Burns v Territory Insurance Office Board [2007] NTSC 38






FILE NO: M2 of 2005 (20513540)


HEARING DATES: 12–15 MARCH, 29–30 MAY 2007



Applicant: B O’Loughlin
Respondent: I Nosworthy

Applicant: –
Respondent: Cridlands

Judgment category classification: C
Judgment ID Number: Ang200709
Number of pages: 12


Burns v Territory Insurance Office Board [2007] NTSC 38
No. M2 of 2005 (20513540)







(Delivered 18 July 2007)

[1] On 24 March 1999 the applicant was driving a motor vehicle along the Stuart Highway towards Darwin. As she approached the Daly Street Bridge she lost control. The vehicle left the road and collided sideways with a pole supporting overhead power lines. As a consequence of the accident the applicant was severely injured. She was trapped in the vehicle for approximately one hour until released by the fire brigade with the aid of cutting equipment. The applicant was conveyed to the Royal Darwin Hospital. The applicant underwent surgery. The applicant remained in Royal Darwin Hospital until 31 March 1999 and was then transferred to the Darwin Private Hospital where she remained until 9 April 1999 before being discharged.

[2] The applicant was, at all material times, a resident of the Northern Territory for the purposes of the Motor Accidents (Compensation) Act (“the Act”). The vehicle driven by the applicant at the time of the accident was registered in the Northern Territory. On 26 March 1999 the applicant made an application for benefits under the Act. Her application was accepted by the respondent and payments commenced on 28 April 1999.

[3] In the current proceedings, pursuant to s 29 of the Act, the applicant seeks to challenge a determination of the designated person of 3 May 2005 affirming the decision of the respondent Board that the applicant ceased to be entitled to benefits provided for under s 13 of the Act. The applicant has referred the matter to this Tribunal for determination by way of a hearing de novo.

[4] The applicant asserts that her capacity to earn income from personal exertion has been reduced as a result of the injuries sustained on 24 March 1999. The applicant seeks compensation for loss of earning capacity under s 13 of the Act from either 16 August 2004 (the date of incapacity) or, alternatively, the 29 November 2004 (the date of application), to the present date.

[5] Sub-sections 13(1) and 13(2) of the Act relevantly provide:

(1) A person who suffers an injury in or as a result of an accident that occurred in the Territory or in or from a Territory motor vehicle –

(a) who was, at the time of the accident, a resident of the Territory; and

(b) whose capacity to earn income from personal exertion (either physical or mental) is, in the opinion of the Board, reduced as a result of the injury,

shall be paid such compensation for that loss of earning capacity as is provided in this section.

(2) Subject to subsections (3), (4) and (5) and section 14, the amount of compensation payable to a person referred to in subsection (1) is to be calculated in accordance with the following:

(a) the maximum amount payable per week is the amount determined by the Board, for each 6 month period commencing on 1 January or 1 July, to be 85% of the average weekly earnings for all employees' total employment earnings in the Territory based on what, in the opinion of the Board, are the best statistics available to it before 1 January or 1 July (as the case may be), less a notional deduction for income tax;

Work history

[6] The applicant was born on 31 March 1971 and is presently 36 years old. At the time of the hearing the applicant and her husband had two children and the applicant was pregnant with their third. The applicant moved to the Northern Territory in 1995. At the time of the accident the applicant was working as a control officer for Northern Territory Security. The applicant had held that position for approximately two years prior to the accident, initially on a casual basis and later as a permanent full-time employee. Due to the severity of the applicant’s injuries sustained in the motor vehicle accident on 24 March 1999, the applicant was unable to work for some months thereafter.

[7] In November 1999 the applicant returned to work for Chubb Security who had taken over from Northern Territory Security in the intervening period of absence. Upon her return, the applicant underwent a graduated reintroduction working on a part-time basis. By August 2000, the applicant was working four days a week for seven and a half hours per day until she left on maternity leave. The applicant returned to work for Chubb Security some time after the birth on a full-time basis and continued working until November 2001 when she was made redundant. The applicant gave birth to her second child on 7 December 2001.

[8] The applicant did not work during 2002. In April 2003 the applicant began casual employment with the Northern Territory Government on a temporary contract for approximately three to four hours per day. As this contract began to approach its climax in May 2003, the applicant began casual employment with MSC Guards & Patrol on a full-time basis. The applicant remained in this employment until August 2004 when she ceased to work.

