Wilfred v Rigby [2004] NTSC 31

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HSE Mining Pty Ltd v Power [2004] NTSC 32

PARTIES: HSE MINING PTY LTD

v

KAREN ALISON POWER

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: APPEAL FROM THE WORK HEALTH COURT EXERCISING TERRITORY JURISDICTION

FILE NO: LA 5 of 2004 (20205642)

DELIVERED: 8 July 2004

HEARING DATES: 30 June 2004 and 1 July 2004

JUDGMENT OF: RILEY J

CATCHWORDS:

WORKERS COMPENSATION
Assessment and amount of compensation – calculation of worker’s entitlement to compensation for long-term incapacity - special payments – superannuation contributions made by employer to the worker – whether entitled to compensation in the form of weekly benefits.

WORKERS’ COMPENSATION
Whether worker failed to bring claim within the time prescribed by s 104 and s 182 of Work Health Act – whether learned magistrate erred in finding that superannuation formed part of the worker’s normal weekly earnings – whether learned magistrate erred in failing to find the worker had a capacity for work - whether work was reasonably available.
Legislation:

Work Health Act s 182 and s 104.
Cases:

Fenton v Owners of Ship ‘Kelvin’ (1925) 2 KB 473
Black v City of South Melbourne (1963) VR 34
Quinlivan v Portland Harbour Trust (1963) VR 25
Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32
Black v City of South Melbourne (1963) VR 34
Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32
Melbourne and Metropolitan Tramways Board v Witton (1967) VR 417
Northern Cement Pty Ltd v Ioasa (unreported, NTSC, 17 June 1994)
B.F. Martin CJ
Passmore v Plewright (unreported, NTSC, 4 April 1997)
Hastings Deering (Australia) v Smith (2004) NTSC 2
NT Drilling Pty Ltd v McFarland (2004) NTSC 23
Murwangi Community Aboriginal Corporation v Carroll (2002) 12 NTLR 121
Held
Appeal Dismissed

REPRESENTATION:

Counsel:
Appellant: S. Walsh QC
Respondent: M. Grant

Solicitors:
Appellant: Cridlands Lawyers
Respondent: Ward Keller

Judgment category classification: B
Judgment ID Number: ril0413
Number of pages: 22

ril0413

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

HSE Mining Pty Ltd v Power [2004] NTSC 32
No LA 5 of 2004 (20205642)

BETWEEN:

HSE MINING PTY LTD
Appellant

AND:

KAREN ALISON POWER
Respondent

CORAM: RILEY J

REASONS FOR JUDGMENT

(Delivered 8 July 2004)

 

[1] The respondent/worker was injured in the course of her employment as a “haulpac” driver with the appellant/employer. The injury occurred on 9 October 1996 and she reported the incident that day. On 23 October 1996 her employment was terminated by the employer.

[2] It was not until 14 January 1998 that the worker made a claim for compensation. At that time she referred to her injuries as “injured left thigh and lump on the head”. By notice dated 11 February 1998 the employer deferred accepting liability and then, on 10 March 1998, the employer denied liability for the claim.

[3] In the notice of denial one of the reasons for the decision was said to be: “You have not submitted your claim within six months from your date of injury as required under s 182 of the Work Health Act”. The letter accompanying the notice went on to advise:
“We have enclosed the appropriate form 5 notice which outlines our reasons for the denial. The form 5 states that if you wish to contest our decision you must apply for mediation within 14 days from the date of this notice or lodge an application to the Work Health Court within 28 days from the date of this notice.”

[4] On 7 March 2002 the worker lodged a further claim for compensation arising out of the same accident but this time identified her injuries as “psychological damage” and “post-traumatic stress”. Again the employer denied liability. Thereafter the worker made application to the Work Health Court seeking benefits under the Work Health Act. The matter proceeded to trial and, pursuant to reasons for decision delivered on 30 January 2004, it was found the worker suffered a psychiatric injury and the employer was directed to pay benefits to the worker under the provisions of the Act. The finding of a psychiatric injury is not challenged on appeal.

