Marco De Beer v Boral Resources Ltd - [2004] NTMC 21

[Back to Main List] [Back to NTMC 2004 List] CITATION: Marco De Beer v Boral Resources Limited [2004] NTMC 021

PARTIES: MARCO DE BEER

BORAL RESOURCES LIMITED

TITLE OF COURT: Work Health Court

JURISDICTION: Work Health Act

FILE NO(s): 20218530

DELIVERED ON: 8 April 2004

DELIVERED AT: Darwin

HEARING DATE(s): 15 - 19 December 2003

JUDGMENT OF: Jenny Blokland SM

CATCHWORDS:

Work Health Claim - Physical and Mental Injury in the Course of Employment - question of incapacity - Return to work programme - whether failure on the part of the worker - s 75B Work Health Act - Effect of ruling by Australian Industrial Relations Commission - Normal Weekly Earnings - casual worker - superannuation

Chabrel v Ron Pulla Mills [1999] NTSC 113
Harrower and Harrower v Craig (1993)3 NTLR 188
Miller v University of NSW [2003] FAFC 180
Sedco Forex Australia Pty Ltd v Sjoberg (1997) 142 FLR 169
Hastings Deering (Australia) Ltd v Smith [2004] NTSC 2

REPRESENTATION:

Counsel:
Worker: Mr Alderman
Employer: Mr Bryant

Solicitors:
Worker: Withnall Maley
Employer: Cridlands

Judgment category classification: B
Judgment ID number: [2004] NTMC 021
Number of paragraphs: 87

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

No. 20218530

BETWEEN:

MARCO DE BEER
Worker

AND:

BORAL RESOURCES LIMITED
Employer

REASONS FOR DECISION

(Delivered 8 April 2004)

Ms BLOKLAND SM:

1. This decision concerns the legal consequences that flow from an injury suffered by Marco de Beer, ("the worker") on 4 March 2002 while employed by Boral Resources Limited, ("the employer"). The employer agrees the worker was injured but denies certain sequelae of the injury and denies the worker was incapacitated at all after about 30 June 2002. The worker also alleges a mental injury (reactive depression) arising out of his employment with the employer. The employer denies liability under the Work Health Act (NT) or, in any event, considers that any liability it did have under the Work Health Act (NT) has ceased due to the alleged failure on the part of the worker to participate reasonably in a return to work programme.
Employment and Relevant Personal History of the Worker
2. The worker migrated from Holland to Australia with his original family in 1971. At the time of the injury and at the time of this hearing he had been in a long-term de facto relationship with his partner Ms Bonning. The worker and Ms Bonning have a daughter. The worker gave lengthy evidence concerning his employment history. I was impressed with his sincerity at the hearing and having gone over my notes of all of the evidence since the hearing, I adhere to my original impression.
3. Mr de Beer gave evidence that as a young child he travelled around with his parents, living in various regional towns in Australia. He attended various schools and the impression I had from his evidence was that schooling and his childhood were disruptive in some respects due to his parents moving often. He told the Court…

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] NTMC 21
Decision Date: 8 April 2004

CaseChat Overview and Summary

In the Work Health Court of the Northern Territory, Marco De Beer brought a claim against his employer, Boral Resources Limited, for injuries sustained in the course of employment. The dispute centred on the extent of De Beer's injuries and the employer's denial of certain sequelae of the injury, as well as the employer's assertion that De Beer had failed to participate reasonably in a return-to-work program. De Beer also claimed a mental injury (reactive depression) arising from his employment. The employer denied liability under the Work Health Act or that any liability had ceased due to De Beer's alleged failure to participate in the return-to-work program.

The Court found that De Beer had indeed suffered an injury in the course of employment, which caused damage to nerves in his right leg, resulting in numbness, tingling, chronic neuralgic pain, allodynia, nerve entrapment, and swelling. The Court rejected the employer's denial of these injuries and their sequelae. The Court also found that De Beer had suffered a reactive depression as a result of his physical injury and its sequelae, which combined with the physical injury to cause total incapacity.

Regarding the return-to-work program, the Court found that there was significant confusion in the way the program was implemented, and that the work offered to De Beer was inappropriate given his injuries. The Court concluded that De Beer had not unreasonably failed to participate in the return-to-work program and that he was totally incapacitated due to the combination of his physical and mental injuries. The Court also found that the employer had wrongfully ceased making payments to De Beer.

In light of these findings, the Court requested the parties to confer and submit a draft minute of orders for consideration, taking into account the various periods for which De Beer had worked. The Court intended to make formal orders granting the relief sought by De Beer and listed the matter for mention on 20 April 2004 to deal with outstanding matters and finalize orders.

Orders