Keith Van Dongen v Northern Territory of Australia

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Angel J
• Judgment Date: 11 February 2005
• Neutral Citation: [2005] NTSC 4
• Docket Number: FILE NO: No. AS 6 of 2004 (20104578)
• Date: 11 February 2005

[2005] NTSC 4

SUPREME COURT OF THE NORTHERN TERRITORY

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

Judgment of:

Angel J

FILE NO: No. AS 6 of 2004 (20104578)

Between:

Keith Van Dongen

Appellant

and

Northern Territory of Australia

Respondent

REPRESENTATION:

Counsel:

Appellant: J Reeves QC

Respondent: S Gearin

Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32, applied

Work Health Act (NT), ss 80, 182(1), 182(3)

WORKERS' COMPENSATION — PROCEEDINGS TO OBTAIN COMPENSATION — PRELIMINARY REQUIREMENTS

Claim for compensation — not made within 6 months of injury — whether failure to make claim within time occasioned by reasonable cause

REASONS FOR JUDGMENT

(Delivered 11 February 2005)

1 This is a work health appeal which is confined to questions of law.

2 The appellant appeals against that part of a decision of the Work Health Court which dismissed the appellant's claim for compensation on the basis it was not maintainable because his claim for compensation was not made within six months after the occurrence of his injury and the failure to make the claim within time was not occasioned by reasonable cause.

3 There are three grounds of appeal. First, it is said the learned magistrate erred in law in holding the appellant was required by s 182(1) Work Health Act (NT) to make a claim for compensation within six months of the occurrence of his injury notwithstanding that he had no entitlement to any compensation under the Work Health Act (NT) during that period. Secondly, it is said the learned Magistrate erred in law in failing to deal with the issues raised by paragraph 4 of the appellant's Further Amended Reply to Defence and Counterclaim in relation to the requirements of s 182 of the Work Health Act (NT). Thirdly and finally in the alternative it is said the learned magistrate erred in law and fact in holding the appellant's failure to make his claim for compensation within six months of the occurrence of his injury was not occasioned by reasonable cause in accordance with s 182(3) Work Health Act (NT).

4 The appellant first joined the Northern Territory Police Force in January 1986, graduating just before Christmas that year.

5 The appellant's claim arises from two incidents which were referred to in evidence as the first and second Curtis incidents. The first Curtis incident occurred on 12 August 1996 at Yulara. On that day the appellant was on duty at Yulara with Police Officer Kathy Brett. A call came through indicating that the Aboriginal Community Police Officer at Mutijulu was in trouble. Officer Brett and the appellant travelled by car to Mutijulu. As they approached the community they saw many people standing around. They saw the Police Aide's car. They saw a man named Bob Curtis running towards the aide's car with a smoking stick. Bob Curtis was hitting the Police car. He had a star picket in the other hand. The appellant approached Bob Curtis with his Police baton in his hand. He swung the baton towards Curtis. Officer Brett was nearby. Curtis was 6 foot 6 inches and approximately 120 kilograms in weight. He was in his early to mid-thirties and was fit. The offender produced a knife. Officer Brett was approximately 50 kilograms and 5 foot 4 inches tall. The appellant said the offender raised the knife and slashed towards Officer Brett's head area. While missing Police Officer Brett the knife got very close to her. At this point Police Officer Brett raised her gun which was loaded and put it in the face of the offender. Officer Brett swore at the offender and told him to back off. The appellant then pushed the offender with the baton and got the gun off Police Officer Brett. The appellant said he did not know why he did that. He said he did not want Police Officer Brett to shoot the offender. He told Police Officer Brett to go and phone Alice Springs and say they were in trouble and although distressed, she did leave the area. The appellant estimated there was some 80 to 100 people in the area including children, women and old men. The appellant screamed at Bob Curtis to put the knife down on the ground but Curtis refused to comply with this direction. The appellant raised Police Officer Brett's gun towards Curtis and they both moved around in a spinning motion. The appellant told Curtis to put the knife down and Curtis said ‘shoot me’. Curtis was also speaking in an Aboriginal language. The appellant said he was focused on Curtis and that he was aware that some people were screaming out words to the effect of ‘kill him’. Some were saying not to kill him. Some were calling him a murderer. Curtis thumped his chest and repeated words to the effect ‘kill me’. For an hour or so Curtis was coming back and forth with various incidents occurring. Ultimately Curtis eluded arrest and went to Amata. There was no doubt in the learned magistrate's mind, having heard the appellant's evidence, that the incident was prolonged and very serious. That incident was reported and a crime report was submitted and an accident/injury report was also submitted by the appellant to his employer which became Exhibit W4.

6 It was not contested on appeal that the accident/injury report constituted notice for the purposes of s 80 Work Health Act (NT). In that form which was signed by the appellant the appellant described his injury as to the ‘mind’. In the nature of the injury he wrote ‘psychological’. As to the cause of the injury he said ‘attack by offender’. In answer to the question ‘do you intend claiming compensation’ the box ‘Yes’ was marked. The appellant was not absent from work as a consequence of that incident. No medical attention was sought or provided and no medical expenses were incurred.

7 The appellant, whom the learned magistrate found to be both an honest and reliable witness, gave evidence that after that incident his life changed. He said it was a huge step for him to put the form in acknowledging that he had a problem with his mind as a consequence of the incident. He felt he had failed and felt he could not cope. He was concerned about how others were going to think of him. He felt it struck at his manhood and at his pride. His evidence was that he had an injury and that the first Curtis incident had injured him mentally.

8 No claim for work health compensation was made with respect to the 12 August 1996 incident. The appellant made a claim for compensation under the Crimes (Victims Assistance) Act (NT) with respect to that incident, however, the claim being dated 11 August 1997.

9 Mr Mike Tyrell, a psychologist, prepared a report in support of the appellant's claim. Mr Tyrell assessed the appellant on 2 September 1997. The report set out two critical incidents involving the appellant, the first, the incident of 12 August 1996 and the second an incident of 9 November 1996.

10 Following the first Curtis incident the appellant did not seek any treatment. He said he could get over it and whilst he was pretty shaken up he needed ‘closure’. He believed that once he had locked Curtis up he would have ‘closure’. Curtis was found and arrested on 9 November 1996 in the course of what came to be called the second Curtis incident. Early that morning Curtis was waiting for the Police. He had a belt around his hands with the studs facing out. There was a fight in a confined space. The appellant struggled to get Curtis down. Curtis threatened that he would find the appellant's wife and children and threats were made towards them. The arrest was exhausting hard work and was a lot harder than the appellant expected. Curtis was taken into custody and...