[5] Section 116 of the Work Health Act permits a party who is aggrieved by a decision or a determination of a magistrate of the Work Health Court to appeal against the decision or determination “on a question of law”. At the commencement of the hearing before this Court the employer indicated that it pressed four grounds of appeal and abandoned the remaining grounds.
Ground 1 – Section 182

[6] The first ground of appeal was that the learned magistrate erred in concluding that there was any or sufficient evidence to determine that the worker’s failure to bring a claim within the time prescribed by s 182 of the Work Health Act was occasioned by ignorance of disease, absence from the Territory or other reasonable cause.

[7] At the relevant time subsections 182(1) and (3) of the Work Health Act were in the following terms:
“182. TIME FOR TAKING PROCEEDINGS
(1) Subject to subsections (2) and (3), proceedings for the recovery under this Act of compensation shall not be maintainable unless notice of the injury has been given before the worker has voluntarily left the employment in which he was injured and unless the claim for compensation has been made -
(a) within 6 months after the occurrence of the injury or, in the case of a disease, the incapacity arising from the disease; or
(b) in the case of death, within 6 months after advice of the death has been received by the claimant.
(2) ….
(3) The failure to make a claim within the period specified in subsection (1) shall not be a bar to the maintenance of the proceedings if it is found that the failure was occasioned by mistake, ignorance of a disease, absence from the Territory or other reasonable cause.

[8] The learned magistrate considered in detail the circumstances surrounding the failure of the worker to make a claim for compensation within six months of the occurrence. He determined that the failure was occasioned by her ignorance of disease, absence from the Territory and other reasonable cause. He therefore concluded that the failure was not a bar to the maintenance of the proceedings for compensation.

[9] On appeal the employer contended that his Worship erred in law in making each of those findings. It was conceded that should any one of the findings be sustained, the appeal on this ground must fail.
Ignorance of a disease

[10] The ultimate finding of his Worship was that the worker suffered a psychiatric injury on 9 October 1996 which resulted in an incapacity for the purposes of the Work Health Act.

[11] At the time of the accident the worker understood that she suffered only physical injuries. The incident report completed on the day recorded that she suffered a bruised leg and a bump to the head. In the period following the accident the worker became aware that her mood and disposition was different from what it had been. His Worship found she was a simple natured and unsophisticated person who was unaware that she suffered from any psychological condition, or even of the notion of a “mental injury”. She was unaware that the difference in her mood might have been characterised as “a disease”. In effect, his Worship found that she knew that after the accident her mood and disposition changed, but no more.

[12] It was not until she formed a relationship with her current partner that the nature and effect of her condition became apparent. Over the intervening period she had developed a phobia for driving, she suffered symptoms of anxiety including social anxiety and she was self-medicating with alcohol to relieve anxiety. After a period, her partner advised her that something was wrong with her and that she should seek help. She then saw her general practitioner and was referred on to the psychiatrist, Dr Booth. Dr Booth gave evidence that he saw the worker on 3 March 1999. He initially diagnosed her as suffering from post-traumatic stress disorder following upon the accident of October 1996. In his evidence to the court he said that the correct diagnosis is post-traumatic stress syndrome but there were “additional features of post-traumatic stress syndrome which is basically a subcategory of depression, so it’s depression with certain added features”.

[13] His Worship accepted there may be a delay between the precipitating event and the onset of full symptoms in circumstances such as are found in this case. He referred to the judgment of Pollock MR in Fenton v Owners of Ship ‘Kelvin’ (1925) 2 KB 473 at 483 which, he noted, provided some guidance, albeit referable to the excuse of “reasonable cause”:
“… there may be a number of graduations, questions of degree, as to whether or not the workman was apprised so clearly of his condition, its origin and its future, as to compel him or throw upon him the duty of giving notice. When, however, the true measure of the situation is only arrived at by lapse of time and by confidence in the diagnosis which arises from the progress of the disease, particularly where the injury is what may be called latent, then I think that the workman is more readily excused. But the measure of these degrees, the estimate of these graduations are questions of fact which are for the learned County Court judge.”

