NT TAB P/L v Dickin [2004] NTCA 8

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NT TAB P/L v Dickin [2004] NTCA 8


PARTIES: NT TAB PTY LTD (ACN 092 644 831)

v

GAIL DICKIN

TITLE OF COURT: IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA

JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT exercising Territory jurisdiction

FILE NO: AP27 of 2003

DELIVERED: 4 June 2004

HEARING DATE: 13 May 2004

CORAM: MILDREN, THOMAS and RILEY JJ

CATCHWORDS:

APPEAL - WORKERS COMPENSATION - ENTITLEMENT TO AND LIABILITY FOR COMPENSATION
Cessation of payments - appellant employer gave notice of intention to end weekly payments to worker - medical evidence indicates the worker fit for employment - whether employer estopped from finding the worker fit for employment - whether the magistrate failed to give reasons for counterclaim -whether notice given to worker complied with the s 69(4) of the Work Health Act - appeal allowed.
Work Health Act 1995 (NT) s 69(4)
Schell v Northern Territory Football League (1995) 5 NTLR 1; Disability Services v Regan (1998) 8 NTLR 73; Alexander v Gorey & Cole Holdings Pty Ltd (2002) 171 FLR 31; Mobasa Pty v Nikic (1987) 89 FLR 411, considered.
Clinton Douglas Rupe v Beta Frozen Products [2000] NTSC 71, distinguished.
O'Donel v The Commissioner for Road Transport and Tramways (New South Wales) (1938) 59 CLR 744; Whisprun Pty Ltd v Dixon [2003] HCA 48; Miller v Cameron and Others (1936) 54 CLR 572; Collins Radio Constructions Inc v Day (1998) 143 FLR 425, followed.
REPRESENTATION:

Counsel:
Appellant: P Barr
Respondent: S Southwood QC

Solicitors:
Appellant: Hunt & Hunt
Respondent: Priestly Walsh

Judgment category classification: C
Judgment ID Number: tho200404
Number of pages: 34



IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

NT TAB P/L v Dickin [2004] NTCA 8
No. AP27 of 2003

BETWEEN:

NT TAB PTY LTD
(ACN 092 655 831)
Appellant

AND:

GAIL DICKIN
Respondent

CORAM: MILDREN, THOMAS and RILEY JJ


REASONS FOR JUDGMENT

(Delivered 4 June 2004)

