Van Dongen v NTA (No.2) - [2007] NTMC 59

CITATION:Van Dongen v NTA (No.2) [2007] NTMC 059
PARTIES:KIETH VAN DONGEN

v
NORTHERN TERRITORY OF AUSTRALIA
(NUMBER 2)

TITLE OF COURT:  Work Health
JURISDICTION:  Work Health Court – Alice Springs
FILE NO(s):20104578
DELIVERED ON:  31 August 2007
DELIVERED AT:  Darwin
HEARING DATE(s):  26 – 27 June, 1 December 2006
JUDGMENT OF:  M Little SM
CATCHWORDS:

Work Health – Matter remitted by Supreme Court – Whether Claim Lodged for Physical Injury Extended to Psychiatric Injury – Whether Worker Knew of True Nature and Extent of his Injury – Whether Link between Incidents and Mental Injury
REPRESENTATION:
Counsel:
Worker:Mr I Morris
Employer:Ms S Gearin
Solicitors:
Worker:Mark Heitmann
Employer:Collier and Deane
Judgment category classification:
Judgment ID number:  [2007] NTMC 059
Number of paragraphs:  127

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA
No. 20104578
[2007] NTMC 059

BETWEEN:
KIETH VAN DONGEN

Worker
AND:
NORTHERN TERRITORY OF AUSTRALIA (NUMBER 2)

Employer

REASONS FOR DECISION
(Delivered 31 August 2007)
Ms M LITTLE SM:

On 24 March 2004 I delivered a decision in this matter - Van Dongen v Northern Territory of Australia [2004] NTMC 050. The claim of the worker was dismissed on a preliminary question namely that the worker had not demonstrated reasonable cause as to the failure to make a claim for compensation within 6 months, (s.182 (3) of the Work Health Act). Various aspects of the decision were appealed and on 11 February 2005 a decision was delivered by Justice Angel sitting in the Supreme Court of the Northern Territory (Van Dongen v Northern Territory of Australia [2005] NTSC 4). The first and third grounds of appeal were dismissed. Ground 2 of the appeal was upheld. Ground 2 of the appeal reads:
“the learned Magistrate erred in law failing to deal with the issues raised by paragraph 4 of the appellant’s further amended Reply to Defence and Counterclaim in relation to the requirements of s. 182 of the Work Health Act (NT).”
The Supreme Court remitted this aspect of the matter back to the Work Health Court. Justice Angel’s decision sets out the basis of the matter being remitted and I set that paragraph out in full:
“In ordering dismissal of the appellant’s claim for compensation the learned magistrate apparently overlooked the further issues raised by paragraph 4 of the appellant’s Further Amended Reply to Defence and Counterclaim in relation to the appellant’s 1999 mental breakdown and the requirements of s 182 Work Health Act (NT) in regard thereto. Those issues centred upon the appellant’s mental breakdown in the latter half of 1999 which was said to arise out of his employment with the Northern Territory Police Force. In these circumstances the appellant ought to have the opportunity to re-agitate those issues before the learned magistrate. Finding of fact relevant to those issues not having been addressed by the Work Health Court it is inappropriate that I seek to determine those matters on appeal. The order dismissing the appellant’s claims for compensation should…

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: [2007] NTMC 59
Decision Date: 31 August 2007

CaseChat Overview and Summary

In the case of Van Dongen v NTA (No. 2), the plaintiff, Mr Van Dongen, brought a claim against his employer, NTA, for both physical and mental injuries sustained during his employment. The dispute was remitted to the Work Health Court of the Northern Territory for further consideration. The core legal issues that the Court had to address were whether the claim for physical injury could be extended to include a claim for psychiatric injury and whether the worker was aware of the true nature and extent of his injury at the time it was claimed. Additionally, the Court needed to determine if there was a sufficient link between the incidents and the mental injury.

The Court examined the evidence and found that notice of the mental injury was indeed given through an Accident/Incident Report dated 13 August 1996. This finding was not contested and therefore stood as the starting point for the relevant six-month period under section 80 of the Work Health Act. The Court also found that the worker had lodged claims within the statutory time frame for physical injuries, which did not present an issue. However, the critical issue was whether the claims could be extended to encompass mental injuries. The worker argued that he did not know the true nature and extent of his condition until July 1999, citing a letter to TIO in that year as the point of notice. The Court considered the definition of the injury provided by Dr. McCarthy, which included a post-traumatic stress disorder complicated by a major depressive disorder, and the particulars of the claim which described the injury as a psychological injury stemming from the incident of 12 August 1996.

In reaching its decision, the Court concluded that the claims could be extended to include mental injuries as the evidence supported the notion that notice had been given through the 1996 report. Furthermore, the Court determined that there was a sufficient link between the incidents and the mental injury, thus upholding the claims against the employer. The Court's reasoning was grounded in the established facts and the statutory requirements of the Work Health Act.

The final orders of the Court confirmed that the claims could be extended to include mental injuries, and that the worker's knowledge of the injury's nature and extent, as well as the link to the incidents, were adequately substantiated.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Consideration of the Matter Remitted to the Court There has been a finding of fact made that notice of mental injury occurred by way of an Accident/Incident Report dated 13 August 1996 (paragraph 128 of the decision of 24 March 2004). That report was submitted to the Northern Territory Police and is now exhibit W4. That finding of fact has not been set aside. That was the relevant notice for purposes of s.80 of the Work Health Act in the case based on the First Curtis incident. An issue was raised as to whether or not there had been an agreement at the hearing as to when the relevant six month period commenced. The worker has challenged that there was an agreement that 12 August 1996 was the date of the relevant injury for the purposes of the proceedings (see reference to an agreement at paragraph 127 of the decision of 24 March 2004). The issue as to whether or not there was an agreement does not impact on the matter remitted to the Work Health Court. Based on the evidence before the Court, a finding was made that notice was given of the relevant injury by way of the accident/incident report on 13 August 1996 (exhibit W4). That finding has not been set aside. That remains the commencement of the relevant six month period, with respect the First Curtis incident and the mental injury sustained. The worker now relies on claims which have been accepted as meeting the notice requirement. As Work Health claims were lodged there are no issues with respect to the six month period under section 182 of the Work Health Act with respect to the physical injuries sustained. The question then becomes whether the claims can be extended to include mental injuries. In the alternative, it is submitted that the worker did not know of the true nature and extent of this condition until July 1999. The letter to TIO is 1999 is then relied upon as notice. Paragraph 4 of the further amended reply to defence and counter-claim defines the injury suffered during the course of the worker’s employment with the employer as a post-traumatic stress disorder complicated by a major depressive disorder. This has come from the evidence of Dr McCarthy (ex W3 and W11). Subparagraph (f) alleges that his mental breakdown in July 1999 was an injury, as that term is defined in s.3 of the Work Health Act, in that he suffered from the aggravation, acceleration, exacerbation, recurrence or deterioration of a pre-existing injury particularised in paragraph 4 of the statement of claim. The injury particularised in paragraph 4 of the statement of claim (and I take this to mean the further amended statement of claim – the pleadings relied upon at the hearing by the worker and dated 26 November 2003) pleads that the injury was as set out in paragraph 4 (a)(a) namely that the worker suffered a psychological injury as a consequence of the incident of 12 August 1996 (the first Curtis incident). It is specifically pleaded that a psychological injury was suffered as a consequence of the First Curtis incident.