[14] His Worship concluded that the diagnosed psychiatric injury satisfied the definition of a “disease” for the purposes of the Work Health Act. There is no challenge to that finding. He took into account the educational background and the intellectual capacity of the worker and the diminished understanding she displayed of her condition. A reading of her evidence makes it clear that even at the time of the hearing in 2003 her understanding was quite limited. His Worship went on to conclude:
“In my opinion, after having regard to the worker’s own evidence, the medical evidence and the personal attributes of the worker I am satisfied on the balance of probabilities that the worker did not become cognisant that she had suffered psychiatric injury – a disease – until late 1998 or early 1999, considerably more than six months after the occurrence of the injury. Accordingly, I am satisfied on the balance of probabilities that the worker’s failure to comply with the time requirements of s 182(1) was occasioned by ignorance of disease.”

[15] In so concluding his Worship rejected the submission made on behalf of the employer that the worker had been aware of her symptoms following the accident and was therefore precluded from relying upon ignorance of a disease as an excuse for her failure. That submission was made again in this Court. It was contended for the employer that it was not necessary for the worker to understand “the label” attached to her condition, but rather she need only understand that she had a disability attributable to the accident. Reference was made to her evidence that within the six month period she suffered anxiety and felt moody and would be sweating and shaking when in a motor vehicle. It was submitted that she was aware of these symptoms at the relevant time and was therefore required to give notice. It did not matter, it was submitted, that she did not know that her condition amounted to post-traumatic stress disorder.

[16] With respect to the argument put to his Worship and now repeated, his Worship did not err in the manner described. He observed, correctly in my view, that a person may be aware of certain symptomatology without appreciating that it was a condition of any kind, let alone a disease. The effect of the findings of his Worship was that the worker had no real comprehension of what was happening to her, why she had changed or, indeed, that there was anything “wrong” with her until this was pointed out to her by her partner much later. She was unaware that she suffered a work related mental injury until she saw Dr Booth. Her ignorance went beyond a lack of understanding of labels such as post-traumatic stress disorder.

[17] When she lodged her first claim for compensation on 14 January 1998, which followed an attendance upon a firm of solicitors, she did not refer to any psychological or mental problem. She simply referred to relatively minor physical injuries. Notwithstanding that she was making a claim for compensation under the Work Health Act and doing so with the assistance of lawyers, no mention was made of any psychological damage flowing from the accident. This, it might be thought, reflected the state of her understanding of her condition. In the context of workers compensation she was only cognisant of her physical injuries. It was not until she had seen the psychiatrist, Dr Booth, long after the relevant six month period had expired that she lodged a claim referring to her “psychological damage” arising from the accident. Awareness of her mental injury triggered the pursuit of the claim for compensation under the Work Health Act.

[18] It was further submitted that there was no direct evidence from the worker that the ignorance found by his Worship “occasioned” the failure to comply with the requirement to give notice. This was a matter of inference to be drawn from all of the surrounding circumstances. I see no error on the part of his Worship in drawing the inference that he did.

[19] It was open to his Worship to find that the worker did not have sufficient understanding of her psychological symptoms and their relationship to the accident to enable him to conclude that her failure to comply with the time requirements of s 182(1) was occasioned by her ignorance of the disease.

[20] On appeal the employer submitted that the failure of the worker to submit, within time, a claim in respect of her physical injuries was not explained. That may be so but given the nature of those injuries the worker may have thought a claim not worthy of pursuit. At the hearing she based her claim on the psychological consequences of the accident and the focus of the proceedings was on that aspect. The failure to deal timeously with the physical injuries does not assist the appellant.