Medical evidence

[9] Prior to the accident, the applicant had no ongoing medical issues. The applicant regularly played sport, cycled and was generally physically active and healthy. Following release from hospital, the applicant’s recovery and ongoing medical treatment was predominantly overseen by Dr Douglas Duthie. Dr Duthie gave evidence that during the time following the accident when he was the primary medical care provider, from April 1999 to December 2004, the applicant constantly complained of pain arising from injuries sustained and that at no time during the period would he be able to say that the applicant was pain free.

[10] As a consequence of the accident the applicant sustained significant multiple injuries including fractures of the right radius and ulna, five fractures of the pelvis, a fractured sacrum with nerve damage to the right leg, a fractured right clavicle, and a significant haematoma extending from her right buttock to her right knee.

[11] The Tribunal heard evidence from the following witnesses in support of the applicant’s case:

(a) the applicant herself;

(b) Pam Garton, an occupational therapist, who assessed the applicant and provided a pain management programme in early 2004;

(c) Karen Schneider, a physiotherapist, who treated the applicant over a number of years including 2004 and 2005;

(d) Dr Howard Flavell, a rehabilitation specialist, who assessed and assisted Dr Duthie treat the applicant in 2005 to 2007;

(e) Dr Douglas Duthie, a general medical practitioner, who treated the applicant prior to the accident in 1999 through to December 2004;

(f) Dr Tracy Johns, a general medical practitioner, who treated the applicant from early 2005 to late 2005;

(g) Dr Kim Manias, a general medical practitioner, who treated the applicant from 2006 to the present time;

(h) The applicant’s husband Douglas Burns.

[12] The respondent tendered medical reports from Dr David Elder who last saw the applicant on 6 December 2000 and Dr Geoffrey Graham who last saw the applicant on 11 December 2002.

[13] It is clear on the evidence that the applicant suffered serious and long term injuries to her pelvis. The applicant has considerable deformity in the ischial and pubic bones and there is diastasis in the right sacroiliac joint. In November 2002 the applicant demonstrated impaired pelvic control, sciatic nerve irritation and sacroiliac joint damage and instability. Whilst the level of pain varies from time to time she has continuing periodic upper back pain, lower back pain – bilateral lumbar, pelvic pain and discomfort, leg cramps, occasional right arm pain. She has pain in her back into her hips, down her legs into the thoracic spine and pelvic instability. The applicant’s injuries, particularly the nerve pain and cramps, have caused frequent interruptions to her sleep. This has led to exhaustion such that on one occasion she dozed in the car whilst driving with her children.

[14] Despite her injuries the applicant was keen to return to work. Her recovery since the accident has not been straight forward or consistent. She made a number of returns to work. Since the accident she has had three pregnancies which have led to complications given the nature of the injury to her pelvis. She has also had two further operations namely an operation on her buttock to relieve the haematoma and an operation to remove metal plates from her broken right forearm, which had been internally fixed with plates.

[15] The applicant suffers and has suffered from chronic pain syndrome as a result of her injuries. Chronic pain is long term pain. The applicant has suffered pain from the date of the accident to the present time. Long term pain or chronic pain leads to psychological consequences. One such consequence is that a sufferer may lose motivation from time to time. The applicant suffered from psychological effects of chronic pain. Any lack of motivation she demonstrated in 2004 was as a result of chronic pain consequent upon her injuries sustained in the car accident. Chronic pain was described by witnesses as complex and made up of physical, psychological and social components. Dr Duthie gave evidence which I accept that chronic pain is very different to acute pain. He said most people could manage acute pain with some help. On the other hand chronic pain ends up being a complexity of physical, psychological, social and personal factors. He described it as “a very complex and difficult issue.” He said things like ordinary painkillers do not tend to work very well with chronic pain. He said “A term often used is the bio–psycho–social model which means just that, that it has to encompass the entire life and personal and social goings on of the person.”

[16] The applicant has a good employment history and a strong work ethic and has made concerted efforts towards her rehabilitation. Not even the respondent suggests that the applicant is a malingerer. No expert witness treating or examining the applicant suggested that she exaggerated her injuries or gave an exaggerated history or that she was anything other than a patient with serious injuries. I accept the applicant and her husband as honest witnesses of truth. I reject the respondent’s submission that the applicant is fit for work and exaggerates her disabilities.

[17] The applicant continues to experience pain in her upper back, lower back and pelvis. She is uncomfortable in any sustained posture. She is uncomfortable in sitting, standing and driving. She finds it very difficult to find a pain free position. In giving evidence she constantly changed her posture in the witness box because of discomfort.

