BAE Systems v Rothwell - [2012] NTSC 52

BAE Systems v Rothwell [2012] NTSC 52
PARTIES: BAE SYSTEMS

v
ROTHWELL, Mark Edwin

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:   LA 5 of 2011 (20917242)
DELIVERED:   31 July 2012
HEARING DATES:   30 March 2012
JUDGMENT OF:   BLOKLAND J
APPEAL FROM:   The Work Health Court
CATCHWORDS:

WORKERS COMPENSATION – Appeal against order by Work Health Court – past gratuitous attendant care services amount to “costs incurred” – unreasonable delay by employer – rate of interest under s 109(1) – award for punitive damages under s 109(3) discretionary – whether costs to be paid on solicitor and client basis

Appeal allowed on question of punitive damages and costs; otherwise dismissed.
Interpretation Act s 55, s 62,
Supreme Court Rules o 63,
Workers Compensation Act (SA)
Work Health Court Rules r 23,

Workers Rehabilitation and Compensation Act s 3, s 4, s 53, s 65, s 75, s 78, s 85, s 87, s 89, s 109, s 116,

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR; Griffiths v Kerkemeyer (1977) 139 CLR 161; Griffiths v Kerkemeyer (1989) 52 SASR 102; Grincelis v House [2000] 201 CLR 321; Keating v Global Insulation Contractors [2011] NTMC 02; Kennedy Cleaning v Petkoska (2000) 200 CLR 286; Maddalozzo v Maddick (1992) 84 NTR 27; Metro Meat Ltd v Banjanovic (1989) 52 SASR 102; NSW Sugar Milling Co-operative Ltd v Manning (1998) 16 NSW CCR 606; Richfort Pty Ltd v Baluyut (1999) 9 NTLR 58; Wormald International v Aherne NTSC; Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310; referred to
REPRESENTATION:
Counsel:
Appellant:   Mr Walsh QC
Respondent:   Mr Lindsay
Solicitors:
Appellant:   Hunt and Hunt Lawyers
Respondent:   Povey Stirk Lawyers & Notaries
Judgment category classification:    B
Judgment ID Number:   BLO 1209
Number of pages:   39

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
BAE Systems v Rothwell [2012] NTSC 52

No. LA 5 0f 2011 (20917242)
BETWEEN:

BAE SYSTEMS

Appellant

AND:

MARK EDWIN ROTHWELL

Respondent

CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 31 July 2012)
Introduction

This is an appeal by the employer, BAE Systems, against Orders made on 27 September 2011 in the Work Health Court. An appeal from an order of the Work Health Court is confined to questions of law.[1]
The relevant background concerning the injury and proceedings is set out in the learned Work Health Magistrate’s Reasons for Judgement.[2] The summary of evidence in His Honour’s reasons is primarily focused on the evidence that was given by the respondent worker’s wife.[3] The respondent’s wife and various of their 11 children provided attendant care services for the worker over all periods when he was not an in-patient in a hospital or rehabilitation centre, from about 29 September 2008. His wife also provided those services while the worker was a hospital in-patient from 29 May 2008 to September 2008. The care was described as involving a significant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BAE Systems v Rothwell

Details

AGLC: BAE Systems v Rothwell [2012] NTSC 52
Case: [2012] NTSC 52
Decision Date: 31/07/2012

CaseChat Overview and Summary

The case of BAE Systems v Rothwell was heard in the Work Health Court, where the plaintiff sought compensation for past gratuitous attendant care services provided. The defendant employer, BAE Systems, argued that the past services did not amount to “costs incurred” as defined by the Workers Rehabilitation and Compensation Act. The court found in favour of the plaintiff, ordering the employer to pay the costs of the past gratuitous attendant care services.

The key legal issues in the case were whether the past gratuitous attendant care services provided to the plaintiff amounted to “costs incurred” under the Act, and if the employer's delay in addressing the matter was unreasonable. The court also needed to determine the rate of interest to be applied to the award under s 109(1) and whether the award for punitive damages under s 109(3) was discretionary. Finally, the court had to decide if the costs should be paid on a solicitor and client basis.

