Keith Van Dongen v Northern Territory of Australia

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Southwood J
• Judgment Date: 23 January 2009
• Neutral Citation: [2009] NTSC 1
• Date: 23 January 2009
• Docket Number: FILE NO: No 22 of 2007 (20104578)

[2009] NTSC 1

SUPREME COURT OF THE NORTHERN TERRITORY

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

Judgment of:

Southwood J

FILE NO: No 22 of 2007 (20104578)

Between:

Keith Van Dongen

Appellant

and

Northern Territory of Australia

Respondent

REPRESENTATION:

Counsel:

Appellant: I Morris

Respondent: S Gearin

Burns v The Commissioner of Railways (1939) WCR 115

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

Maddalozzo v Maddick (1992) 84 NTR 27

Perfect v Northern Territory of Australia (1993) 107 FLR 428

Prime v Colliers International (NT) Pty Ltd (2006) 204 FLR 220

Rivard v Northern Territory of Australia (1999) 129 NTR 1

Van Dongen v Northern Territory [2005] NTSC 4

Van Dongen v Northern Territory of Australia (2005) 16 NTLR 169

Van Dongen v NTA (No. 2) [2007] NTMC 59

Wattyl Australia Pty Ltd v York Unreported NTSC Angel J 4/7/1997

Workers Rehabilitation and Compensation Act (NT) ss3, 80 (1) (2), 81(d), 103, 182(3)

Crimes (Victims Assistance) Act (NT)

WORKERS COMPENSATION — mental injury — appeal against judgment delivered by Work Health Court — claim for compensation confined to physical injuries, no evidence contributed to mental injury — employer given no notice of date on which mental injury occurred — appeal dismissed.

REASONS FOR JUDGMENT

(Delivered 23 January 2009)

Introduction

1 This is an appeal 1 against a judgment of the Work Health Court dismissing the appellant's application for workers compensation for a mental injury which was said to have arisen as a result of various assaults that the appellant sustained during the course of his employment as a police officer in the Northern Territory Police Force. The judgment appealed from was delivered by the Work Health Court on 31 August 2007.

2 The appellant seeks the following orders:

• • The findings of the learned magistrate are set aside.

• • A finding that the injury of July 1999 was the sequelae of the five assaults sustained by the worker in the course of his employment.

• • In the alternative, a finding that the injury of July 1999 was a new injury.

• • In the further alternative, a finding that the injury of July 1999 was materially contributed to by each of the five assaults.

• • A finding that the worker was entitled to payments of compensation.

• • The worker is entitled to costs of the appeal and the hearing at first instance.

Background to the appeal

3 As this is the second appeal that the appellant has brought to this Court in relation to application No. 20104578, which he filed in the Work Health Court on 21 March 2001, it is necessary to set out the background to the appeal in some detail.

4 From 20 January 1986 to 24 June 1998, the appellant was employed as police officer in the Northern Territory Police Force. He was based at a number of different police stations, some more remote than others, including Maningrida, Alice Springs and Yulara. He performed operational duties. During the course of his employment the appellant was assaulted on a number of occasions. Of relevance to this appeal, he was assaulted 12 August 1996 (the first Curtis incident), 9 November 1996 (the second Curtis incident), 23 April 1997, and 2 February 1998 (the Jingo incident).

5 On 12 August 1996 the appellant and another police officer travelled to Mutitjulu where they attempted to arrest an offender, Bob Curtis, who was armed with an offence weapon. They were unsuccessful. As a result of the first Curtis incident the appellant suffered a mental injury. He did not suffer any physical injuries. On 9 November 1996 while arresting Bob Curtis the appellant was punched to the stomach and scratched. He was also kicked in the arm and the offender threatened him and his children. He received cuts and bruises. On 23 April while attempting to arrest an offender, the appellant was bitten on his thumb by the offender and he suffered two puncture marks. On 2 February 1998 while attempting to arrest an offender, whose name was Jingo, the worker received injuries to his leg, chest and hands. The offender, who was armed with a knife, resisted arrest and he punched the appellant to the chest and shoulder area about five times.

6 On 13 August 1996, the appellant made an Accident/Injury Report to the respondent in which he notified the respondent that on 12 August 1996, he had been assaulted by one Bob Curtis at Mutitjulu and as a result of the assault he had suffered a psychological injury to his mind. The appellant did not lodge a claim for workers compensation for the mental injury he sustained on 12 August 1996 in the prescribed form until 27 November 2000. Instead, on 11 August 1997, he made a claim for compensation, under the Crimes (Victims Assistance) Act (NT).

