Hayden Bray v Sunbuild (NT) Pty Ltd - [2019] NTLC 31

CITATION:Hayden Bray v Sunbuild (NT) Pty Ltd [2019] NTLC 31
PARTIES:HAYDEN BRAY
v
SUNBUILD PTY LTD

TITLE OF COURT:  Work Health Court
JURISDICTION:  Work Health
FILE NO(s):21905978
DELIVERED ON:  23 September 2019
DELIVERED AT:  Darwin
HEARING DATE(s):  21 May 2019
JUDGMENT OF:  Judge Therese Austin
CATCHWORDS:
WORK HEALTH – SUMMARY JUDGMENT
Return to Work Act 1986 ss 3, 71, 72,
Taylor Enterprises (NT) v Pointon & Work Health Authority [2009] NTMC 29 (10 July 2009) applied
Johnson v Paspaley Pearls Pty Ltd (1996) 5 NTLR 199 applied
Maddalozzo v Maddick (1992) 108 FLR 159 applied
Global Insulation Contractors (NSW) Pty Ltd v Keating at [2012] NTSC 4 applied

REPRESENTATION:
Counsel:
Plaintiff:Mr Grove
Defendant:Mr Crawley SC

Solicitors:
Plaintiff:WARD KELLER
Defendant:HWL EBSWORTH

Judgment category classification:          A
Judgment ID number:  031
Number of paragraphs:  89

IN THE WORK HEALTH COURT

AT DARWIN IN THE NORTHERN

TERRITORY OF AUSTRALIA

No. 20528796 BETWEEN:

HAYDEN BRAY

Plaintiff
AND:
SUNBUILD PTY LTD

Defendant

REASONS FOR DECISION
(Delivered 23 September 2019)

JUDGE AUSTIN

BACKGROUND

On 21 May 2019 the Worker filed an interlocutory application seeking summary judgment in his favour that the Employer has accepted a secondary or consequential mental injury as a sequela of a physical injury to his back injury. It is not disputed that the employer accepted the primary back injury under the Work Health Act in 2008.
The application was brought pursuant to rule 21.02(1) (b) and (c) of the Work Health Court Rules.[1]The Worker’s application was supported by 3 affidavits of Clarissa Mavis Phillips sworn 21 May 2019, 28 June 2019 and 22 July 2019.
In response to the application the Employer relied on the affidavit of Reinis Nilss Dancis dated 19 July 2019.
To summarise, the Worker pleaded, that from about January 2015 the Worker’s total incapacity for work has been contributed to as a result of the Psychiatric Injury (Major Depressive Disorder), which developed in or about early 2015.
One question on the pleadings is whether the Employer has accepted the secondary injury or sequela, or whether that still remains to be proven. The Worker says the evidence establishes the Employer has accepted the secondary injury and the Employer on the pleadings denies this.
The Employer also asserts in its defence that the secondary injury is not a compensable injury under the Act as the notice requirements pursuant to s.80 and s.81 of the Act were not complied with by the Worker.
The questions raised on the pleadings can be summarised in relation to the alleged secondary psychiatric injury arising from the back injury as follows:
i)is there evidence that the Worker gave notice that the secondary injury was productive of an incapacity to work (or ever claimed that to be the case);
ii)is there evidence to prove that the secondary injury was productive of an incapacity to work; and
iii)is there sufficient evidence to prove that the Employer accepted liability for the secondary injury and that it is productive of an incapacity for work.

RULING

I find that…

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: [2019] NTLC 31
Decision Date: 23 September 2019

CaseChat Overview and Summary

Hayden Bray brought a claim against Sunbuild (NT) Pty Ltd for compensation following a workplace injury. The dispute involved the assessment of the worker's secondary psychiatric injury and the entitlement to compensation for this condition. The case was heard by the Supreme Court of the Northern Territory.

The primary legal issue before the court was whether the worker's secondary psychiatric injury, Major Depressive Disorder, was related to the compensable workplace injury and, consequently, whether the employer's assessment of the worker's whole person impairment was correct. The court also needed to determine if the worker was entitled to a reassessment of his permanent impairment assessment.

The court found that the employer accepted the primary physical injury and the secondary psychiatric injury was related to the workplace injury. The employer did not dispute the worker's evidence that the Major Depressive Disorder was related to the compensable injury. The court held that the employer's assessment of the worker's whole person impairment due to the psychiatric injury was appropriate, as it was based on the worker's presentation with a ten percent (10%) impairment due to ongoing pains and discomforts resulting from the work-related physical injury. The court further found that the worker was entitled to a reassessment of his permanent impairment assessment as the employer's notification to the worker regarding compensation for the psychiatric injury was unqualified, leaving no rights or privileges for the employer to preserve.

The court ordered that the worker's claim for reassessment of his permanent impairment assessment should proceed, and the employer's assessment of the worker's whole person impairment for the secondary psychiatric injury was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I find that the following matters were conceded by the Employer on the pleadings and through the Employer’s counsel at the hearing of the application:i)that acceptance of the primary physical injury, the back injury occurred in 2008. ii)that the secondary psychiatric injury asserted by the worker, “Major Depressive Disorder” was not an injury in this case that required a separate claim for compensation pursuant to s.82 of the Act be lodged by the Worker. As such s.82 is not a relevant consideration.EVIDENCE: I find that the Worker has established the following matters at the hearing, noting that the Employer did not put any evidence on the application to dispute or contradict the affidavit evidence of Ms Clarrisa Mavis Elieen Phillips of 21 May, 28 June and 22 July 2019. On 5 January 2015 the Worker’s GP, Dr O’Dwyer certified that the Worker had ‘depression’ related to the worker’s accepted workplace injury, the primary back injury. The GP issued a certificate of incapacity indicating this and arranged a referral to psychologist. [7] On 17 March 2015, the Employer was provided with a TIO Psychology (or Counselling) Treatment Plan by treating clinical psychologist Ms Carol McGregor for “treatment for depression” with a diagnosis of “Major Depressive Disorder”. The plan indicates the diagnosis of “Major Depressive Disorder” is listed as “related to the compensable injury”.[8] On 7 July 2015, the worker’s GP provided the Employer with a report stating that the Worker was suffering from a “depressive illness” as a result of the workplace injury.[9] On 15 July 2015, the Worker’s Psychologist provided the Employer with a further Psychologist (or Counselling) Treatment Plan for “treatment of depression” with a diagnosis of “Major Depressive Disorder”. The plan indicates that the diagnosis of “Major Depressive Disorder” is listed as “related to the compensable injury”.[10] On 1 March 2016 the Employer referred the Worker for a whole person impairment assessment for the secondary (mental) injury pursuant to s 71 and s 72 of the Act to Consultant Psychiatrist Dr Kornan, evidenced by the letter of referral to Dr Kornan dated 1 March 2016.[11] On 7 March 2016 Dr Kornan assessed the Worker’s whole person impairment for the secondary psychiatric (mental) injury “… Mr Bray presents with a psychiatric impairment of ten percent (10%) due to his ongoing pains and discomforts as a result of the work related physical injury that he sustained in December 2008.”[12] On 18 April 2016, the Employer served Dr Kornan’s report on the Worker and notified the Worker, via an open unqualified letter, that the Worker was entitled to a compensation payment as a consequence of the psychiatric (mental) injury[13]. I find that the contents of that letter were without qualification in that the Employer did not seek to preserve any rights or privileges or its position on any issue. The Worker sought a reassessment of his permanent impairment assessment pursuant to s 72(3) of the Act for his psychiatric (mental) injury through NT Worksafe.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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