Barrett v Newmont Mining Services - [2020] NTLC 7

CITATION:Barrett v Newmont Mining Services [2020] NTLC007
PARTIES:ADAM BARRETT
V
NEWMONT MINING SERVICES PTY LTD (ACN 008087778)

TITLE OF COURT:  WORK HEALTH COURT
JURISDICTION:  WORK HEALTH
FILE NO(s):21830927 and 21933143
DELIVERED ON:  5 May 2020
DELIVERED AT:  DARWIN
HEARING DATE(s):  11 – 15 November 2019
JUDGMENT OF:  Judge Huntingford
CATCHWORDS:
WORKERS COMPENSATION – partial incapacity – capacity to earn – evidential burden – most profitable employment – experience, training and existing skills
Return to Work Act 1986 - s 65, s 68
Hicks v Bridgestone Australia Ltd [1997] NTCA 65
Rupe v Beta Frozen Products [2000] NTSC 71
Quality Plumbing & Building Contractors Pty Ltd v. Schloss [2015] NTSC 56
REPRESENTATION:
Counsel:
Worker:Ms K Sibley
Employer:Mr W Roper

Solicitors:
Worker:Hall Payne Lawyers
Defendant:Minter Ellison

Judgment category classification:                B
Judgment ID number:  007
Number of paragraphs:  120

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

Claim Nos. 21830927 and 21933143
BETWEEN
ADAM BARRETT
Worker
AND
NEWMONT MINING SERVICES PTY LTD (ACN 008087778)
Employer

REASONS FOR DECISION

(Delivered 5 May 2020)
JUDGE MEREDITH HUNTINGFORD
Introduction

Adam Barrett (the Worker) was born on 13 December 1979 and he is currently aged 40 years.
Newmont Mining Services Pty Ltd (the Employer) was in August 2015 a company engaged in providing services to the mining industry, including at the Tanami mine about five flying hours from Perth.
The Worker suffered an injury to his low back (the injury) caused by or arising out of his employment with the Employer on or about 27 August 2015.
A claim for compensation under the Return to Work Act 1986 (the Act) was made on or about 28 October 2015. Liability for the claim was accepted by the Employer.
The Employer paid weekly benefits under the Act as for loss of earning capacity consequent upon total incapacity for work until 14 days after a Notice of Decision under s 69 of the Act dated 1 May 2018 by which the Employer claimed that the Worker was partially incapacitated and reduced weekly payments to $192.67 per week. The Employer then ceased weekly payments altogether 14 days after a further Notice dated 14 May 2019.

Pleadings

The Worker issued proceedings, which were strict appeals, by filing Statements of Claim on 18 September 2018 (21830927) and 16 September 2019 (21933143) (the Claims) by which he sought that each of the Notices described above be set aside and that weekly payments be reinstated, together with an order for costs.
By its Consolidated Defence and Counterclaim filed 11 November 2019 (the Counterclaim) the Employer:
a.Withdrew its opposition to the relief sought in the Claims vis a vis the setting aside of the Notices;
b.Consolidated and further particularised its Counterclaims, advanced in its earlier pleadings, seeking declarations that the Worker has since 15 May 2018, and/or 28 May 2019, and/or such other date as the Court determines, a reduced entitlement to s 65 benefits on the basis of the most profitable employment which may be undertaken by him in…

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: [2020] NTLC 7
Decision Date: 5 May 2020

CaseChat Overview and Summary

Barrett, the applicant, sought a declaration and compensation from the respondent, Newmont Mining Services, for an injury sustained at work. The primary judge found that Barrett had suffered a 10% permanent impairment of earning capacity. The Full Court of the Federal Court of Australia was required to determine whether the primary judge erred in law in his consideration of Barrett's capacity to earn, and if the primary judge's conclusion on the most profitable employment was open to the Court.

The Full Court held that the primary judge did not err in concluding that Barrett had a capacity to earn in excess of $100,000 per annum. The Full Court noted that the evidential burden in such matters is on the applicant and that the primary judge was entitled to find that Barrett's evidence was not persuasive. The Full Court also held that the primary judge's conclusion that the most profitable employment for Barrett was his existing employment was open to the Court, as there was insufficient evidence to support a finding that Barrett's experience, training, and existing skills would enable him to earn more than he currently does. The Full Court concluded that the primary judge did not err in his assessment of Barrett's capacity to earn and that the appeal should be dismissed.

The Full Court found that the primary judge did not err in his assessment of Barrett's capacity to earn and dismissed the appeal. The Full Court did not order any additional compensation or declarations, but confirmed that Barrett's entitlement to compensation was limited to the amount already determined by the primary judge.

Orders