Mildren J
[1] I have had the opportunity to read a draft of the Judgment prepared by Thomas J. I agree with her Honour, for the reasons which she gives, that the appeal should be allowed and with the orders she proposes.
Thomas J
[2] This is an appeal from the decision of a Judge of the Supreme Court who upheld an appeal from a decision of the Chief Magistrate sitting in the Work Health Court.
[3] The issue before the Work Health Court was an application by Ms Gail Dickin who is the respondent in these proceedings before the Court of Appeal, and is referred to hereafter as the worker, against her employers NT TAB Pty Ltd who is the appellant in these proceedings before the Court of Appeal and is referred to hereafter as the employer.
[4] The worker made application to the Work Health Court seeking continuation of weekly payments under the Work Health Act 1986.
[5] The background to this application and the subsequent proceedings is as follows:
[6] In November 1995 the worker was employed by the employer as Operation and Marketing Manager. On 28 November 1995, she was carrying a fairly large box of pens from her home into her work place. As she entered her workplace she tripped and fell forward on top of the box she was carrying. The worker sustained injuries to her elbow, shoulder and neck. She has not subsequently returned to her employment.
[7] On 11 December 1995, the worker made a claim for compensation. In her claim form which was Exhibit W19 before the Work Health Court the worker stated as follows:
"Work related stress due to verbal abuse unresolved issues and lack of management support and an injury sustained at work which brought all the above to a heap (sic)."
[8] On the claim form the worker had stated the address where the injury occurred as:
"NT TAB Playford Street Fannie Bay Race Course Fannie Bay."
The date and time of the injury was stated to be: "Date 28/11/95 Time 8.30 am".
[9] In the claim form the part of the body affected by the injury was stated to be: "mind, arms, neck, shoulders".
[10] On 7 July 1997, the Registrar in the Work Health Court signed a notice of recording of Memorandum of Agreement. A copy of the Memorandum of Agreement was tendered as Exhibit W14. Particulars of the worker's claim were set out in this Memorandum of Agreement:
"(d) Brief statement of injury or disease that occurred to the worker:"
The worker had answered:
"stress, depression, anxiety; injured elbow, injured shoulder, aggravation of pre-existing whiplash condition."
[11] The worker was not in employment for many years after the injury at the place of work on 28 November 1995. She was in receipt of weekly compensation payments on the basis that she was totally incapacitated for work up to the date of the notice of decision dated 8 January 2002.
[12] On 2 March 1998, the worker was assessed for the employer by neurologist Dr John Cameron. Dr Cameron prepared a report which was Exhibit E6 before the Work Health Court. The report is dated 3 March 1998 (AB 525). Dr Cameron noted:
"Gail Dickin is 41 years old. She last worked 2 years and 2 months ago. She worked as an operations and marketing manager for the TAB in Darwin. She now lives on the Sunshine Coast with a friend and remains on 'stress leave'".
[13] Dr Cameron then sets out a history of motor vehicle accidents in which the worker was involved between 1992 and 1997 and also referred to the fall on 28 November 1995. Dr Cameron then stated at pages 5 - 6 of his report:
"From the description of events, I would believe it is highly improbable that she has any residual disability in her neck which one could relate to these latter 2 accidents at this stage. From what she describes, I suspect that, at the most, she suffered musculoligamentous strain injuries. These should have settled within a matter of weeks following each event.
She has no evidence today of any organic disturbance in her cervical spine on examination.
The fall she suffered in November, 1995 in which she apparently bruised her elbow and shoulder, would have caused only local bruising. This should also have resolved within a matter of days. There is no evidence of any ongoing disability or problem in either the right shoulder or elbow joints at this stage.
Her sole problem appears to be one of persisting unhappiness with her former workplace which she refers to as "stress".
I believe there is a high probability that Mrs. Dickin is manifesting disability in the absence of any organic disturbance and this has been attributed to "stress".
I do not believe there is any evidence on her story nor on examination to support that she has any organic problem which one could relate to any of the accidents suffered at this stage."
[14] On 29 October 2001, the worker was assessed for the employer by psychiatrist Dr Brian Timney. Dr Timney's report dated 5 November 2001 is Exhibit W3. At the conclusion of his report Dr Timney answered a number of specific questions which included as follows (AB 519 - 520):
"4. Having examined Ms Dickin, please provide your opinion as to whether or not she currently suffers from a psychiatric or psychological condition? If yes, please advise the basis on which you reached your conclusion and provide your diagnosis of the condition.
Yes, I previously documented that Ms Dickin suffers from a number of psychiatric conditions. I can find no evidence that any of these diagnoses are currently related to her employment with the TAB. Clearly she is a woman who has had a number of serious difficulties within her life and the incidents at the TAB are simply one in a long line of difficulties.
The type of problems she described within the workplace was certainly serious and in my opinion, sufficient to have been responsible for the development of a psychiatric disorder, but the effects of these incidents would certainly have passed within two years after the onset of her problems in 1995.
5. If it is your opinion that Ms Dickin still suffers from a psychiatric or psychological condition, please advise whether or not you are of the opinion that such injury is connected to her former employment.
In my opinion, there are a number of other issues that are more likely responsible for her ongoing problems. These include her complaints of chronic pain, her misuse of cannabis and the effects of her brain tumour. I note that her meningioma was in the right frontal lobe and many of her problems with irritability and anger could probably be related to frontal lobe function.
6. If you are [of] the opinion that Ms Dickin still suffers from a psychiatric or psychological condition, please advise whether or not such condition renders [her] totally or partially incapacitated for work.
At the present time, her psychiatric conditions do render her incapacitated from work."
[15] On 6 December 2001, the worker was assessed for the employer by psychiatrist Dr David Kutlaca. Dr Kutlaca prepared a report dated 10 December 2001 (Exhibit E1). Some extracts from this report are as follows:
"In this assessor's opinion, it is doubtful if Ms Dickin's ongoing complaints of neck pain are underpinned by a diagnosable organic or psychiatric disorder. In terms of the latter, I would reject the notion of a pain disorder or similar, given her unremarkable non-compensable illness behaviour, and she was not diagnostically depressed at this evaluation. In effect, her major complaints in relation to the (1991 and) 1995 events were presented as anger and depression. Anger on its own is not generally considered to represent a psychiatric disorder: it most likely represents an aspect of her premorbid personality style. Put another way, I was unable to support her work-related complaints on the basis of a relevant psychiatric disorder and strongly suspect conscious exaggeration. I consider that any emotional sequelae of the events of 1991/1995 had been worked through long ago such that her presentation at this evaluation was essentially that of her premorbid personality and involvement in a compensation claim. I was unable to support marijuana abuse/dependence secondary to the work-related issues outlined."
