Davis and Total Marine Services Pty Ltd

Link copied
Case Copied 79 min read

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…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Davis and Total Marine Services Pty Ltd and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2007] AATA 1314
Decision Date

CaseChat Overview and Summary

Davis, a seafarer, brought claims against Total Marine Services Pty Ltd for compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth). The claims were heard by the Administrative Appeals Tribunal, which affirmed some aspects of the respondent’s decision and set aside others. Davis sustained an elbow injury in the course of employment, and Total Marine Services accepted liability for compensation related to this injury. However, Davis sought additional compensation for permanent impairment resulting from the injury, which Total Marine Services contested. The Tribunal had to determine whether Davis was entitled to compensation for permanent impairment and, if so, the appropriate amount. Additionally, the Tribunal assessed whether Davis was capable of earning an income in suitable employment, which would affect the level of incapacity payments.

The primary legal issue was the extent of Davis’s permanent impairment due to the elbow injury and whether this impairment warranted compensation. The Tribunal used the approved Guide's tables 9.1 and 9.4 to determine the degree of permanent impairment. Table 9.1 suggested no more than a 5% impairment, while Table 9.4 indicated less than a 10% impairment. Given that Davis did not experience difficulty with digital dexterity, the Tribunal concluded that compensation for permanent impairment was not payable. However, regarding incapacity payments, the Tribunal found that Davis was unable to earn in suitable employment. This finding led to the conclusion that Davis was entitled to compensation by way of incapacity payments, as per section 31(5)(a) of the Act.

The Tribunal affirmed the decision that no compensation for permanent impairment was payable, aligning with the calculations from the approved Guide. However, it set aside the decision regarding incapacity payments, determining that Davis was unable to earn in suitable employment. Consequently, the Tribunal ordered that Total Marine Services pay Davis incapacity payments from 27 September 2006, calculated based on the assumption that Davis was unable to earn any income in suitable employment. The Tribunal also ordered that if no application for costs was made within 14 days, Total Marine Services would be liable for Davis’s costs of the proceedings.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.