Dickin v NT TAB Pty Ltd - [2003] NTSC 119

Dickin v NT TAB Pty Ltd [2003] NTSC 119
PARTIES:GAIL DICKIN

v
NT TAB PTY LTD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM WORK HEALTH COURT EXERCISING TERRITORY JURISDICTION
FILE NO:LA 6 of 2003 (20201609)
DELIVERED:  5 December 2003
HEARING DATES:  16, 17 October 2003
JUDGMENT OF:  ANGEL ACJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:S Southwood QC and O Downs
Respondent:  P Barr
Solicitors:
Appellant:Priestley Walsh
Respondent:  Hunt & Hunt
Judgment category classification:    B
Judgment ID Number:  ang2003012
Number of pages:  11

2003012
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Dickin v NT TAB Pty Ltd [2003] NTSC 119
No. LA 6 of 2003 (20201609)

BETWEEN:
GAIL DICKIN

Appellant
AND:
NT TAB PTY LTD

Respondent

CORAM: ANGEL ACJ
REASONS FOR JUDGMENT
(Delivered 5 December 2003)

This is an appeal pursuant to s 116 Work Health Act NT.

The appellant worker commenced employment with the respondent employer in or about 1981. In November 1995 in the course of her employment the appellant was carrying a “fairly large box” of pens with strings attached when she tripped and fell. She fell forward on top of the cardboard box she was carrying. As a result of the fall she sustained injuries to her elbow, shoulder and neck. She never returned to her employment after the fall.

The appellant claimed compensation on the basis of incapacity arising from her injuries. Following her claim for compensation the respondent employer agreed to pay weekly compensation. The parties entered a memorandum of agreement which was executed by the parties and dated 3 July 1997. That agreement was in the form contemplated by s 108 Work Health Act NT whereby the respondent employer agreed to pay weekly compensation to the date thereof and continuing. That agreement between the parties was in proceedings numbered 9600706 and was recorded by the Work Health Court on 7 July 1997 pursuant to s 108 Work Health Act NT in resolution of the appellant’s claims. The agreement recorded that the appellant worker had sustained an injury on or about 28 November 1995, the injury being described as “stress, depression, anxiety; injured elbow, injured shoulder, aggravation of pre–existing whiplash condition”, and the agreement further provided that the respondent employer would pay weekly payments of compensation until cancellation or reduction of those payments in accordance with the Work Health Act.

On or about 8 January 2002 the respondent, in purported pursuance of s 69 Work Health Act, caused a Form 5 Notice to be served upon the appellant notifying her that the compensation payments would cease 14 days thereafter. The relevant reasons for cancellation of compensation given in the Notice were as follows:
· “You have ceased to be incapacitated for work as a result of your work–related injury of 28/11/1995.
· As per the attached certificates from Dr Timney and Dr Kutlaca both dated 17/12/2001”.
Each attached medical certificate certified “that the Worker has ceased to be incapacitated for work as a result of the work…

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: [2003] NTSC 119
Decision Date: 5 December 2003

CaseChat Overview and Summary

In the matter of Dickin v NT TAB Pty Ltd [2003] NTSC 119, the appellant, Gail Dickin, filed an appeal against the respondent, NT TAB Pty Ltd, in the Supreme Court of the Northern Territory. The case arose from a dispute over the cessation of weekly compensation payments made to the appellant following an injury sustained at work in November 1995. The respondent had issued a Form 5 Notice under the Work Health Act, asserting that the appellant was no longer incapacitated for work as a result of her injury and therefore cancelling her compensation payments. The appellant contested the validity of this notice and sought reinstatement of her compensation.

The primary legal issues before the court were whether the respondent's Form 5 Notice complied with the statutory requirements of the Work Health Act and whether the employer was estopped from disputing the work-related nature of the appellant's injuries and incapacity. Additionally, the court had to consider whether the Chief Magistrate's decision to order the appellant to repay interim benefits was lawful and whether he erred in upholding the counter-claim without providing adequate reasons.

The Supreme Court found that the Form 5 Notice was invalid as it did not provide sufficient detail to enable the appellant to fully understand why her compensation was being cancelled, as required by section 69(4) of the Work Health Act. The notice was ambiguous and failed to clearly state whether the appellant had recovered her capacity or if her incapacity was due to factors other than her admitted work-related injury. The Court also determined that the respondent was estopped from contesting the work-related nature of the appellant’s injuries and incapacity due to a previous compromise agreement recorded by the Work Health Court. Furthermore, the Court ruled that the Chief Magistrate erred in ordering the repayment of interim benefits without legal basis and in failing to provide reasons for upholding the counter-claim.

The appeal was allowed, and the Supreme Court directed that the appellant be reinstated to her weekly compensation payments, be compensated for back payments due, and be reimbursed for medical expenses incurred since the cancellation of her payments. The Court further directed that the respondent serve a fresh Form 5 Notice if it intended to raise new issues justifying the cancellation of payments.

Orders