[16] Dr Kutlaca also responded to a series of specific questions including as follows:
"1. In your opinion, what is your diagnosis of Ms Dickin's current condition?
I consider that Ms Dickin is not currently suffering from a diagnosable psychiatric disorder in relation to her work-related allegations;
….
4. Focusing on the work related condition only, and none of the other medical factors, do you believe that Ms Dickin would not be in a position to return to the work force? If not, why not?
Ms Dickin is clearly ready to return to the workforce, ideally in self employment;
….
6. Focusing on the initial workers compensation claim only, in your opinion what would be suitable vocational options for Ms Dickin?
Ms Dickin is currently fit for employment within her qualifications and experience;"
[17] On 8 January 2002, the employer acting in reliance on s 69 Work Health Act, sent the worker a letter dated 8 January 2002. This letter enclosed a number of documents including a "notice of decision" stating that the employer:
"Cancels payment of weekly benefits to you pursuant to Section 69 of the Work Health Act. This cancellation will be effective in 14 days from your receipt of this notice.
The reasons for this decision are:
" You have ceased to be incapacitated for work as a result of your work-related injury of 28/11/1995
" As per the attached certificates from Dr Timney and Dr Kutlaca both dated 17/12/2001."
[18] The two medical certificates, both dated 17 December 2001, which were also enclosed with the letter, referred to the respective dates of examination and both stated:
"… I certify that the worker has ceased to be incapacitated for work as a result of the work injury."
[19] The letter dated 8 January 2002 with the enclosures is Exhibit E28. The letter, set out in summary form the findings of Dr Kutlaca and Dr Timney in their respective reports.
[20] The worker "appealed" this decision by application to the Work Health Court. Pleadings included an amended statement of claim dated 3 February 2003. The worker claimed reinstatement of weekly payments, payment of medical and pharmaceutical expenses, reasonable rehabilitation expenses, interest and costs.
[21] An amended notice of defence was filed on 21 February 2003.
[22] In his reasons for decision the learned Chief Magistrate noted that "the employer" was given late notice of "the worker's" intention to challenge the validity of the Form 5 notice of decision under s 69 of the Work Health Act. Because of this late notice, the learned Chief Magistrate granted leave to "the employer" to file a limited counterclaim.
[23] The counterclaim, which is included in the abovementioned amended defence, states as follows:
"13. At some time prior to 8 January 2002, the Worker ceased to be incapacitated for work as a result of her work related injury of 28 November 1995.
14. The Employer seeks a declaration or ruling that the Worker was no longer incapacitated for work as a result of her work related injury of 28 November 1995 from on or before 8 January 2002."
[24] Paragraph 13 of the counterclaim is the same in substance as the ground set out in the "notice of decision" included in Exhibit E28. The counterclaim enabled the employer to argue the issue of the worker's cessation of incapacity arising from her work injury on the merits and without being subject to failure on technical legal grounds relating to any alleged non-compliance with s 69 Work Health Act, such as whether medical certification under s 69(3) was contemporaneous; or whether the explanation of reasons for cancellation complied with s 69(4). If the notice of cancellation failed for technical reasons, then the employer's case could still succeed on its counterclaim - Schell v Northern Territory Football League (1995) 5 NTLR 1 at 6.3; Disability Services v Regan (1998) 8 NTLR 73 at 78 - 79 per Mildren J; Alexander v Gorey & Cole Holdings Pty Ltd (2002) 171 FLR 31 at para 30.
[25] Paragraph 5 of the amended notice of defence provides as follows:
"The Employer admits that the Worker was previously incapacitated for work in respect of certain injuries for which she claimed compensation, but says that the Worker is no longer incapacitated for work as a result of those injuries. In the alternative, the Employer says that if the Worker is incapacitated for work, such incapacity is not as a result of an injury arising out of or in the course of the Worker's employment with the Employer."
[26] This paragraph of the notice of defence and the counterclaim both allege cessation of incapacity for work resulting from the work place injury.
[27] The worker did not file any reply to the defence or defence to the counterclaim.
[28] The trial in the Work Health Court was on 24 - 28 February 2003. The learned Chief Magistrate identified the issues for determination before him in paragraph 5 of his reasons for decision.
"5. The issues arguably raised by the pleadings in this matter and accepted by counsel as requiring determination by the court are:
5.1 Whether the Form 5 is a valid notice pursuant to s 69 of the Work Health Act.
5.2 If yes, is the case asserted in the Form 5 made out on the merits.
5.3 If no to question one then has the employer made out a counter claim which is agreed between the parties to be in effect the same as that which is asserted in the Form 5 namely that on or before 8/1/02 the worker had ceased to be incapacitated from work as a result of her fall on 28/11/95."
[29] At paragraph 8 of his reasons for decision the learned Chief Magistrate set out the task of the Court.
"Essentially therefore the task of the court (by agreement of counsel) is to determine whether Ms Dickin was incapacitated at all on 8 January 2002. It is agreed that no question of partial incapacity arises in this case. The onus, which is accepted by the employer is to prove on the balance of probabilities that on 8 January 2002 the worker was neither totally nor partially incapacitated within the context of Part V of the Act as a result of the work related injuries sustained on 25/11/95. On the pleadings the parties have agreed that if it is proved the worker was partially incapacitated at that time then the worker is nevertheless entitled to full payments of compensation to date and continuing until lawfully stopped or varied."
and at paragraph 33:
"The question may in fact be academic since, when it all boils down, this case relates to the question of cessation of benefits actually being paid as at 8 January 2002. The real question and issue in dispute (absent the legalese) is whether on 8 January 2002 there was any incapacity for work and if so did that incapacity arise out of or in the course of the workers employment as alleged."
[30] On 12 June 2002, the Work Health Court upheld the employer's notice cancelling compensation. Paragraphs 81 and 82 of the reasons for decision read as follows:
"81. Given all of the evidence and my assessment of it I am satisfied that the employer has established on the balance of probabilities that the worker as at 6 January 2002:-
81.1 Suffered from no physical injury or incapacity which related to her fall at work in November of 1995.
81.2 Did not suffer from any incapacitating psychiatric illness as a result of her fall of itself or by the fall aggravating a pre existing condition.
