HSE Mining Pty Ltd v Power - [2004] NTSC 32

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HSE Mining Pty Ltd v Power [2004] NTSC 32

PARTIES: HSE MINING PTY LTD

KAREN ALISON POWER

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE WORK HEALTH COURT EXERCISING TERRITORY JURISDICTION

FILE NO: LA 5 of 2004 (20205642)

DELIVERED: 8 July 2004

HEARING DATES: 30 June 2004 and 1 July 2004

JUDGMENT OF: RILEY J

CATCHWORDS:

WORKERS COMPENSATION
Assessment and amount of compensation – calculation of worker’s entitlement to compensation for long-term incapacity - special payments – superannuation contributions made by employer to the worker – whether entitled to compensation in the form of weekly benefits.

WORKERS’ COMPENSATION
Whether worker failed to bring claim within the time prescribed by s 104 and s 182 of Work Health Act – whether learned magistrate erred in finding that superannuation formed part of the worker’s normal weekly earnings – whether learned magistrate erred in failing to find the worker had a capacity for work - whether work was reasonably available.
Legislation:

Work Health Act s 182 and s 104.
Cases:

Fenton v Owners of Ship ‘Kelvin’ (1925) 2 KB 473
Black v City of South Melbourne (1963) VR 34
Quinlivan v Portland Harbour Trust (1963) VR 25
Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32
Black v City of South Melbourne (1963) VR 34
Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32
Melbourne and Metropolitan Tramways Board v Witton (1967) VR 417
Northern Cement Pty Ltd v Ioasa (unreported, NTSC, 17 June 1994)
B.F. Martin CJ
Passmore v Plewright (unreported, NTSC, 4 April 1997)
Hastings Deering (Australia) v Smith (2004) NTSC 2
NT Drilling Pty Ltd v McFarland (2004) NTSC 23
Murwangi Community Aboriginal Corporation v Carroll (2002) 12 NTLR 121
Held
Appeal Dismissed

REPRESENTATION:

Counsel:
Appellant: S. Walsh QC
Respondent: M. Grant

Solicitors:
Appellant: Cridlands Lawyers
Respondent: Ward Keller

Judgment category classification: B
Judgment ID Number: ril0413
Number of pages: 22

ril0413

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

HSE Mining Pty Ltd v Power [2004] NTSC 32
No LA 5 of 2004 (20205642)

BETWEEN:

HSE MINING PTY LTD
Appellant

AND:

KAREN ALISON POWER
Respondent

CORAM: RILEY J

REASONS FOR JUDGMENT

(Delivered 8 July 2004)

[1] The respondent/worker was injured in the course of her employment as a “haulpac” driver with the appellant/employer. The injury occurred on 9 October 1996 and she reported the incident that day. On 23 October 1996 her employment was terminated by the employer.

[2] It was not until 14 January 1998 that the worker made a claim for compensation. At that time she referred to her injuries as “injured left thigh and lump on the head”. By notice dated 11 February 1998 the employer deferred accepting liability and then, on 10 March 1998, the employer denied liability for the claim.

[3] In the notice of denial one of the reasons for the decision was said to be: “You have…

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: [2004] NTSC 32
Decision Date: 30/06/2004

CaseChat Overview and Summary

In the matter of HSE Mining Pty Ltd v Power, the Supreme Court of the Northern Territory dealt with several issues related to workers' compensation. The case centred on the worker's failure to submit a claim within the statutory time limits and the employer's denial of liability. The court examined whether the worker's failure to claim within the time prescribed by s 182 of the Work Health Act was due to ignorance of disease, absence from the Territory, or other reasonable cause. The court found that the worker's lack of understanding of her psychological condition and her absence from the Territory contributed to the delay in filing the claim. Additionally, the court assessed whether the worker had a capacity for work and if there was work reasonably available to her. The worker's psychological condition and personal circumstances were found to limit her ability to undertake paid work. The court also addressed whether superannuation contributions formed part of the worker’s normal weekly earnings for the purposes of calculating compensation. Following precedents set by previous cases, the court concluded that superannuation did form part of the normal weekly earnings. The appeal was ultimately dismissed.

Orders