[21] Having concluded that his Worship did not err in his findings in relation to this matter, it is strictly not necessary for me to consider the issues of “absence from the Territory” or “other reasonable cause” which were accepted by his Worship as further explanations for the failure to provide notice within time. However as these matters have been fully argued before me I will address them.
Absence from the Territory

[22] The evidence accepted by his Worship was that the worker left the Northern Territory approximately three weeks after the accident. His Worship concluded that absence from the Territory was, in her circumstances, an excuse for failing to make a claim for compensation within the required six month period. His reasons were as follows:
“Knowledge of legal rights and the making of a claim usually go hand in hand. A claim is usually engendered by knowledge of one’s rights. In the present case, I am reasonably satisfied that the worker’s absence from the Territory impaired or hindered her ability to acquire knowledge of her possible entitlements to worker’s compensation. The worker presented as a fairly simple natured person who was ignorant of her legal rights. In those circumstances, one would think that the prospect of her becoming apprised of her possible entitlements would be greater had she remained in the Territory. For example, there may have been continuing exposure to the employer. Certainly, the employer would have been more accessible to the worker for the purposes of obtaining advice as to her possible entitlements and the procedure for making a claim. But most importantly, continuing residence in the Territory would have had the potential to bring the worker into contact with local people with relevant knowledge which could have been passed on to the worker within a much shorter period of time. … In my opinion, the circumstance of the worker being absent from the Territory – the tyranny of distance – operated to prevent her from becoming apprised of her possible entitlements and making a claim within the time prescribed by s 182(1).”

[23] The employer complains that his Worship failed to consider whether the absence from the Territory “occasioned” the failure to comply with the relevant limitation period. The matters upon which his Worship relied were said to be matters of conjecture and assumption. The question to be answered was whether there was anything arising out of her absence from the Territory that explained her not giving notice.

[24] There is some strength in the submission made by the employer. There was no attempt on behalf of the learned magistrate to compare the position of the worker had she remained in the Northern Territory with the situation that prevailed in Western Australia. She had left her employment in unhappy circumstances and, had she resided in the Territory, would have been some hundreds of kilometres away from the location of her former employment. There is nothing in the evidence to suggest that she would have been “exposed” to her employer had she remained in the Territory. Communication by telephone or correspondence was equally available from within and without the Territory. It is difficult to see why in the circumstances the obtaining of claim forms would be any less difficult from the Northern Territory than Western Australia. When the worker decided to make a claim she was able to obtain claim forms without apparent difficulty. The suggestion that she had “the potential” to come into contact with “local people with relevant knowledge” is, in my view, to resort to speculation. The prospect that she would come into contact with someone who knew about workers compensation was likely to be the same in Western Australia as it was in the Territory. Indeed she made contact with such people in Western Australia where the early conduct of her claim was through friends who had some knowledge of the workers compensation system.

[25] If I had been called upon to resolve this issue I would have found that his Worship erred in the conclusion he reached. The inference drawn by his Worship was not supported by any evidence.
Other reasonable cause
[26] The nature of “other reasonable cause” was discussed by his Worship. He made particular reference to Black v City of South Melbourne (1963) VR 34 at 38 where the following was said by the Full Court:
“The next question is whether there was ‘reasonable cause’ for the failure to give notice. The inquiry here appears to be of a much wider kind justifying a more liberal attitude. The expression ‘reasonable cause’ appears to us to mean some act or omission which operated to prevent the giving of notice, and which was an act or omission which was in the circumstances reasonable. In Quinlivan v Portland Harbour Trust (1963) VR 25 at p28, Sholl J used these words: ‘the subsection means to refer to a cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man’.”

[27] Reference was also made to the observations of Mildren J in Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 40.