The Work Health Court found that the past gratuitous attendant care services provided to the plaintiff amounted to “costs incurred” as defined by s 78 of the Workers Rehabilitation and Compensation Act. The court noted that both parties had agreed on the value of the past services and that they were reasonable and necessary. The court also found the employer's delay in addressing the matter to be unreasonable. The court ordered the employer to pay interest at the rate of 6% per annum under s 109(1) and awarded punitive damages of $50,000 under s 109(3). Finally, the court ordered the employer to pay the worker’s costs on the solicitor and client basis.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Finally, it is argued the Work Health Court was in error to order the employer pay the worker’s costs on the solicitor and client basis.The conclusion of the Work Health Court that past gratuitous attendant care services amounted to “costs incurred” under s 78 Workers Rehabilitation and Compensation Act. As well as the parties agreeing the value of past gratuitous attendant care services for the relevant period at $274,680, both parties accepted the services provided were reasonable and necessary.[8] His Honour determined the past services provided amounted to “costs incurred” as he construed s 78 of the Act. For comprehension of these reasons and to properly appreciate the context of particular words within s 78 Workers Rehabilitation and Compensation Act, it is useful to set out the section in its entirety:78 Other rehabilitation(1) Subject to this section, in addition to any other compensation under this Part, an employer shall pay the costs incurred for such home modifications, vehicle modifications and household and attendant care services as are reasonable and necessary for the purpose of this Division for a Worker who suffers or is likely to suffer a permanent or long-term incapacity.(2) Without limiting the matters which may be taken into account in determining what are reasonable and necessary home modifications, vehicle modifications and household and attendant care services in a particular case, there shall be taken into account:(a) in relation to home modifications:(i) the cost, and the relevant benefit to the Worker, of the proposed modifications;(ii) the difficulties faced by him or her in:(A) gaining access to;(B) enjoying reasonable freedom of movement in; or(C) living independently in,his or her home without the proposed modifications;(iii) the likely duration of his or her residence in the home;(iv) where the home is not owned by the Worker, the permission of the owner;(v) the likely cost of reasonable alternative living arrangements; and(vi) the likely psychological effect on the Worker of not having the proposed modifications made;(b) in relation to vehicle modifications:(i) the cost and relevant benefit to the Worker of the proposed modifications;(ii) the difficulty faced by him or her in:(A) driving or operating;(B) gaining access to; or(C) enjoying freedom and safety of movement in,the vehicle without the proposed modifications; (iii) alternative means of transport available to him or her; and(iv) the effect of the modifications on his or her likelihood of obtaining and retaining gainful employment;(c) in relation to household services:(i) the extent to which household services were provided by the Worker before the relevant injury and the extent to which he or she is able to provide those services after that date;(ii) the number of household family members, their ages and their need for household services;(iii) the extent to which household services were provided by other household family members before the relevant injury; (iv) the extent to which other household family members or other family members might reasonably be expected to provide household services for themselves and for him or her after the relevant injury; and(v) the need to avoid substantial disruption to the employment or other activities of the household family members; and(d) in relation to attendant care services:(i) the nature and extent of the Worker's injury and the degree to which that injury impairs his or her ability to provide for his or her personal care;(ii) the extent to which such medical services and nursing care as may be received by him or her provide for his or her essential and regular personal care;(iii) where he or she so desires, the extent to which it is reasonable to meet his or her desire to live outside an institutional environment;(iv) the extent to which attendant care services are necessary to enable him or her to undertake or continue employment;(v) any assessment made, at the request of the insurer, by persons having expertise in the Worker's rehabilitation; (vi) any standard developed or applied by a government department or public authority in respect of the need of disabled persons for attendant care services; and(vii) the extent to which a relative of the Worker might reasonably be expected to provide attendant care services to him or her.(3) An employer shall not be liable to pay the costs incurred for home modifications except where the Worker for whose benefit the modifications are or are to be carried out is severely impaired in his or her mobility or ability to live independently within the home.(4) In this section attendant care services, in relation to an injured Worker, means services (other than medical and surgical services or nursing care) which are required to provide for his or her essential and regular personal care.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.