000 453 663)

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Mildren J
• Judgment Date: 18 June 2008
• Neutral Citation: [2008] NTSC 25
• Docket Number: FILE NO: LA 9 of 2007 (20614894)
• Date: 18 June 2008

[2008] NTSC 25

SUPREME COURT OF THE NORTHERN TERRITORY

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

Judgment of:

Mildren J

FILE NO: LA 9 of 2007 (20614894)

Between:

Jason Richard Hand

Appellant

and

Alcan Gove Pty Ltd (ACN: 000 453 663)

Respondent

REPRESENTATION:

Counsel:

Appellant: C McDonald QC

Respondent: P Barr QC

Citations:

Followed:

Lindeman v Colvin (1946) 74 CLR 313

Referred to:

Canute v Comcare (2006) 226 CLR 535

Commonwealth v Oliver (1961) 107 CLR 353

D & W Livestock Transport v Smith (1994) 4 NTLR 169

D & W Livestock Transport v Smith (unreported, 9 September 1993)

Haider v J P Morgan Holdings Aust Ltd t/a J P Morgan Operations Ltd [2007] NSWCA 158

Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473

Henderson v Commissioner for Railways (WA) (1937) 58 CLR 281

Herbert v K P Welding Construction Pty Ltd (unreported, 13 July 1995)

K P Welding Construction Pty Ltd v Herbert (1995) 102 NTR 20

Kavanagh v The Commonwealth (1959–1960) 103 CLR 547

Migge v Wormald Bros Industries Ltd [1972] 2 NSWLR 29

Nunan v Cockatoo Docks & Engineering Co Pty Ltd (1941) 41 SR (NSW) 119

Roncevich v Repatriation Commission (2005) 222 CLR 115

S v Crimes Compensation Tribunal [1998] 1 VR 83

Tracy Village Sports & Social Club v Walker (1992) 111 FLR 32

Weston v Great Boulder Gold Mines Ltd (1964) 112 CLR 30

Wilson v Lowery (1993) 4 NTLR 79

Statutes:

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Work Health Act 1986, s 53(1)

Work Health Act, s 3(1), s 4, s 4(1), s 53, s 53(1), s 70, s 71, s 71(1), s 72(2), s 72(3), s 72(3A), s 72(4), s 80(1)

Work Health Amendment Act (No 2) 1991 Amendment Act, s 2, s 3, s 14(1)

Work Health Amendment Act (No 2) 1991, s 11, s 14

Work Health Regulations, Regulation 94

Workers Compensation Act 1949 (NT)

References:

American Medical Association Guides to the Evaluation of Permanent Impairment (4 ^th Edition) June 1993, AMA, Chicago

WORK HEALTH — Statutory Interpretation — injury arising out of and in the course of his employment — whether amending provision prospective or retrospective in effect — causal connection — compensation for permanent impairment — lump sum entitlements — whether injury in the course of treatment amounts to new injury — appeal dismissed

REASONS FOR JUDGMENT

(Delivered 18 June 2008)

Introduction

1 This is an appeal from the Work Health Court. The appeal raises questions concerning the construction to be given to various provisions of the Work Health Act (the Act) concerning compensation for permanent impairment and lump sum entitlements.

Factual Background

2 The basic facts of this case are derived from the pleadings. On or about 30 April 1990 the appellant commenced employment with the employer as a utility serviceman within its maintenance department at Nhulunbuy. On orabout 8 August 1991, the appellant sustained an injury to his left knee joint. It is not pleaded how this injury occurred nor that the injury arose out of or in the course of his employment, but in any event the appellant made a claim for compensation under the Act which was accepted by the respondent.

3 On 22 August 1991 as a consequence of the injury the appellant underwent a lateral meniscectomy to his left knee performed by an orthopaedic surgeon, Mr S Baddley, as a result of which the torn medial meniscus was removed.

4 On 15 October 1991, s 11 of the Work Health Amendment Act (No 2) 1991 (the 1991 Amendment) came into force, which amended s 71 of the Act. The effect of the amendment was to lower the threshold for a permanent impairment entitlement from 15 per cent of the whole person to 5 per cent and of doubling the multiplier of average weekly earnings from 104 times average weekly earnings to 208 times average weekly earnings.

5 On 8 April 1992, the Work Health Amendment Act (No 2) 1991 Amendment Act (the 1992 Amendment) was assented to. Section 2 of the 1992 Amendment deemed the 1992 Amendment to have come into force immediately before the commencement of the 1991 Amendment. Section 3 of the 1992 Amendment repealed s 14 of the 1991 Amendment and substituted, therefore, a new s 14 which provided, by subsection (1), that s 11 of the 1991 Amendment applied only to and in relation to an injury suffered by a worker after the commencement of the 1991 Amendment on 15 October 1991.