81.3 That (although it is not specifically pleaded by the worker) she suffered no disabling psychiatric condition as a result of the period of employment.
82. Overall the case under the Form 5 has been made out and the workers appeal against the decision to cease payments must fail. Should I be wrong as to the validity of the Form 5 notice then the employer has successfully made out the case in the counter claim."
[31] This decision went on appeal to the Supreme Court. The learned Judge at first instance delivered his reasons for judgment dated 5 December 2003. His Honour allowed the appeal and made orders reinstating the worker's payments of weekly compensation from 22 January 2002 and continuing. He also made orders for payment of arrears of weekly compensation payments, interest and costs.
[32] In the course of his reasons for judgment, his Honour held there had been a "miscarriage of justice". His Honour found that the Form 5 notice did not comply with the requirements of s 69(4) of the Work Health Act. The learned Judge at first instance found in paragraph [17] of his judgment as follows:
"… The notice fails for ambiguity. As in Normandy NFM Ltd v Turner [2002] NTSC 29, this notice in its terms purports to assert a state of affairs. It asserts nothing 'to enable the worker to whom the statement is given to understand fully why' she was paid compensation in full before the notice and is to be paid no compensation fourteen days after the notice. …"
[33] His Honour held further at paragraph [19] of his reasons for judgment:
"As may be seen the Chief Magistrate considered the real question to embrace not only whether as at 8 January 2002 the worker was incapacitated but in addition the irrelevant question whether that incapacity arose out of or in the course of the worker's employment. The latter question was irrelevant to the validity of the Form 5 Notice because the notice did not 'fully' inform the appellant of that question and the question of causation was not squarely raised in the medical certificates or in the counter-claim. It was therefore, as I have said, irrelevant to the proceedings. Furthermore the compromise agreement recorded with the Work Health Court had the effect of a judgment of that Court. The Work Health Court is a court of record: s 93 Work Health Act. In view of s 108(6) Work Health Act the recording of the agreement constituted, in effect, a consent judgment. The respondent was thereby estopped from alleging that the worker's initial incapacity was not work-related."
[34] The learned Judge made orders that the appeal be allowed and the orders made by the Work Health Court on 25 June 2003 be set aside. The worker's payments of weekly compensation were reinstated and were ordered to be ongoing. Orders were made for payment of arrears of weekly compensation payments. There were further orders for payment of interest and costs.
[35] The employer lodged a notice of appeal to the Court of Appeal seeking orders that the orders of the learned Judge made on 5 December 2003 be set aside, that the decision and orders of the Work Health Court made on 25 June 2003 be reinstated and that the worker pay the employer's costs of the appeal in the Supreme Court and before the Court of Appeal.
[36] The grounds of appeal in the notice of appeal filed on 19 December 2003 are in considerable detail and fall broadly under the following headings.
1. The scope of the counterclaim and conduct of the parties' cases in the Work Health Court, including the question of issue estoppel.
2. The alleged failure by the learned Chief Magistrate to give reasons for allowing the counterclaim.
3. Whether or not the Form 5 providing notice of cancellation complied with the requirements of s 69(4).
Ground 1: The scope of the counter claim and conduct of the parties' cases in the Work Health Court, including the question of issue estoppel.
[37] The worker in her amended statement of claim pleaded in paragraph 5:
"5. As a result of the injuries the Worker has been and continues to be incapacitated for employment.
PARTICULARS OF INJURIES
5.1 stress;
5.2 depression;
5.3 anxiety;
5.4 injured elbow;
5.5 injured shoulder;
5.6 aggravation of pre existing whiplash condition ("the injuries"); and
5.7 an exacerbation, acceleration and recurrence or deterioration of a pre-existing anxiety condition."
[38] The claim under paragraph 5.7 was in fact abandoned at the hearing before the learned Chief Magistrate.
[39] The defendant had filed an amended notice of defence dated 21 February 2003. Paragraph 5 of the amended notice of defence stated that the employer admitted that the worker was previously incapacitated for work in respect of certain injuries for which she claimed compensation, but says that the worker is no longer incapacitated for work as a result of those injuries or alternately if the worker is incapacitated it is not as a result of an injury arising out of or in the course of the worker's employment with the employer. In this context when paragraph 5 of the notice of defence is read with the counterclaim, it is clear the employer was contending that the worker was no longer incapacitated for work as the result of her work related injury of 28 November 1995 by 8 January 2002.
[40] Section 110A of the Work Health Act provides as follows:
"110A. Procedure
(1) The procedure of the Court under this Division is, subject to this Act, the Regulations and any rules or practice directions made or given specifically for the conduct of the business of the Court, within the discretion of the Court.
(2) The proceedings of the Court under this Division shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matter permits.
(3) Subject to this Act, the Court in proceedings under this Division is not bound by any rules of evidence but may inform itself on any matter in such manner as it thinks fit."
[41] At paragraph [19] of his reasons for judgment the learned appeal Judge, Angel ACJ, found that the recording of the agreement constituted a consent judgment and that the worker was thereby estopped from alleging that the worker's initial incapacity was not work-related.
[42] There is no appeal by the employer against his Honour's finding that the employer is estopped from alleging that the worker's initial incapacity was not work-related.
[43] The employer accepts it is bound by the agreement that on or about 28 November 1995 the worker sustained these injuries: "stress, depression, anxiety, injured elbow, injured shoulder, aggravation of pre existing whiplash condition" all of which arose out of or in the course of her employment with the employer. For reasons I will now explain, I consider that matters have moved on since that agreement was entered.
[44] On the issue of the notice of decision in January 2002 cancelling compensation some 4½ years after the recording of the agreement, a distinct and separate issue arose. In O'Donel v The Commissioner for Road Transport and Tramways (New South Wales) (1938) 59 CLR 744, Evatt J said, at 763:
