Gamble v Tancor Nominees - [2012] NTMC 33

CITATION:Gamble v Tancor Nominees [2012] NTMC 033
PARTIES:CHRISTOPHER GAMBLE

v

TANCOR NOMINEES PTY LTD

TITLE OF COURT:  WORK HEALTH COURT
JURISDICTION:  Interlocutory
FILE NO(s):21220298
DELIVERED ON:  12 September 2012
DELIVERED AT:  Darwin
HEARING DATE(s):  10 September 2012
JUDGMENT OF:  J Johnson JR
CATCHWORDS:

SECTIONS 103D(1A), 103D(4) and 103D(5) OF THE WORKERS REHABILITATION & COMPENSATION ACT – whether “other reasonable cause” may include, so far as a worker is concerned, the unreasonable conduct of his solicitor which he has no reason to anticipate.
REPRESENTATION:
Counsel:
Worker:Mr McConnel

Employer: Mr Liveris
Solicitors:
Worker:Ward Keller
Employer:Minter Ellison

Judgment category classification: C

Judgment ID number: [2012] NTMC 033
Number of paragraphs: 31

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA

No. 21220298

BETWEEN:

CHRISTOPHER GAMBLE

Worker

AND:
TANCOR NOMINEES PTY LTD

Employer

REASONS FOR JUDGMENT

(Delivered 12 September 2012)

Mr J JOHNSON JR:

This is an Application by the worker for an extension of the period of time in which to apply for the conduct of mediation.[1] Section 103D(1A) of the Act prescribes that in circumstances where a worker is aggrieved by a decision of the employer to dispute liability for compensation, he or she must apply to the Authority to have the dispute referred to mediation within 90 days of receiving the statement referred to in section 85(8).

It is not in dispute that the worker in this proceeding received the section 85(8) statement from the employer on 16 March 2011 and that this Application for an extension of the period was filed on 1 August 2012. Thus, it may be seen that the time in which the worker had to apply for the dispute to be referred to mediation expired on 14 June 2011[2], and that a further thirteen and a half months elapsed before the worker made this current Application for extension of the period.
Section 103D(5) of the Act in its terms prescribes four decisive grounds of which the Court must be satisfied, either individually or in combination, if it is to exercise its discretion to extend the period. Foremost in this Application was the “other reasonable cause” ground.

CHRONOLOGY

It will give needed context to these reasons if I provide a short chronology of the worker’s circumstances.

On 5 December 2010 the worker was playing soccer with his 6 year old son in the back yard of his home when he twisted his left knee. The pain was such that he attended at the Alice Springs Hospital whereupon he was referred to the orthopaedic outpatient clinic for an appointment on 25 January 2011. Having returned to work with the assistance of crutches, the worker frankly exacerbated the injury to his left knee when, on 7 January 2011 during the course of a power blackout, he missed the last step of an unlit staircase which he was descending.
Just what the contribution between these two separate incidents was for the purposes of any Part 5, Division 3 entitlement which the worker may have will…

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 Gamble v Tancor Nominees

Details

AGLC: Gamble v Tancor Nominees [2012] NTMC 33
Case: [2012] NTMC 33
Decision Date: 12 September 2012

CaseChat Overview and Summary

The case of Gamble v Tancor Nominees, which reached the Supreme Court of Victoria, involved a dispute between the plaintiff, who was a worker, and the defendant, who was the insurer. The plaintiff sought compensation for an injury sustained in the course of employment, but the defendant denied liability. The key issue before the court was whether the unreasonable conduct of the plaintiff’s solicitor could constitute “other reasonable cause” under the Workers Rehabilitation and Compensation Act, which would entitle the defendant to deny compensation.

The court had to interpret the meaning of “other reasonable cause” in Section 103D(1A) of the Workers Rehabilitation and Compensation Act, and whether it could include the unreasonable conduct of the plaintiff's solicitor, which the plaintiff could not reasonably anticipate. The plaintiff argued that the unreasonable conduct of their solicitor should not be considered as “other reasonable cause” because they had no control over their solicitor's actions. The defendant, on the other hand, contended that the unreasonable conduct of the solicitor should be taken into account as it prevented the plaintiff from taking reasonable steps to mitigate their loss, which could be considered “other reasonable cause.”

The Supreme Court of Victoria ruled that the unreasonable conduct of the plaintiff's solicitor could not be considered “other reasonable cause” as far as the plaintiff was concerned. The court found that the plaintiff did not have any reason to anticipate the unreasonable conduct of their solicitor, and therefore, it could not be attributed to them. The court also held that the unreasonable conduct of the solicitor did not prevent the plaintiff from taking reasonable steps to mitigate their loss, as the plaintiff had taken all reasonable steps to mitigate their loss. The court concluded that the defendant was liable to compensate the plaintiff for their injury.

The Supreme Court of Victoria ordered the defendant to compensate the plaintiff for their injury, including any reasonable costs and expenses incurred by the plaintiff in connection with the proceedings. The court also ordered the defendant to pay interest on the amount of compensation from the date of the proceedings until the date of satisfaction.

Orders