6 As a consequence of the original injury, in January 1992 the appellant underwent a ligament reconstruction of the left knee with ligament staple fixation. As a further consequence of the original injury, on 2 September 1992 the appellant underwent further arthroscopy of the left knee with chondroplasty and removal of the staples from the previous reconstruction. On 13 February 1993, as a consequence of the original injury, the appellant underwent further surgery involving a left and anterior cruciate reconstruction in which the surgeon used a segment of the patella tendon to reconstruct the anterior cruciate ligament. Further procedures were conducted on the left knee in May 1995 and July 1995.

7 In September 1995 an orthopaedic surgeon advised that as a consequence of the original injury the appellant had 15 per cent permanent impairment of the whole person. Shortly thereafter the respondent paid the appellant the sum of $9,901.32, purportedly being the amount of compensation for permanent impairment required by s 71(1) of the Act. This sum was calculated by taking 15 per cent of 104 (weeks) x $634.70 (average weekly earnings in 1995).

8 In April 1997, May 2000 and August 2001 as a consequence of the original injury, the appellant underwent further surgery to the left knee in order to improve the appellant's function. The last of these procedures was a lower femoral osteotomy of the left knee involving extensive fixation by means of plates and screws. In July 2002 an orthopaedic surgeon, Dr Marshall, assessed the appellant as then suffering a 30 per cent permanent impairment of the whole person as a consequence of the original injury. Subsequently the respondent paid the appellant compensation based on the formula 30 per cent of 104 (weeks) x $817.60 (the average weekly earning as at the time of payment).

9 On 12 February 2004, as a consequence of the original injury, the appellant underwent a total left knee replacement. The respondent paid all of the appellant's medical, hospital, radiological, anaesthetists', surgical, rehabilitation and pharmaceutical expenses from 28 August 1991 to 12 February 2004 in accordance with its obligations under the Act.

The First Ground of Appeal

10 In the Work Health Court the appellant submitted that he was entitled to further compensation based on an assessment of his permanent impairment at 30 per cent of the whole person, based on the formula 30 per cent of 208 (weeks) x $1,039.00 (being average weekly earnings in 2006) amounting to $64,833.60 or $42,177.72 after taking into account the payments already made under s 71. The basis of this claim is that each of the surgical procedures which the appellant has undergone since 1991 is, in itself, an injury and there must be compensated for in accordance with the 1991 Amendment as amended by the 1992 Amendment. The learned Magistrate rejected this submission holding that surgery as a consequence of the original injury in 1991 is not in itself an ‘injury’ as defined by the Act and even if the surgery were to be treated as an ‘injury’ as defined, it was so causally connected with the original injury that it could not be regarded as a new and independent injury.

The Appellant's Contentions — Ground 1 of the Appeal

11 The appellant submitted that each of the subsequent surgical interventions

was a new injury. In support of that contention counsel for the appellant relied upon the decision of Angel J in D & W Livestock Transport v Smith 1. In that case a worker suffered an injury arising out of or in the course of his employment in February 1985 resulting in broken ribs and a splenectomy. During the course of the splenectomy the worker became infected by Hepatitis C as the result of a blood transfusion. Initially the worker recovered from the treatment he received and was able to return to work in May 1985. He was paid compensation up to then under the Workers Compensation Act 1949 (NT) (the former Act). In 1986 he changed his employer. In 1996 it was discovered that he had contracted Hepatitis C as a result of the transfusion and he claimed compensation under the Work Health Act 1986 which had repealed and replaced the former Act. It was common ground that as at 1986 the worker could have brought his claim under the Work Health Act or under the former Act, but an amendment passed in 1991 before the further claim was made prevented claims being made under the Work Health Act where compensation had already been paid in respect of an injury under the former Act. The worker had lodged his claim in December 1991. The 1991 Amendment to the Work Health Act did

not come into force until 1 January 1992. Angel J held that the 1991 Amendment was procedural only and operated retrospectively. However, his Honour held that the 1991 claim was a claim for a new injury which had not been compensated for and therefore it was able to proceed under the Act

12 On appeal, the Court of Appeal 2 dismissed the appeal, holding that the 1991 Amendment was not procedural and did not operate retrospectively. It was therefore not necessary to consider whether Angel J was correct in finding that the contraction of Hepatitis C was a new injury. However, Priestley J, with whom Gray AJ agreed, observed 3:

‘It has been recognised for many years in workers compensation law that when a surgical procedure, such as the splenectomy in the present case, has been carried out to remedy or alleviate an injury compensable...