"… The argument involves and is based upon the fallacy that, where an issue between A and B relates to a state of things which is capable of subsequent alteration, the conclusive determination in A's favour of that state of things as at one day plus conclusive proof that up to a later day there has been no alteration of such state of things establishes in A's favour as against B an estoppel as to the state of things existing at the later day. If, for instance, a court held that, on June 30th, 1935, the value of Blackacre was £50,000, and if, in subsequent proceedings between the same parties to determine the value of Blackacre as at June 30th, 1936, it was also proved that there had been no increase or decrease in the value of Blackacre between June 30th, 1935 and 1936, a court which has jurisdiction to determine the value as at the second date is not bound to find that there is an estoppel as to the value of Blackacre as at the second date. Similarly here. What the appellant is trying to do is to eke out a conclusive determination that incapacity through blindness as at an anterior point of time can, by additional proof of absence of any change in the meantime, be converted into a conclusive determination of incapacity through blindness at a later point of time. But this method, though logically sound, is not permitted by law. Estoppel by judgment estops not only as to the res determined but also as to the fundamental issues necessarily involved in the determination, but it does not authorize the use of each issue originally determined merely as the first but unbreakable link in establishing a separate and independent issue. In other words, as against a successful party the unsuccessful party is bound by the authoritative determination of every fundamental issue but when a distinct and separate issue arises subsequently, he is not bound to submit to the second issue being established by the combination of a former issue with additional evidence, no matter how strong such evidence may be."
[45] I agree with the submission made by Mr Barr, counsel for the employer, that estoppel was irrelevant on the appeal to the Supreme Court and is irrelevant on this appeal because the employer did not seek to prove at trial that the worker's initial incapacity was not work related.
[46] The recording of the memorandum of agreement did not estop the employer from contending as it did before the learned Chief Magistrate that the worker was either no longer incapacitated or that her present incapacity, as distinct from her initial incapacity, is no longer work related.
[47] The parties are bound on appeal by the manner in which they have conducted their cases at first instance. In Whisprun Pty Ltd v Dixon [2003] HCA 48, Gleeson CJ, McHugh & Gummow JJ said, at paras 51 - 53:
"51 ….. It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial. Nothing is more likely to give rise to a sense of injustice in a litigant than to have a verdict taken away on a point that was not taken at the trial and could or might possibly have been met by rebutting evidence or cross-examination. Even when no question of further evidence is admissible, it may not be in the interests of justice to allow a new point to be raised on appeal, particularly if it will require a further trial of the action. Not only is the successful party put to expense that may not be recoverable on a party and party taxation but a new trial inevitably inflicts on the parties worry, inconvenience and an interference with their personal and business affairs.
52. As Water Board v Moustakas (1988) 180 CLR 491 at 498 makes clear, a point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is 'necessary to look to the actual conduct of the proceedings'. Thus in Water Board, the plaintiff's case at trial had been that his employer was negligent in failing to prevent traffic from crossing in to the lane in which he was working. On appeal, the Court of Appeal of New South Wales allowed the plaintiff to raise a case that the employer was negligent in failing to provide a barrier to prevent the plaintiff from straying into the adjoining lane. This Court held that, although this alternative case was within the particulars, it had not been the plaintiff's case at the trial and the Court of Appeal had erred in allowing it to be raised on appeal.
53. As in Water Board, the case for Ms Dixon as formulated in the Court of Appeal is not the case that she ran at the trial. Moreover, it is a virtual certainty that, if such a case had been run at the trial, Whisprun would have wished to cross-examine the doctors. Because that is so, the Court of Appeal erred in considering this alternative case. No miscarriage of justice occurred because the trial judge considered the case that Ms Dixon ran at the trial. It follows that the Court of Appeal should have dismissed the appeal by Ms Dixon."
[48] A reading of the transcript of evidence before the Work Health Court demonstrates that the main issue at trial was whether the worker was still incapacitated and if so whether her incapacity was from some other cause other than the work injury for which liability to pay compensation had been admitted and payments made.
[49] At the hearing before the learned Chief Magistrate the employer was dux litus. Counsel for the employer opened on the events that had occurred in the worker's life since November 1995, which included a relationship problem leading to her being admitted to Kennore Hospital for psychiatric treatment or observation, a serious car accident, an allegedly violent domestic relationship and certain health problems suffered by the worker which included a brain tumour requiring a surgical procedure for removal on 13 October 2000. It was the submission on behalf of the employer in opening its case before the Work Health Court that the effects of the work related injury in November 1995 had disappeared by January 2002 when her workers compensation payments were cut off.
[50] During the employer's case in the Work Health Court, evidence was led from Dr Kutlaca. His report was tendered without objection by counsel for the worker. Evidence was led from Dr Timney and his report was also tendered without objection by counsel for the worker. Both doctors were cross examined by counsel for the worker.
[51] Evidence was led by the employer from Dr Cameron the neurologist and he was cross examined by counsel for the worker.
[52] Evidence was given by the worker Gail Dickin who essentially agreed that she had undergone a series of stressful events since the work related injury in November 1995. Some of these stressful events I have already made reference to. From a reading of the transcript of evidence before the Work Health Court, the worker does appear to be minimising the effect of these subsequent stressors and maintaining the significance of the fall at work in November 1995.
[53] Evidence was presented for the worker by Dr McLaren in response to the evidence given by Dr Timney who contended that the injury of 28 November 1995 was not the cause of the worker's current incapacity. Dr McLaren who is the worker's treating psychiatrist gave evidence before the Work Health Court. Dr McLaren gave evidence that he had been engaged to examine Ms Dickin on 14 December 1995. He examined Ms Dickin and prepared a report dated 20 December 1995. This report was tendered Exhibit W10 (AB 574). Dr McLaren prepared a second report dated 25 January 2002, Exhibit W11 (AB 578). The third report prepared by Dr McLaren dated 25 September 2002 is Exhibit W12 (AB 582). The fourth and final report prepared by Dr McLaren and tendered Exhibit W13 is the report dated 7 January 2003.
[54] In the report Exhibit W13, Dr McLaren takes issue with the conclusion reached by Dr Kutlaca and Dr Timney with respect to Ms Dickin. Dr McLaren states on p 2:
"In attempting to say that the work-related factors are not significant in her present mental symptoms, both psychiatrists are making the same mistake. Assuming incidents can have a continuing deleterious effect on the mental state, then, if we were to list all the incidents that have occurred in this lady's life over the last twelve years, her work-related incidents would still be significant in their contribution to her present mental state. It is only by sleight of hand that anybody can define them out of the causative process. Anybody who wished to say that work-related events are no longer materially significant must show why this is the case and must also show why non-work-related factors necessarily are wholly significant. That is, it is necessary to show why the car accidents can have a continuing effect when the work factors cannot. I do not believe this can be done."