[28] His Worship determined that there existed “other reasonable cause” for the failure on the part of the worker to bring a claim within the time prescribed by s 182. He identified a combination of her ignorance of her disease (as discussed above) along with her ignorance of the requirements of the section. His Worship also noted that the worker was reluctant to discuss her condition until it was diagnosed by Dr Booth. As was pointed out by counsel for the worker, the conclusion that those matters amounted to reasonable cause was consistent with the judgments in Black v City of South Melbourne (supra); Tracy Village Sports and Social Club v Walker (supra) and Melbourne and Metropolitan Tramways Board v Witton (1967) VR 417 at 418-420. There was an evidentiary basis for the conclusions of his Worship. I see no basis to find error on his part.
Ground 2 – Section 104

[29] The second ground of appeal was that the learned magistrate erred in determining the issue of the worker’s failure to bring an application within the time prescribed by s 104(3) of the Work Health Act “by having regard only to the evidence as to matters existing in the period between October 1996 and April 1997 rather than the relevant period between on or about 10 March 1998 and 8 April 1998 and subsequently”.

[30] Section 104 of the Work Health Act was, at the relevant time, in the following terms:
“(1) For the purposes of the Court exercising its powers under section 94(1)(a), a person may, subject to this Act, commence proceedings before the Court for the recovery of compensation under Part V or for an order or ruling in respect of a matter or question identical to or arising out of a claim for compensation under that Part.
(2) Proceedings under this Division may be commenced before the Court by application in the prescribed manner and form or, where there is no manner or form prescribed, in such manner or form as the Court approves.
(3) Proceedings in respect of a decision of an employer under section 69 to cancel or reduce an amount of compensation or under section 85 to dispute liability for compensation shall be commenced not later than 28 days after notice under the section in respect of the decision by the claimant.
(4) The failure to make a claim within the period specified in subsection (3) shall not be a bar to the commencement of the proceedings if it is found that the failure was occasioned by mistake, ignorance of a disease, absence from the Territory or other reasonable cause.”

[31] Contrary to the suggestion in the ground of appeal, the learned magistrate identified the correct period in his reasons for decision. In the course of his reasons the learned magistrate observed that “it is well established that the only period in respect of which an explanation in terms of s 104(4) of the Act is required is that period of 28 days immediately following receipt of the notice of decision pursuant to s 104(3)”. He clearly distinguished that period from the six month period relevant to s 182.

[32] The worker lodged her claim for compensation on 14 January 1998. Liability was denied by letter dated 10 March 1998. There was no direct evidence of when the worker received the letter of denial and it was noted that the address to which it was sent was that of a friend who had been assisting her. However she acknowledged having seen the letter at some time. Assuming, as his Worship has done, that she received the notice on or about 10 March 1998 the relevant period ran for 28 days from that date. That was the period considered by his Worship.

[33] The claim made by the worker on 14 January 1998, and rejected by the employer, referred only to her physical injuries. There was no reference to any psychological component of her incapacity. That is consistent with the lack of understanding of her symptoms referred to above. It was not until much later that she saw Dr Booth. The findings of his Worship that her failure to comply with the terms of s 182 was occasioned by ignorance of the disease has equal application to her failure to comply with the provisions of s 104 of the Work Health Act. Her claimed entitlement to compensation was based upon the psychological sequelae of her accident which were not then understood or appreciated. There is no error on the part of his Worship.

[34] His Worship also held the failure to comply with the provisions of s 104 was occasioned by her absence from the Territory. For the reasons discussed above in relation to s 182, I regard his Worship as having been in error in so concluding.

[35] In addition his Worship found that the failure to comply with the time requirements of s 104 was occasioned by “other reasonable cause”. The same causes identified in relation to s 182 were said to apply in respect of s 104. By this time the worker had consulted solicitors and was aware of the need to give notice of claim. However she remained ignorant of her disease and was therefore unable to give notice based upon her mental injury. Her continued state of ignorance was also capable of amounting to a reasonable cause. I see no error on the part of his Worship in so concluding.
Ground 5 – Capacity for work

[36] This ground was argued on a different basis from that set out in the notice of appeal. The submission of the employer was that his Worship erred in “failing to find the worker had a capacity for work when she chose not to exercise her capacity”.