7 After each of the assaults on 9 November 1996, 23 April 1997, and 2 February 1998 the appellant made a separate claim for worker's compensation being respectively claims no. 92556, 92558 and 95770. He did so before he left the Northern Territory Police Force. Each of the appellant's claims for workers compensation only referred to the physical injuries that he suffered as a result of the relevant assault. No reference was made to any mental injury. Each claim for workers compensation was accepted by the respondent.

8 Until he resigned from the Northern Territory Police Force, the appellant continued to perform operational duties. He did so despite being partially incapacitated for operational duties as a result of the mental injury he suffered on 12 August 1996. Although he knew he was partially incapacitated for work, the appellant elected to remain in the role of an operational police officer and to receive the increased entitlements which the position attracted. The appellant did not tell the respondent that he had been partially incapacitated for work as a result of his mental injury and he did not undergo any medical or other treatment for his mental injury while he remained in the Northern Territory Police Force.

9 On 2 September 1997, more than a year after he sustained his mental injury, the appellant was assessed by a psychologist, Mr Michael Tyrrell, for the purposes of his application under the Crimes (Victims Assistance) Act. Mr Tyrrell diagnosed that as a result of the assault on 12 August 1996, the appellant was suffering from an Adjustment Disorder with mixed emotions including depression. It was Mr Tyrrell's opinion that the appellant may require counselling and medical oversight to address his symptoms. Further, without such assistance, the appellant's mental condition was at risk of consolidating into a more substantial and impairing depressive syndrome. On 25 September 2007, Mr Tyrrell provided the appellant's then solicitors with his report.

10 On 26 September 1997, Mr Tyrrell wrote a letter to the appellant's general practitioner, Dr Ross Pertkin, enclosing a copy of his report to the appellant's solicitors. Mr Tyrrell recommended to Dr Pertkin that the appellant should give consideration to his career options and, if his mood did not change, obtaining further mentoring and, if necessary, a medical approach to his condition.

11 On 18 February 1998, the appellant again saw Mr Michael Tyrrell. He told Mr Tyrrell: he planned to leave the Northern Territory Police Force; he had received broken ribs as a result of the Jingo assault; he did not want to get hurt again; his symptoms were not a problem but he felt angry; and he had learned to be more cautious.

12 In April 1998, the appellant took three months leave and he travelled to Perth in Western Australia. He resigned from the Northern Territory Police Force on 9 June 1998. He did so while he was on leave. His resignation took effect on or about 24 June 1998. The appellant subsequently obtained employment in Perth as an investigator with the Public Advocates Office.

13 Between June 1998 and July 1999 the appellant's mental state fluctuated up and down. His mental state deteriorated in or about July 1999 as he was suffering from severe depression. His general practitioner in Perth referred him to a psychiatrist, Dr Peter Blythe, for treatment of his depression. He was prescribed anti-depressant medication and in August 1999 the appellant was admitted to the Perth Clinic for two weeks for treatment of his mental state. He completed a Cognitive Behavioural Therapy Program. In October 1999, the appellant re-presented at the Perth Clinic for a follow up treatment session. On 19 November 1999, he again presented at the Perth Clinic for a 12 week follow up session and he continued to take anti-depressant medication for his mental condition.

14 On 7 December 1999, the appellant wrote a letter to the Territory Insurance Office in the following terms:

[…]

I have left the employment of the Northern Territory Police Service as of 28/06/1998. I now reside in Perth, […]. In the last years of my service I was subject to a number of assaults which eventually led me to resigning from the Police Service. In total there were 6 claims to the T.I.O. for assaults to me. The last of those assaults occurred on 02/02/1998. Your claim number 104029 refers. I can provide the other claim numbers if required.

Since leaving the Police Service I have needed to seek the help of medical professionals in coping with the effect these assaults have had on me. To date I have paid for these services myself. It has become apparent to me that the need to seek such professional help is a direct result of these assaults, in particular the above mentioned one of 02/023/199. As such, I ask that you re-open your file and accept payment for the further medical expenses associated with this matter.

[…]

The last correspondence I had with the T.I.O. regarding this matter is attached for your information. It is dated 17/04/1998. At that...