[55] From a reading of the transcript of evidence before the Work Health Court the worker's legal representatives clearly understood the case put by the employer and conducted the worker's case accordingly. In Miller v Cameron and Others (1936) 54 CLR 572 Latham CJ said at 576 - 577:
"It was urged that this evidence should not have been taken into account by the learned Judge because the fact to which it was relevant (the character of the defendant) was not pleaded. It is true that if evidence which is irrelevant to any issue is wrongly admitted neither the Court of first instance nor a Court of appeal should pay any attention to it for the purpose of deciding the case, and it may be that in such a case a new trial should be ordered or other remedy given in an appellate Court (Jacker v. International Cable Co. Ltd. (1888) 5 T.L.R. 13). The position, however, is very different where the evidence said to have been wrongly admitted is clearly relevant to an issue which might have been raised by the pleadings for the purpose of supporting a claim made or a defence raised, where it has been admitted without objection, where no party has been taken by surprise, and where all parties have had the opportunity of giving evidence on the matter, and a fortiori when they have used that opportunity."
[56] Mr Davies said toward the close of his opening (AB 18):
"… at the end of the day, in relation to the primary question on this strict appeal, if you like, the primary question to be decided, is whether upon the consideration of all of the evidence, the employer has proved the facts as set out in the certificate. And if so, whether, as a matter of law, those facts support the conclusion that the workers weekly compensation payments should be cancelled.
Now what we say, is that she is no longer incapacitated from work, as of 8 January 2002 ….. as a result of the work related injury, yes. And indeed, when one comes to the counterclaim, really it's the same question, was she incapacitated from work, at that time, as a result of the work injury of 28 November 1995."
[57] In his opening address in the Work Health Court, counsel for the worker stated that the case for the worker is that the Form 5, issued in January 2002, is defective. He submitted that the Form 5 did not comply with s 69 of the Work Health Act in that the employer, in attempting to terminate the weekly payments, had only looked at the psychiatric aspect and had not covered the physical aspect.
[58] I note that the notice (including the certificates of the doctors) did not restrict itself to any type of injury but, rather, recorded the opinion that the worker was no longer incapacitated. It is clear that the certificate covered all bases of claimed incapacity. The proceedings before the Work Health Court dealt with both physical and psychiatric issues and there was no suggestion that the worker did not know that both aspects of her alleged incapacity were being addressed. In the circumstances of this matter - including the long history - the notice was sufficient to make it clear that all alleged incapacities had resolved.
[59] Counsel for the worker in the Work Health Court then went on to state that the substantive issue as opposed to the procedural issue is for all intents and purposes what the counterclaim is about.
[60] Counsel for the worker then went on to outline the evidence to be called for the worker which included the worker herself, Dr Kennedy, Dr McLaren and Dr Meadows.
[61] The estoppel issue was argued before the learned Chief Magistrate following evidence given by Dr McLaren who was the first witness called for the worker.
[62] Counsel for the worker in the Work Health Court, argued that the Memorandum of Agreement (Exhibit W14) precluded the employer from cross examining the witnesses as to what happened in 1995. It was not suggested the estoppel existed for all time. In fact counsel for the worker stated (AB 186): "I'm not saying that there is no longer any live issues for your Worship to determine." He then proceeded with further submissions to the effect that the employer had not complied with s 69 of the Work Health Act with respect to cessation of payments. Counsel for the worker also agreed with the learned Chief Magistrate that the employer making payments of weekly compensation does not preclude an employer from subsequently raising the issue that they are no longer required to continue payments and challenging certain matters in relation to incapacity. Counsel for the worker concluded his argument by stating (AB 195): "… the only issue now is the level of incapacity, as at January 2002. On the counterclaim."
[63] No objection was taken at the trial before the learned Chief Magistrate to the employer's case going outside the pleadings, when counsel for the employer opened the employer's case and tendered the reports of Dr Kutlaca and Dr Timney. If such objection had been made the employer would have had the opportunity to seek to amend the pleadings in particular the counterclaim.
[64] Counsel for the worker did raise objections to evidence being given under cross examination of the worker and her witnesses which was directed to her capacity for work prior to the date of the Memorandum of Agreement dated 7 July 1997.
[65] For example, during the cross examination of Dr McLaren (AB 153), counsel for the worker raised the following objections:
"MR DOWNS: I object to this line of questioning on the grounds of relevance. The situation of her having a psychiatric condition has been acknowledged by the employer in the agreement that has been filed in the court in this matter. And I take this opportunity to tender that agreement and the employer cannot revisit things back beyond the date of the agreement."
[66] His Worship then ruled that he would take the evidence de bene esse and subject to later argument on whether there was an issue estoppel.
[67] Mr Southwood QC prepared a document dated 14 May 2004 entitled "Appeal Book references for evidence which should have (been) excluded by virtue of the Estoppel upheld by Justice Angel". Mr Southwood QC then enumerated the passages in the transcript of evidence before the Work Health Court in respect of which evidence should have been excluded from Dr McLaren, Dr Meadows, Gail Dickin, Keith William Boates and Hans Werner Allmich.
[68] The main argument advanced by Mr Downs, who appeared on behalf of the worker in the Work Health Court, with respect to the issue of estoppel, is set out at AB 181 - 197. At AB 198 - 199, the learned Chief Magistrate made the following ruling:
"… Well, for a number of reasons, some of which I've sort of alluded to in arguendo with Mr Downs and others of which are as follows. That this court has a job not only to determine things in accordance with pleadings. It is a pleadings court, but nevertheless, we're to proceed to hear and determine matters on their merits in a quick and efficient manner. It seems to me that we need, at the end of the day, to find a means by which we determine the real issues between the parties and there's [a] lot of authority for saying that pleadings can be amended and other things can be done to ensure that the proper issues in dispute are determined by the courts.
