Barclay v TNT Australia Pty Ltd - [2006] NTMC 94

CITATION: Barclay v TNT Australia Pty Ltd [2006} NTMC 094

PARTIES: JAMES BARCLAY

TNT AUSTRALIA PTY LTD

TITLE OF COURT: Work Health Court

JURISDICTION: Work Health Act

FILE NO(s): 20517534

DELIVERED ON: 4 December 2006
REPUBLISHED: 12 December 2006
DELIVERED AT: Darwin

HEARING DATE(s): 19,20,21,22,23 June 2006

JUDGMENT OF: Jenny Blokland CM

CATCHWORDS:

WORK HEALTH – CANCELLATION OF PAYMENTS – APPEAL – WHETHER CURRENT INCAPACITY CONNECTED CAUSALLY TO INJURY – VALIDITY OF NOTICE CANCELLING PAYMENTS – VALIDITY OF COUNTER CLAIM – VALIDITY OF WORK HEALTH RULE – MEDICAL EVIDENCE – ESTOPPEL – DECLARATORY RELIEF

Work Health Act: ss 69, 110A, 3, 71, 104, 103J, 93, 72
Work Health Rules: 4.06, 9.05, 8.02
Local Court Act: s 14(8)
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSW LR
Ju Ju Nominees Pty Ltd v Carmichael (1999) 146 FLR 425
Disability Services v Regan (1998) 8 NTLR 73
CEG Ansett Australia v Nieuwmans (1999) 9 NTLR 125
Collins Radio Constructions Inc v Day (1997) 140 FLR 347
TAB Pty Ltd v Gail Dickin [2004] NTCA 8
Swanson v Northern Territory Australia [2006] NTSC 88
Lupton & others v Better Care Pty Ltd & others (1996) 13 NSW CCR 246
Port of Melbourne Authority v Anshum Pty Ltd (1981) 36 ARL 3
James Barclay v TNT Australia Pty Ltd NTMC 12 September 2003
Walker Contracting Pty Ltd v Anthony Edwards 16 March 2001 NTSC
Allison McEvoy v Southern Cross Homes (Broken Hill) Inc, Ashford J, 22 June 2001
Crawford and Opeskin, “Australian Courts of Law”, (Oxford University)
Covell and Lupton, “Principles of Remedies” (Butterworths Piers), Ch 5

REPRESENTATION:

Counsel:
Worker: Mr Waters QC
Employer: Mr McManamey

Solicitors:
Worker: Caroline Scicluna
Employer: Cridlands

Judgment category classification: B
Judgment ID number: [2006] NTMC 094
Number of paragraphs: 75

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20517534
[2006] NTMC 094

BETWEEN:

JAMES BARCLAY
Worker

AND:

TNT AUSTRALIA PTY LTD
Employer

REASONS FOR DECISION

(Delivered 4 December 2006)

JENNY BLOKLAND CM:

Introduction

1. This is an appeal against the cancellation of benefits by an employer under the Work Health Act. Mr James Barclay (the “worker”) suffered an injury at work on 24 August 1999 when employed by TNT Australia Pty Ltd (the “employer”). The original injury was to the worker’s back but the worker alleges further that consequently he has suffered chronic pain in his left leg and foot and a pain disorder. The worker maintains this consequence is part of the injury within the meaning of the Work Health Act. The employer argues that any condition of chronic pain in the worker’s left leg and foot is not causally related to the back injury sustained on 24 August 1999. The employer alleges the worker is suffering from “abnormal illness behaviour” unrelated to the back injury of 24 August 1999 and that such an illness is not a condition that arose out of or in the course of employment. The worker pleads that due to his total incapacity for…

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.

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Details

Case: [2006] NTMC 94
Decision Date: 4 December 2006

CaseChat Overview and Summary

This appeal is against the cancellation of benefits by the employer under the Work Health Act. The worker alleges that he has suffered chronic pain in his left leg and foot as a consequence of an injury to his back in the course of employment. The employer argues that any condition of chronic pain in the worker’s left leg and foot is not causally related to the back injury. The worker contends that he is entitled to continued benefits under the Work Health Act. The employer filed a counterclaim seeking a declaration that the worker ceased to suffer incapacity by reason of the work-related injury as at 12 August 2004. The employer also argued that the worker is estopped from asserting that his left leg and foot pain are work-related. The court found that the employer’s notice of cancellation of benefits was invalid. The court found that the employer’s counterclaim was validly brought and allowed the counterclaim in part. The court found and declared that as at 12 August 2004, the worker had ceased to suffer any incapacity for work by reason of any work-related injury or condition and had no entitlement to compensation on and from 12 August 2004. The court dismissed the worker’s claim for weekly payments of compensation to be reinstated. The court noted that the parties were negotiating the matter and granted leave to either or both parties to make an application for costs at some time in early 2007.

Orders