Cook and ASP Ship Management - [2003] AATA 372

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2003] AATA 372
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V95/977 V98/354

GENERAL ADMINISTRATIVE DIVISION ) V00/1320

Re GEORGE COOK

Applicant

And

ASP SHIP MANAGEMENT

Respondent

DECISION

Tribunal Mrs Joan Dwyer, Senior Member
Mr G.D. Friedman, Member
Associate Professor J.H. Maynard, Member
Date24 April 2003
PlaceMelbourne
Decision1. In matter V1995/977, the Tribunal sets aside the decision under review and in substitution varies the determination of 19 May 1995 to provide that Mr Cook is entitled to compensation under the Seafarers’ Rehabilitation and Compensation Act 1992 (“the Act”) as follows:
(i)under s 39 of the Act in respect of a 20% impairment of the left leg, and
(ii)under s 41 of the Act, for non-economic loss calculated under s 41(2) of the Act on the basis that the degree of permanent impairment is 20% and the degree of non-economic loss is to be calculated in accordance with Tables 5 and 6 of the Guide to the Assessment of the Degree of Permanent Impairment using the following ratings:

Pain

4

Suffering

4

Mobility

3

Social Relationships

3

Recreation and Leisure Activities

4

2.In matter V1998/354, the Tribunal sets aside the decision under review and in substitution for the deemed refusal of the claim, decides that Mr Cook is entitled to compensation under s 28 of the Act in the sum of $6490.00 for provision of hearing aids.
3.In matter V2000/1320, the Tribunal sets aside the decision under review and in substitution varies the decision of 13 June 2000 to provide that Mr Cook is entitled to the sum of $864.00 under s 43 of the Act for provision of lawnmowing services.
4.The Tribunal reserves liberty to the parties to apply to the Tribunal if they cannot agree as to the issue of costs.
(Sgd) Joan Dwyer
Senior Member

SEAFARERS’ COMPENSATION – whether permanent impairment of left leg results from compensable cellulitis condition – assessment of permanent impairment of left leg – compensation for non-economic loss in respect of permanent impairment of left leg
hearing loss and tinnitus – whether compensation payable for permanent impairment in respect of hearing loss due to noise exposure where exposure and hearing loss occurred during period of operation of Seamen’s Compensation Act 1911, but hearing loss did not disable employee from earning full wages – concession that respondent obliged to pay the cost of hearing aids
– whether entitlement to other compensation arising out of the cellulitis claim – decisions set aside and primary determinations varied
Seamen’s Compensation Act 1911 s 5A(1)
Seafarers’ Rehabilitation and Compensation Act 1992 ss 11, 26(1), 28, 39, 41, 41(2),43
Seafarers’ Rehabilitation Compensation (Transitional Provisions and Consequential Amendments) Act 1992 s 7(1)
Whittaker v Comcare (1998) 28 AAR 55
Re Richards and Howard Smith Industries (AAT 12573, 2 February 1998) [1998] AATA 40
Howard Smith Industries Pty Ltd v Richards (1999) FCR 268; (1999) 30 AAR 213
Commissioner for Railways v Bain (1965) 111 CLR 246
Accident Compensation Commissioner v Fletcher

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cook and ASP Ship Management

Details

AGLC: Cook and ASP Ship Management [2003] AATA 372
Case: [2003] AATA 372
Decision Date: 24 April 2003

CaseChat Overview and Summary

This case involves an appeal by George Cook against decisions made by ASP Ship Management under the Seafarers’ Rehabilitation and Compensation Act 1992. The Tribunal set aside the original decisions and varied the determinations in favour of Mr Cook. The first issue was whether Mr Cook was entitled to compensation for permanent impairment of his left leg resulting from a compensable cellulitis condition. The Tribunal found that Mr Cook had a 20% permanent impairment of his left lower limb which resulted from his compensable cellulitis condition. The second issue was whether Mr Cook was entitled to compensation for the cost of hearing aids. The Tribunal found that Mr Cook was entitled to compensation for the cost of his hearing aids in the sum of $6490. The final issue was whether Mr Cook was entitled to compensation for other expenses arising out of the cellulitis claim. The Tribunal found that Mr Cook was not entitled to compensation for permanent impairment of other parts of his body or for expenses such as a wheelchair, crutches or hand controls for his motor car. However, Mr Cook was entitled to reimbursement of $864 for lawnmowing services. The Tribunal set aside the original decisions and varied the determinations in a manner favourable to Mr Cook. The Tribunal reserved liberty to the parties to apply if they could not agree on the issue of costs.

Orders