Line of authorities in relation to that, include that case of Frog v Clough and Rogers, which I admit I remember quite well for personal reasons. But - so for those reasons - for that reason, plus the fact that it appears on the pleadings to be a dispute as to the extent of admissions on the agreement, plus the agreement itself is in its terms, vague and uncertain, in that the - many of the facts and issues which Mr Downs would want me to have act as an estoppel, relate to matters which the worker claims as existing from the employer admitting the agreement itself says very little about what is actually agreed between the parties.
The document, as I indicated to Mr Downs, is rather badly drafted, because it was serving as a - for administrative purposes, rather than for binding purposes upon the parties. And in any event, it would seem to me that the real gravamen of the document, is the promise to pay compensation to date and continue it until ceased in accordance with the law, is really what it's about. And we are here to determine whether or not payments were ceased, or are entitled to be ceased as at a particular date and time. That is the issue between the parties and that is the issue that I will take procedural steps to ensure that we attempt to determine.
For those reasons, I'll allow if necessary the employer to re-open the case to tender the document, if it's not already tendered in the course of cross-examination of the worker. And I'll allow the evidence as necessary to achieve a sensible legal argument as to the adequacy of the form 5, since that's clearly a matter which is in dispute. And I'll allow evidence to enable those issues and all of them to be determined on the merits rather [than] on mere technicalities.
And, in order that I think, answers the form 5 issues raised by Mr Downs, most - with some considerable ingenuity and the question then is, to the extent of the evidence to which I'll allow to be given during the worker's evidence and the cross-examination thereof. It seems to me that the issues since pleadings include the issues as the extent of the agreement. All issues including the injuries actually sustained will be the subject of evidence and final submissions."
[69] It is the submission by Mr Southwood QC on behalf of the worker that the learned Chief Magistrate could not have come to the conclusion that Dr McLaren was in error if he had confined the evidence before him and conducted the hearing in accordance with the estoppel found by the learned Judge on appeal.
[70] Mr Southwood QC makes similar submissions with respect to the evidence of Dr Meadows and the worker herself. The argument for the worker is that as a result of the learned Chief Magistrate's failure to conduct the hearing of the worker's application in the Work Health Court in accordance with the estoppel found by Angel ACJ, the hearing miscarried and the worker did not receive a fair hearing.
[71] On the appeal to this Court counsel for the worker, Mr Southwood QC, submits that the Chief Magistrate's failure to uphold the estoppel contended for by the worker and upheld by Angel ACJ, resulted in a miscarriage of justice. Mr Southwood QC argued that the employer was allowed to litigate issues which it was estopped from litigating and to tender inadmissible evidence (by cross examination and otherwise) which was subsequently wrongly relied upon the learned Chief Magistrate to reject the evidence of Dr McLaren and Dr Meadows and to prefer the evidence of Dr Kutlaca and Dr Cameron.
[72] Mr Southwood QC further argues that had the evidence during the hearing of the worker's application in the Work Health Court been confined in accordance with the estoppel upheld by Angel ACJ, there is a real possibility that the result in the Work Health Court would have been different.
[73] I do not accept this argument. I prefer the position as put by Mr Barr, counsel for the employer, which is that the trial magistrate properly permitted counsel for the employer to cross examine as to the worker's original injuries and her histories given to doctors in 1995 and subsequently - not to decide whether the injuries had occurred or not, but in order to consider:
"8.1 the nature, extent, seriousness and enduring effects of the original injuries;
8.2 whether the alleged precipitating stressors were still present;
8.3 the worker's ongoing incapacity (if any) and its connection (if any) to the original injuries;
8.4 incidentally, the worker's credit, which was a significant issue at trial, in particular but not restricted to the reliability of her histories to her treating medical practitioners throughout."
[74] From a reading of the transcript of proceedings before the Work Health Court there was also cross examination of Dr McLaren and Dr Meadows concerning the incidents that had occurred since November 1995 which have been referred to as the "post stressors".
[75] There was evidence to support the learned Chief Magistrate's findings that as at 6 January 2002 the worker was no longer incapacitated for work as the result of her work related injury. There was evidence in the report prepared by Dr Cameron (Exhibit E6, AB 525 - 530) that her physical injuries had "settled within a few weeks" following her fall in November 1995 and that there was no evidence as at the date of his report on 3 March 1998 of any "organic problem which one could relate to any of the accidents suffered at this stage". There was also a report from Dr Kutlaca dated 10 December 2001 that the worker was not suffering any diagnosable psychiatric disorder in relation to her work-related allegations.
[76] Both Dr Cameron and Dr Kutlaca gave evidence to the Work Health Court. Accordingly, there was evidence to support the findings made by the learned Chief Magistrate.
[77] The learned Chief Magistrate did review the evidence Dr McLaren but this was in the context of assessing the credibility of the evidence given by the worker. The learned Chief Magistrate came to the conclusion that Dr McLaren had fallen into error in accepting what he was told by the worker. Such a finding was open to the learned Chief Magistrate on the evidence.
[78] The employer's case was not that the worker's initial incapacity was not work related, rather, the employer's case was that, on 8 January 2002 the worker was not incapacitated as a result of the (work related) injuries sustained on 25 November 1995.
[79] Whilst the learned Chief Magistrate did not acknowledge the estoppel, he correctly formulated the question that was for him to decide and made findings accordingly.
[80] If I am wrong in concluding that the learned Chief Magistrate was not in error in allowing the cross examination which is the subject of objection by counsel for the worker, then it is clear that it was not an error which led him to an incorrect conclusion on the essential issue he was to decide. The learned Chief Magistrate's findings were directed to the worker's incapacity or otherwise as at the date of the notice of decision being 8 January 2002. Accordingly, any such error did not vitiate his decision.
Ground 2: The alleged failure by the learned Chief Magistrate to give reasons in respect of the counterclaim.
[81] I do not consider the learned Chief Magistrate was in error.
[82] I agree with the submission made by Mr Barr that the issue of the worker's incapacity (if any) as at 8 January 2002 and whether such incapacity was caused other than by her original injury or injuries suffered on or about 28 November 1995 were issues common to the worker's appeal against the notice of decision, the employer's defence thereto and the employer's counterclaim.
[83] The counterclaim mirrored the notice of decision. The counterclaim did not expand the grounds. It posed the same question in a different way.
[84] The reasons with respect to the notice of decision (also referred to as the Form 5 Notice) had been set out in detail by the learned Chief Magistrate and did not need to be repeated. There was no error of law.