[37] At the time of the accident the worker was employed as a “haulpac” driver. Prior to undertaking that employment she had worked for a substantial period as an “escort” in both Sydney and Darwin. Following the termination of her employment on 23 October 1996 she returned to Western Australia and in December 1996 worked for a week as an escort in Kalgoorlie and then, in early 1997, for a further three week period. Later in 1997 she was employed as an escort for a period of five months. Following upon entering into the relationship with her partner she ceased to work as an escort. When asked for the reason she said “Because I fell in love” and working as an escort was “inconceivable” in light of her relationship. It was the submission of the employer that the primary occupation of the worker had been as an escort and that this was relevant to her earning capacity after the accident. It was submitted that she did not cease that employment for reasons other than that she “fell in love” and that she maintained a capacity to earn income. She simply chose not to exercise it.

[38] In considering this issue the learned magistrate found that from 19 April 1997 through to 31 December 1998 the worker was employed intermittently as an escort. When she was so employed her average earnings were in the order of $300 per week. However, he went on to conclude that from 1 January 1999 (the accepted date upon which her relationship with her partner caused her to cease the work) the amount she was reasonably capable of earning if she were to engage in the most profitable employment available to her was nil. The complaint of the employer was that the learned magistrate ignored the evidence of her continued work as an escort following the accident and that she ceased that work because of the relationship.

[39] In order to consider this submission it is necessary to refer to the relevant provisions of the Work Health Act. By virtue of s 3 “incapacity” means an inability or limited ability to undertake paid work because of an injury. There is no dispute that the worker suffered an incapacity for the purposes of the Act. The evidence of the worker and also of the medical practitioners was that her continuing psychological condition precluded her from engaging in employment involving driving. She also experienced difficulty in travelling to and from work and interacting with the public, co-employees and employers.

[40] By virtue of s 53 of the Act compensation is payable to a worker when the worker suffers a relevant injury and that injury results in or materially contributes to her impairment or incapacity. At the time of hearing there was no longer any dispute that the worker was entitled to the payment of compensation and the only issue that remained was the calculation of the compensation payable.

[41] Section 64 of the Work Health Act deals with compensation payable during the first 26 weeks of incapacity. There was no continuing dispute regarding her entitlement during that period. The real issue related to her long-term incapacity which is dealt with by reference to s 65 of the Act. Under that section a worker who is partially incapacitated for work as the result of a relevant injury shall be paid, in addition to other compensation payable under the Act, compensation equal to 75% of her loss of earning capacity or 150% of average weekly earnings at the time the payment is made, whichever is the lesser amount. As the learned magistrate observed, the onus fell upon the employer to establish the amount that the worker is reasonably capable of earning. In Northern Cement Pty Ltd v Ioasa (unreported, NTSC, 17 June 1994) B.F. Martin CJ said:
“There is a distinction to be made between the onus resting upon the worker to show that partial incapacity for work, in the sense of suffering some inability or limited inability to undertake paid work because of an injury, and the amount which the worker is reasonably capable of earning within the parameters of s 65(2)(b). In respect of the quantification of loss of earning capacity, it is up to the employer to point to evidence in the case minimising his liability in monetary terms. It would be unreasonable to require the worker ‘to prove an open-ended negative’, such as that he was not capable of earning more than an amount which he chooses to rely upon. Once there is evidence to demonstrate incapacity and loss of earning capacity on the part of the worker, then minimising the financial consequence of such findings rests with the employer.”

[42] The learned magistrate identified the obligation upon the employer in the circumstances of this case as being to establish that there was work reasonably available to the worker, that the worker was capable of undertaking that work and the amount the worker would have earned in that employment. His Worship went on to conclude that the employer had failed to discharge the requisite burden. His conclusion was based upon the failure of the employer to satisfy the requirement “of a probability that employment was reasonably available to the worker”. On appeal the only challenge of the employer to the conclusions of the learned magistrate was related to the employment of the worker as an escort. It was not suggested that she had other work available to her in light of her injuries, and her limited skills, training, experience and the like.

