Davis and Total Marine Services Pty Ltd

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1314

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No   W 200500375
  )              W 200600387

GENERAL ADMINISTRATIVE  DIVISION		)
Re		BRIAN LESLIE DAVIS

Applicant

And TOTAL MARINE SERVICES PTY LTD

Respondent

DECISION

Tribunal Deputy President S D Hotop
Dr D Weerasooriya, Member

Date10 May 2007

PlacePerth

Decision

Application No W 200500375

The Tribunal affirms the deemed reviewable decision of the respondent.

Application No W 200600387

The Tribunal sets aside the deemed reviewable decision of the respondent and, in substitution therefor, decides that as at, and from,
27 September 2006 the respondent has been liable, and is presently liable, pursuant to s 31(5)(a) of the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (“the Act”), to pay compensation to the applicant in an amount per week determined on the basis that the amount per week that the applicant is “able to earn… in suitable employment” is nil.

Either party may make an application in relation to the costs of the proceedings in Application No W 200600387 within 14 days of the date of this decision. If no such application is made, the Tribunal orders, pursuant to s 92 of the Act, that the respondent pay the applicant’s costs of the proceedings in Application No W 200600387.

.............(Sgd. S D Hotop)..................

Deputy President

6.      For the reasons which follow, the Tribunal has determined that:

· the respondent is not liable under the Act to pay compensation to the applicant for permanent impairment and non-economic loss resulting from his right elbow injury;

· for the purpose of determining the amount of compensation payable to the applicant by way of weekly incapacity payments in accordance with the Act, the amount per week that the applicant has been able to earn in suitable employment from 27 September 2006 is nil, and, accordingly, the amount of such compensation payable to him on and from that date should not have been reduced.

The Evidence

7.      The evidence before the Tribunal comprised:

·     

the “T Documents” lodged by the respondent, in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth), in respect of Application No W 200500375 (T1-T52, pp 1-102) and Application No

W 200600387 (T1-T24, pp 1-77);

·     documents tendered in evidence by the applicant (Exhibits A1-A7) and by the respondent (Exhibits R1-R2); and

·     the oral evidence of the applicant, Dr P Hardcastle, Dr S Clarke, and Mr D Brandis.

The Factual Background

8.      The relevant factual background, which appears from the T Documents, is as follows.

9.      The applicant completed an Incident Report, dated 11 January 2004, relating to a personal injury suffered by him on that date in the course of his employment on board the vessel Total Voyager. In that Incident Report, the applicant stated that he sustained the relevant injury, which he described as a “bruised right elbow”, when he struck his right elbow on a power pack frame “whilst unlashing drums secured to spooling gear power pack”. (W…