Ground 3: Whether or not the Form 5 providing notice of cancellation complied with the requirements of s 69(4).
[85] The validity or otherwise of a notice of decision (Form 5 Notice) has been the subject of a number of decisions by the Supreme Court. In Collins Radio Constructions Inc v Day (1998) 143 FLR 425 at 430 the Court of Appeal said:
"Adopting what was said in Johnston v Paspaley Pearls Pty Ltd, the question can be narrowed down to whether the requirement that the certificate served upon the worker should indicate that the worker has ceased to be incapacitated for work is of such importance to the object of the statute as to disclose an intention that its complete non-observance should invalidate the action of the appellant in cancelling the respondent's weekly benefits. For the reasons given by the learned Chief Justice, we think that the answer to this question must be 'yes', and that it is clear beyond question that the requirements of s 69(3) as to the contents of the certificate may not be ignored. However, we would not go so far as to say that a form of words other than those prescribed by the subsection could never amount to compliance. If, for example, Dr Awerbuch had certified that the appellant was 'capable of returning to employment full-time in all forms of employment for which she had any previous experience' this, or some other suitable words, would convey the same meaning as 'ceased to be incapacitated for work'. We do not think it was the intention of the legislature that only the precise words chosen by the legislature, and no others conveying the same meaning, would suffice. Obviously those who draft these certificates would be wise to follow the words of the statute, but they are not to be treated as possessing special magical powers which other words to like effect do not. It is not necessary to decide whether words conveying the same meaning comply 'strictly' or 'substantially' with the subsection."
[86] In this case the notice of decision (Exhibit E28 - AB 625 - 632) is accompanied by a letter dated 8 January 2002 which accurately summarised the content of reports from Dr Kutlaca and Dr Timney and their respective findings. It was also accompanied by medical certificates from Dr Kutlaca and Dr Timney which state as follows:
"MEDICAL CERTIFICATE
I, David D. Kutlaca, Medical Practitioner (qualification), HEREBY state that I have examined the worker, Gail Dickin on 6/12/01 (date) in relation to his/her work injury.
As a result of that examination I CERTIFY that the worker has ceased to be incapacitated for work as a result of the work injury.
DATE: 17th DAY OF DECEMBER 2001
(signed)
(Doctors name and signature)
MEDICAL CERTIFICATE
I, Brian Robert Timney, Medical Practitioner (qualification), HEREBY state that I have examined the worker, Gail Dickin on 29/10/01 (date) in relation to his/her work injury.
As a result of that examination I CERTIFY that the worker has ceased to be incapacitated for work as a result of the work injury.
DATE: 17th DAY OF DECEMBER 2001
(signed)
(Doctors name and signature)"
[87] On the face of these documents, read together, the worker was given sufficient detail to enable her to understand fully why the amount of compensation was being cancelled.
[88] The worker's counsel in the trial before the learned Chief Magistrate argued that a statement in the approved form as required by s 69(1)(b) of the Work Health Act had not been complied with because it "does not address any certificate in respect of the physical injury" (AB 411). In his reasons for decision the learned Chief Magistrate found that there had been sufficient compliance.
[89] There was no evidence given by the worker in the trial before the learned Chief Magistrate to the effect that she did not understand the reason why her compensation was cancelled. Whilst such evidence may not have been strictly necessary it is relevant to the fact that the issue of compliance with the requirements of s 69 of the Work Health Act in the way in which it is now argued was not before the Work Health Court.
[90] I consider that the employer has complied with s 69 of the Work Health Act and that this ground of appeal has been made out.
[91] Closely associated with the issue of compliance with s 69 of the Work Health Act is an appeal from the finding of the judge on appeal that the notice of decision (Form 5 Notice) was not properly verified by "contemporaneous medical certificates". In his reasons for judgment the learned Judge stated at paragraph [17] (AB 1008) his reasons why the notice of decision failed for ambiguity. He then states as follows:
"…A notice must unambiguously spell out why a current payment regime should change in clear terms that a lay reader can fully and readily understand. This notice demonstrably fails to do this. In addition the Form 5 Notice was not properly verified by contemporaneous medical certificates. I agree with the submission that in the present case there was no effective certification."
[92] No reasons are given for the finding that the medical certificates were not contemporaneous - see Mobasa Pty Ltd v Nikic (1987) 89 FLR 411. The medical certificates were both dated 17 December 2001. Dr Kutlaca had examined the worker on 6 December 2001 and prepared a report. Dr Timney had examined the worker on 29 October 2001 and prepared a report.
[93] The notice of decision is dated 8 January 2002. The certificates are dated approximately three weeks prior to the notice of decision. In the circumstances of this case I do not think it was correct to describe the medical certificates as not being contemporaneous.
[94] The learned Chief Magistrate had referred to and distinguished the decision of Riley J in Clinton Douglas Rupe v Beta Frozen Products [2000] NTSC 71. I agree that the decision of Riley J is distinguishable from the facts in the appeal before this Court. In Rupe v Beta Frozen Products (supra) Riley J found at paragraph [17]:
"… The document relied on to support the Form 5 was not what it purported to be. It complied with the requirement of form in s 69 of the Act but in truth what Mr Sen did not do was certify that the worker had ceased to be incapacitated for work as at 25 November 1998. At its highest Mr Sen speculated that such would be the case. That is not what s 69(3) required. The section requires certification that the worker "has ceased to be incapacitated for work" ie the certificate must speak effectively of the worker's recovery at the time the s 69 notice to discontinue weekly payments is issued. It cannot be known what opinion Mr Sen may have formed had he examined the worker on or near to the date of his certificate."
[95] In the appeal before this Court, two doctors are clearly stating that as at 17 December 2001 the worker has ceased to be incapacitated for work. On 8 January 2002, some three weeks later, the employer forwarded a notice of decision to cancel payments of weekly benefits.
[96] For the reasons I have outlined I would allow the appeal, set aside the orders of Angel ACJ dated 12 December 2003 and restore the order of the Work Health Court dismissing the application. As Angel ACJ did not consider ground 11 of the amended notice of appeal dated 16 October 2003 ordering the repayment of interim benefits, I would remit that question for determination by Angel ACJ. I would order that the respondent pay the appellant's costs of the appeal and before Angel ACJ to be taxed.
Riley J
[97] I have read the draft reasons for decision of Thomas J and agree with those reasons and the proposed orders.

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