Van Dongen v Northern Territory of Australia

Keith van Dongen brought an appeal against the decision of the Work Health Court, which had dismissed his claim for workers' compensation. The appeal was dismissed by the Court of Appeal. The appeal was based on the argument that, as Mr van Dongen had not suffered a compensable loss by way of expenses or income, it was impossible for him to pursue a claim for compensation within the relevant six-month period. Therefore, for the purposes of s 182(3) of the Work Health Act, it followed that the failure to make a claim was occasioned by reasonable cause. The Court of Appeal held that the appellant's construction tended to undermine the purposes of the statutory scheme in significant respects. The appellant's construction would leave the employer without notice of the appellant's inability brought about by injury sustained in the course of employment until such time as the appellant saw fit to inform the employer of that inability. In the meantime the appellant was recompensed by full salary notwithstanding that the appellant was unable to carry out properly the terms of employment. In addition, the employer was denied the opportunity of placing the appellant in appropriate conditions of employment and of both avoiding exacerbation of the injury and arranging appropriate rehabilitation. The Court held that while a delay beyond six months occasioned by the hope of recovery might amount to reasonable cause in appropriate circumstances, if a worker failed to disclose to the employer an inability to carry out properly the terms of employment caused by injury in the course of employment, the absence of compensable loss will not necessarily amount to reasonable cause. On the facts found by the magistrate, the appellant failed to establish reasonable cause.