Newton v Masonic Homes Inc - [2009] NTSC 51

Newton v Masonic Homes Inc [2009] NTSC 51

PARTIES: CHERYL ANNE NEWTON
v
MASONIC HOMES INC T/AS TIWI
GARDENS NURSING HOMES
(ACN 063 954 674)
TITLE OF COURT: SUPREME COURT OF THE NORTHERN
TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO: LA 8 of 2008 (20718189)
DELIVERED: 28 September 2009
HEARING DATES: 7 & 8 April 2009
JUDGMENT OF: MILDREN J
APPEAL FROM: WORK HEALTH COURT
CATCHWORDS:
APPEAL – appeal from Work Health Court – whether findings were errors of law or errors of fact – appeal limited to errors of law – test to be applied
EVIDENCE – witnesses called to give evidence about duties in occupations – whether expert evidence – whether expert evidence limited to opinion evidence
WORKER’S COMPENSATION – Notice of Termination of weekly benefits – not accompanied by medical certificate – whether medical certificate required – meaning of “ceased to be incapacitated for work” – whether notice provided sufficient detail – whether notice valid – whether notice relevant where worker and employer widen issues by pleadings going beyond an appeal under s 69
WORKER’S COMPENSATION – application in Work Health Court – whether witnesses were non-medical experts – whether evidence wrongly admitted in absence of compliance with Work Health Court Rules – function and purpose of r 18.07 – whether expert evidence limited to opinion evidence – whether if error occurred appeal must be allowed
Workers Rehabilitation and Compensation Act, s 3(1), s 65(2)(b)(ii), s 69, s 69(1),
s 69(1)(b), s 69 (1)(b)(vi), s 69(3), s 69(4), s 107, s 110A(3); Work Heath Court
Rules, r 18.07, r 18.09
Cross on Evidence, 4th Aust ed, Butterworths, Sydney, 1991- (loose-leaf edition)
Alice Springs Town Council v Mpweteyerra Aboriginal Corp (1997) 115 NTR 25;
Disability Services of Central Australia v Regan (1998) 8 NTLR 73; Tracy Village
Sports & Social Club v Walker (1992) 111 FLR 32; Wilson v Lowery (1993)
4 NTLR 79; applied
Bruce v Cole (1998) 45 NSWLR 163; Horne v Sedco Forex Australia (1992) 106 FLR 373; Lujans v Yarrabee Coal Co Pty Ltd (2008) 83 ALJR 34; distinguished
Gumana v Northern Territory of Australia (2005) 141 FCR 457; (2005) 218 ALR
292; followed
Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171; Burns & Territory
Insurance Board [No 2] (2007) 20 NTLR 66; Butera v Director of Public
Prosecutions (1987) 164 CLR 180; Collins Radio Construction Inc v Day (1997)
140 FLR 347; (1998) 143 FLR 425; Foresight Pty Ltd v Maddick (1991) 1 NTLR
209; HWE Contracting Pty Ltd v Young (2007) 20 NTLR 83; Ju Ju Nominees Pty
Ltd v Carmichael (1999) 149 FLR 425; R v Pfennig [No 1] (1992) 57 SASR 507;
Spellman v RSL [2004] NTMC 087; The Queen v Perry (No 4) (1981) 28 SASR
119; Weal v Bottom (1966) 40 ALJR 436; referred to
REPRESENTATION:
Counsel:

appellant: S Gearin

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: [2009] NTSC 51
Decision Date: 28/09/2009

CaseChat Overview and Summary

This is an appeal from the Work Health Court, which sits as a division of the Supreme Court of the Northern Territory. The appeal concerns a dispute between the appellant, Cheryl Anne Newton, and the respondent, Masonic Homes Inc trading as Tiwi Gardens Nursing Home. The appellant had been employed by the respondent as a Personal Care Assistant. She sustained a right thumb injury at work in 2005 and claimed compensation under the Workers Rehabilitation and Compensation Act. The respondent accepted liability for the injury and paid compensation benefits until it gave notice of its intention to cease payment of weekly compensation in 2007. The appellant brought proceedings against the respondent in the Work Health Court, seeking reinstatement of the weekly compensation benefits, as well as compensation for consequential injuries to her left hand, arm and shoulder, and a psychiatric injury. The respondent filed a counterclaim that the appellant was not entitled to weekly compensation benefits because she was capable of being employed in alternative occupations. The learned Magistrate decided in favour of the appellant on the issue of the notice of termination of weekly compensation benefits and in favour of the respondent on the merits. The learned Magistrate found that the appellant was not entitled to weekly compensation benefits and rejected the appellant’s claims for consequential injuries. The appellant appealed to the Supreme Court. The appeal was heard on the basis of the parties’ written submissions and the transcript of the oral submissions before Angel J. The appellant’s grounds of appeal included an assertion that the learned Magistrate had applied the wrong onus of proof; that there was no evidence to support the learned Magistrate’s findings of fact; and that the learned Magistrate wrongly admitted evidence from witnesses called to give evidence about duties in occupations. The Court held that the appeal would be dismissed in relation to all grounds of appeal except ground 18. The Court found that the learned Magistrate erred in law in rejecting the appellant’s claim for an automatic car because there was no evidence upon which the learned Magistrate might have rationally concluded that the appellant could safely drive a vehicle whilst changing gears, given her findings that the problems with the appellant’s right hand affected her ability to drive. The appeal in relation to ground 18 was allowed.

Orders