[18] I note that in 2004 the respondent was provided with repeated recommendations that the applicant should participate in a return to work programme and that the respondent declined to fund a gym and weight loss programme in accordance with the recommendations of a rehabilitation expert.

Period of incapacity

[19] The applicant seeks compensation payments from alternative dates, either the date of incapacity or the date of application. In calculating the compensation payable to the applicant in accordance with the formula set out in sub-section 13(3) of the Act, it is necessary to consider the applicants’ capacity to work during the relevant period. The applicant voluntarily ceased work on 15 August 2004, stating that the chronic pain and associated difficulties became too much to cope with. I accept this evidence. Her incapacity commenced on 16 August 2004.

[20] In September 2004, the applicants’ general practitioner Dr Douglas Duthie, noted in correspondence the overall decline in the applicants’ health since the previous consultation. Dr Duthie provided medical certificates for the period from 29 November 2004 to 31 October 2005 stating that the applicant was wholly incapacitated from work.

[21] The applicant became a patient of Dr Tracy Johns in November 2005 and was certified as being capable of working for six hours a week (two hours, three days a week) between 29 November 2005 and 21 September 2006. In October 2006, the applicant undertook a work placement of 6 hours per week for a ten week period at a local conveyancing firm. This placement was organised by Commonwealth Rehabilitative Services.

[22] Early in 2007, the applicant saw Dr Kim Manias on two occasions. At the second consultation on 27 February Dr Manias provided the applicant with a medical certificate that indicated that the applicant was now fit to work for a maximum of sixteen hours per week (four hours, four days per week).

[23] The formula in s 13(3) requires a reduction in compensation to be made in accordance with the working capacity of the eligible person. As Brennan J said in Arnott Snack Products Pty Ltd v Yacob (1985) 155 CLR 171 at 183, in determining a persons capacity for work,

“Regard must be had not only to the employment in which the injured worker was employed before his injury but also to other fields of employment in which he was accustomed to work or in which he might have been expected to seek and find work in the course of his working life.”

It is not sufficient for the Tribunal, in assessing the applicant’s capacity, to consider her ability to perform duties associated with the security work in which she was employed only.

[24] Despite the wording of s 13(3), and irrespective of the nature of the work contemplated, I find it difficult to consider a person certified as capable of working for a maximum of six hours per week other than as wholly incapacitated. In Moran Health Care Services v Woods (1997) 14 NSWCCR 499 Mason P stated that in the process of determining whether a person is wholly incapacitated, “there will be a number of cases where, despite evidence or concession that the worker might be able to perform some tasks in some circumstances, such a finding is sustainable in law”. This recognises the importance of not only considering the capacity of the person to work in light of their injuries and ongoing difficulties, but to consider these factors in the reality of the labour market.

[25] In my judgement, during the period Dr Johns certified the applicant as capable of working 6 hours per week, the applicant was nonetheless wholly incapacitated for work. I reach this conclusion particularly having regard to her chronic pain. As a direct consequence of the motor vehicle accident of 24 March 1999, the applicant suffered injuries and ongoing chronic pain of such a nature as to render her wholly incapable for work from 16 August 2004 to 26 February 2007.

[26] I find the following degrees of capacity in respect of the applicant;

(i) total incapacity from 16 August 2004 to 26 February 2007;

(ii) capacity for 16 hours per week from 27 February 2007 to present.

Deductions to contributions

[27] The respondent Board submits that deductions should be made from any award of compensation to take account of the parenting allowance received by the family of the applicant and Austudy payments received by the applicants’ husband during the relevant period. The Act is silent as to whether such deductions should be made.

[28] It is well established that a purposive approach should be adopted in interpreting remedial legislation, giving rise to a liberal construction, see eg. Bull v Attorney-General for New South Wales (1913) 17 CLR 370 at 384; Holmes v Permanent Trustee Co. of New South Wales Ltd (1932) 47 CLR 113 at 119. In the absence of any express provision in the legislation requiring such a deduction in compensation, it would be contrary to the purposive approach to imply such a requirement.


[29] The medical and other evidence adduced by the applicant wholly supports the applicant’s continuing inability to work and entitlement to section 13 benefits.

[30] The decision of the designated person of 18 February 2005 is set aside. Order that benefits in accordance with s 13(3) of the Act be paid to the applicant from 16 August 2004, and continuing until such time as the applicant’s entitlement ceases. I shall hear the parties as to the calculation of the quantum of those benefits should that be necessary.

[31] The respondent is to pay the applicant’s costs of the application.