Van Dongen v NTA - [2009] NTSC 1

Van Dongen v NTA [2009] NTSC 1

PARTIES: KEITH VAN DONGEN
v
NORTHERN TERRITORY OF
AUSTRALIA
TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE
NORTHERN TERRITORY
EXERCISING TERRITORY
JURISDICTION
FILE NO: No 22 of 2007 (20104578)
DELIVERED: 23 January 2009
HEARING DATES: 16, 17, 18, 19 March 2008
APPEAL FROM: M Little SM
JUDGMENT OF: SOUTHWOOD J
CATCHWORDS:
WORKERS COMPENSATION - mental injury - appeal against judgment delivered by Work Health Court - claim for compensation confined to
physical injuries, no evidence contributed to mental injury - employer given
no notice of date on which mental injury occurred - appeal dismissed.
Workers Rehabilitation and Compensation Act (NT) ss3, 80 (1) (2), 81(d),
103, 182(3)
Crimes (Victims Assistance) Act (NT)
Burns v The Commissioner of Railways (1939) WCR 115
D & W Livestock Transport v Smith (1994) 4 NTLR 169
Maddalozzo v Maddick (1992) 84 NTR 27
Perfect v Northern Territory of Australia (1993) 107 FLR 428
Prime v Colliers International (NT) Pty Ltd (2006) 204 FLR 220
Rivard v Northern Territory of Australia (1999) 129 NTR 1
Van Dongen v Northern Territory [2005] NTSC 4
Van Dongen v Northern Territory of Australia (2005) 16 NTLR 169
Van Dongen v NTA (No. 2) [2007] NTMC 59
Wattyl Australia Pty Ltd v York Unreported NTSC Angel J 4/7/1997
REPRESENTATION:
Counsel:

Appellant: I Morris
Respondent: S Gearin
Solicitors:

Appellant: M Heitmann
Respondent: Collier & Deane
Judgment category classification: B

Judgment ID Number: Sou0816
Number of pages: 38
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Van Dongen v NTA [2009] NTSC 1
No 22 of 2007 (20104578)
BETWEEN:
VAN DONGEN,
Appellant

AND:
NORTHERN TERRITORY OF
AUSTRALIA
Respondent

CORAM: SOUTHWOOD J
REASONS FOR JUDGMENT
(Delivered 23 January 2009)

Introduction

This is an appeal[1] against a judgment of the Work Health Court dismissing

the appellant’s application for workers compensation for a mental injury
which was said to have arisen as a result of various assaults that the
appellant sustained during the course of his employment as a police officer
in the Northern Territory Police Force. The judgment appealed from was
delivered by the Work Health Court on 31 August 2007.

The appellant seeks the following orders:

• The findings of the learned magistrate are set aside.

•

A finding that the injury of July 1999 was the sequelae of the five assaults sustained by the worker in the course of his employment.

•

In the alternative, a finding that the injury of July 1999 was a new injury.

•

In the further alternative, a finding that the injury of July 1999 was materially contributed to by each of the five assaults.

•

A finding that the worker was entitled to payments of compensation.

•

The worker is entitled to costs of the appeal and the hearing at first instance.

Background to the appeal

As this is the second appeal that the appellant has brought to this Court in
relation to application No. 20104578, which he…

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 1
Decision Date: 23/01/2009

CaseChat Overview and Summary

Keith Van Dongen, a former police officer in the Northern Territory Police Force, appeals against a judgment of the Work Health Court dismissing his application for workers compensation for a mental injury he sustained during the course of his employment. The legal issues in this case revolve around whether the appellant's mental injury was a result of specific assaults during his employment, if there was a causal link between the assaults and the mental injury, and whether the appellant complied with the notice and claim requirements under the Workers Rehabilitation and Compensation Act. The court found that the appellant's mental injury did not result from the physical injuries sustained during the assaults but from the stress associated with the traumatic incidents he experienced. Additionally, the court held that the appellant was not entitled to compensation as he failed to give timely notice of his mental injury and deliberately chose not to make a claim for the mental injury, thereby depriving the employer of the opportunity to rehabilitate him. The appeal was dismissed, and the court will hear further submissions regarding costs.

Orders