[43] His Worship referred to the decision of this court in Passmore v Plewright (unreported, NTSC, 4 April 1997) in which the distinction between work reasonably available to a worker and work that a worker is physically capable of doing was identified.

[44] At the relevant time s 65(2) of the Work Health Act defined “loss of earning capacity” as meaning:
“The difference between the worker’s indexed normal weekly earnings and the amount, if any, he or she is from time to time capable of earning in a week in work he or she is capable of undertaking if he or she were to engage in the most profitable employment, if any, reasonably available to him or her, and having regard to the matters referred to in s 68.”

[45] Section 68 provided that, in assessing what is the most profitable employment available to a worker for the purposes of s 65, regard should be had to various matters including age, experience, language skills and “any other relevant factor” (s 68(g)).

[46] The learned magistrate concluded that after the worker met her partner, “on account of her own personal attitudes the worker felt she was unable to continue employment as an escort, once she became involved in the relationship with her new partner; and in any event the vocation was not one that would have been supported by her partner. The worker and her partner had a child in 2000. Since early 1999 the worker has not undertaken paid employment”. He therefore concluded that employment as an escort was no longer reasonably available to the worker after 1 January 1999. The fact that a certain kind of employment was undertaken by a worker at some stage of the worker’s life does not mean that such employment is “reasonably available” to him or her at a later time. For example, changes in personal circumstances such as sincerely held religious beliefs may make such employment unreasonable. The circumstances of this case provide another example. In my view the conclusion reached was open to his Worship by virtue of s 68(g).

[47] In any event, as his Worship noted, there was evidence that following the accident the worker was no longer suited for the work of an escort. She told his Worship that she constantly clashed with people, she regularly changed jobs because of her unsatisfactory interaction with people and the longest employment she had was for about six months. She worked in six locations in two and a half years. His Worship accepted the submission made on behalf of the employer that:
“When the worker relocated to Perth following the injury she had difficulties maintaining employment as an escort due to her injuries. She was brought into conflict with clients, co-workers and employers. She was employed in no fewer than six establishments over a period of two years. On the medical evidence, this history is attributable to the symptoms of the post-traumatic stress disorder as they manifested in irritability, alienation, social withdrawal and impatience. The worker’s evidence in relation to that symptomatology remained unchallenged.”

[48] There were two bases upon which his Worship found that the employer had failed to discharge the onus resting upon it. The first of those was that it had not established that there was employment which was “reasonably” available to the worker in light of her new relationship. The second was that it did not establish that there was work reasonably available to her in light of her psychological condition. I do not regard the learned magistrate as having fallen into error.
Ground 7 – Superannuation

[49] The employer appealed on the further ground that the learned magistrate erred in concluding that superannuation formed part of the worker’s normal weekly earnings for the purposes of calculating compensation payable.

[50] This is an issue that has been addressed in two recent decisions of this Court. It was addressed by Thomas J in Hastings Deering (Australia) v Smith (2004) NTSC 2 and by myself in NT Drilling Pty Ltd v McFarland (2004) NTSC 23. In the circumstances of each of those cases it was determined that superannuation formed part of the worker’s normal weekly earnings. In the present case the worker referred to the reasoning in those cases and also called in aid the decision of the Court of Appeal in Murwangi Community Aboriginal Corporation v Carroll (2002) 12 NTLR 121. The worker submitted that the reasoning in Hastings Deering (Australia) v Smith and NT Drilling Pty Ltd v McFarland should be followed in this matter. The employer conceded that the circumstances of the present matter are relevantly the same as in those cases and did not seek to distinguish this case. The employer acknowledged that the argument to be presented on this occasion did not differ from the arguments not accepted in the earlier cases.

[51] In the circumstances both parties contented themselves with formally putting their positions whilst noting that the issue is to be addressed by the Court of Appeal later this year.

[52] For the reasons expressed by myself in the matter of NT Drilling Pty Ltd v McFarland, I reject this ground of appeal.

[53] The appeal is dismissed.
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