Henry Walker Contracting Pty Ltd v Edwards - [2001] NTSC 16

Henry Walker Contracting Pty Ltd v Edwards [2001] NTSC 16
PARTIES:HENRY WALKER CONTRACTING PTY LTD

v
ANTHONY EDWARDS

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: WORK HEALTH APPEAL

FILE NO:  No. LA24/00 (9822374)
DELIVERED:  16 March 2001
HEARING DATES:  2 March 2001
JUDGMENT OF:  ANGEL J
REPRESENTATION:
Counsel:
Appellant:Mr O Downs
Respondent:  Mr S Southwood QC
Solicitors:
Appellant:Ward Keller
Respondent:  Priestleys
Judgment category classification:               C
Judgment ID Number:  ang200104
Number of pages:  6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
Henry Walker Contracting Pty Ltd v Edwards [2001] NTSC 16

No. LA24/00 (9822374)
BETWEEN:

HENRY WALKER CONTRACTING PTY LTD
Appellant

AND:

ANTHONY EDWARDS
Respondent

REASONS FOR JUDGMENT
(Delivered 16 March 2001)
ANGEL J:

This is an employer’s appeal and worker’s cross–appeal against a judgment of the Work Health Court delivered 30 October 2000.

The worker was physically injured when he fell into a trench in the course of his employment on 15 November 1996. The worker claimed compensation in a form (Exhibit E19) which described the “part of body affected” as “back, neck, elbow, knee” and the type of injury as “strained vertebrae”. The employer accepted the claim and paid compensation from the date of the injury until 24 September 1998. That cessation of payment was in purported pursuance of s 69 of the Work Health Act. On 10 September 1998 the employer had served a Form 5 Notice relying on the single ground that the worker had “ceased to be incapacitated for work, as a result of any injury arising out of or in the course of (his) employment with the employer”. Pursuant to s 69(3) Work Health Act where compensation is to be cancelled for the reason that the worker has ceased to be incapacitated for work, the Form 5 Notice is required to be accompanied by a medical certificate of a medical practitioner “certifying that the person has ceased to be incapacitated for work”. The present appellant’s Form 5 Notice was accompanied by a medical certificate of Dr Mark Awerbuch dated 1 September 1998 certifying that the worker “had ceased to be incapacitated for his employment as a labourer with Henry Walker as a result of the said injury”. That medical certificate, confined in its terms as it was to the physical injury referred to in the worker’s claim, did not comply with s 69(3) of the Act.
Prior to issuing the Form 5 Notice dated 16 September 1998 the employer had sought and received a medical report from the psychiatrist Dr McLaren dated 10 August 1998. The obtaining of this report was obviously prompted by recommendations of Dr Awerbuch in his report to the employer of 22 July 1998. Dr McLaren reported that the worker was suffering from a significant depressive state with paranoid features resulting from his physical injuries. He said, inter alia:
“I see an interaction between his original injury, his subsequent perceptions of his management and the development of his paranoid and depressive state, and believe the…

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: [2001] NTSC 16
Decision Date: 16 March 2001

CaseChat Overview and Summary

In this case, Henry Walker Contracting Pty Ltd appealed against a decision of the Work Health Court, while Anthony Edwards cross-appealed. The dispute centred around the employer's cessation of compensation payments to the worker, who had sustained physical injuries during his employment. The employer argued that the cessation was lawful under section 69 of the Work Health Act, while the worker sought to continue receiving compensation. The matter was heard and determined by Angel J in the Supreme Court of the Northern Territory.

The primary legal issue the court had to decide was whether the employer had correctly justified the cessation of compensation payments under section 69 of the Work Health Act. Specifically, the court had to examine whether the employer had proven the facts stated in the Form 5 Notice, which claimed that the worker had ceased to be incapacitated for work. The court also had to determine whether the worker was entitled to compensation for his psychiatric injury, which was not part of his original claim. Additionally, the court had to assess the worker's earning capacity from 1 June 1999 to the date of the determination.

The court found that the employer's Form 5 Notice was not supported by a compliant medical certificate as required by section 69(3) of the Act. The medical certificate only addressed the physical injuries, not the psychiatric condition that the employer had also considered. Consequently, the court held that the employer had not factually justified the cessation of payments, and the worker was entitled to continue receiving compensation. The court also dismissed the employer's argument that the worker was precluded from compensation for his psychiatric injury under section 182 of the Act. Regarding the worker's earning capacity, the court concluded that he could reasonably earn $200 per week from his involvement in the music industry and guitar lessons, a finding supported by the evidence.

Both the appeal and the cross-appeal were dismissed by the court, upholding the decision of the Work Health Court.

Orders