Karen Alison Power v HSE Mining Pty Ltd

CITATION:Karen Alison Power v HSE Mining Pty Ltd [2004] NTMC 5

PARTIES:KAREN ALISON POWER

v

HSE MINING PTY LTD

TITLE OF COURT:  Work Health Court

JURISDICTION:  Work Health

FILE NO(s):20205642

DELIVERED ON:  30 January 2004

DELIVERED AT:  Darwin

HEARING DATE(s):  9 – 12 September 2003

JUDGMENT OF:  Mr J Lowndes

CATCHWORDS:

FAILURE TO GIVE NOTICE -- WHETHER WORKER’S CLAIM BARRED BY

TIME -- NOTION OF MUTUALITY -- FAILURE TO MITIGATE -- WHETHER SUPERANNUATION PART OF NORMAL WEEKLY EARNINGS

Work Health Act, 55, 80, 104, 182

Tracey Village Sports and Social Club v Walker (1992) 111 FLR 32, applied;
Foresight v Maddich (1991) 79 NTR 17, applied;
Roh Industries v Trepic (1989) 52 SASR 158, considered;
Cleveland v Paspaley Pearling Pty Ltd [1999] NTSC 65, considered;
Lindner v Normandy Gold Pty Ltd (2000) NTMC 028, considered;
Tanner v Anthappi Pty Ltd (2000) NTMC 004, considered;
Ansett Australian v Van Nieuwmans (1999) 9 NTLR 125, considered
Smith v Hastings Deering (Australia) Ltd [2003] NTMC 029, followed.

REPRESENTATION:

Counsel:

Worker:Mr Grant

Employer:Mr Bryant

Solicitors:

Worker:Ward Keller

Employer:Cridlands

Judgment category classification:        A

Judgment ID number:  [2004] NTMC 5

Number of paragraphs:  234

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20205642

BETWEEN:

KAREN ALISON POWER

Worker

AND:

HSE MINING PTY LTD

Employer

REASONS FOR DECISION

(Delivered 30 January 2004)

Mr J Lowndes SM:

The nature of the proceedings

1. This is an application made by the worker pursuant to the provisions of the Work Health Act (NT) whereby the worker seeks the following orders:

   1.1That the employer pay weekly benefits to the worker in accordance with the Act over the period from the date of termination of the worker’s employment to date of order.

   1.2That the employer pay to the worker interest pursuant to s 189 and/or 109 of the Act in respect of arrears over the period from and including 14 February 1998 to and including 24 March 1998.

   1.3That the employer pay the worker weekly benefits pursuant to the Act from the date of order and continuing in accordance with the Act.

   1.4That the employer pay the worker’s entitlement to medical, surgical and like expenses pursuant to s 73 of the Act, and travel expenses relevant to such medical expenses, at all times from 9 October 1996 to date of order.

   1.5That the employer pay the worker’s medical and like expenses, including relevant travel expenses, from the date of order in accordance with the Act.

   1.6That the employer pay the worker’s costs of and incidental to the proceedings at 100% of the Supreme Court Scale, to be taxed in default of agreement.

   The issues

2. The following matters are admitted:

   2.1The worker was a “worker” within the meaning of the Work Health Act, that the worker’s normal weekly earnings in terms of wages were $1,122.00, that the worker was involved in an accident on 9 October 1996[1], that the worker sustained an injury as a result of that accident and…