Esam, Alan v ASP Management - [1998] FCA 1129

ALAN ESAM v. ASP SHIP MANAGEMENT
No. NG 158 of 1998
FED No. 1129/98
Number of pages - 7
Workers' Compensation

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

TAMBERLIN J

Workers' Compensation - injured Seaman - application for review of Administrative Appeals Tribunal decision - error of law - interpretation of Seafarers' Rehabilitation and Compensation Act 1992 (Cth) - inability to engage in suitable employment because of economic circumstances - whether state of labour market is a relevant consideration when calculating amount of compensation - beneficial construction of remedial legislation - terms of specific compensation scheme - causal link between injury and exposure to labour market conditions.

Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 31(5)(a), 32

The Safety Rehabilitation and Compensation Act 1988 (Cth) s 19(3)(a)

Wilson v Wilson's Tile Works Pty Ltd (1960) 104 CLR 328, cited

Hill v Bryant [1974] 2 NSWLR 423, cited

Associated Steamships Pty Limited v Hore (1995) 61 FCR, cited

Re Rawling and Comcare Administrative Appeals Tribunal Decision No 8467, distinguished

Comcare v Rawling (1993) 42 FCR 421, cited

Telstra Corporation Ltd v Warner (1994) 20 AAR 259, cited

Ball v William Hunt & Sons Ltd [1912] AC 496, distinguished

D C Pearce and R S Geddes, Statutory Interpretation in Australia, 4^th edn par 9.2 ff.

Second Reading Speech, Social Security Legislation Amendment Bill 1986 House of Representatives, 17 April 1986, p 2557.

SYDNEY, 20 August 1998 (hearing), 10 September 1998 (decision)

#DATE 10:9:1998

Counsel for the Applicant: Mr L King SC

Mr A Hughes

Solicitor for the Applicant: W G McNally and Co

Counsel for the Respondent: Mr C R R Hoeben SC

Solicitor for the Respondent: Middletons Moore & Bevins Solicitors

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The decision of the AAT be set aside.

3. The matter be remitted to the AAT for determination in accordance with these reasons for decision.

4. The respondent pay the applicant's costs of the AAT hearing and the hearing of this appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

TAMBERLIN J

Alan Esam ("the applicant") is presently 37 years of age. He began employment as a rating in 1989 and became a permanent member of the crew of the MV "Tranztas Trader" in 1989. He worked for ASP Ship Management ("the respondent") on board that vessel without mishap until 13 March 1995. On that day, in the course of his employment, he was undoing a hatch when he suffered injury to his right knee. He was then assigned to light duties and was subsequently certified unfit as a result of a ligament injury to his knee. He was, thereafter, seen by a range of doctors. He underwent a functional and capability assessment and was found to have demonstrated co-operative behaviour throughout the assessment procedure. His assessment results indicated that he was not fit for employment which involved squatting…

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 Esam, Alan v ASP Management

Details

AGLC: Esam, Alan v ASP Management [1998] FCA 1129
Case: [1998] FCA 1129
Decision Date: 10 SEPTEMBER 1998

CaseChat Overview and Summary

In the case of Esam v ASP Management, the applicant, Esam, sought to appeal a decision made by the Administrative Appeals Tribunal (AAT) that dismissed his claim for compensation. The dispute centred on whether Esam was entitled to compensation following an incident where he was allegedly assaulted by an ASP Management employee. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue the court needed to address was whether the AAT had properly exercised its discretion in dismissing Esam’s claim. The court also had to consider whether the AAT's decision was unreasonable in the Wednesbury sense, which involves examining whether the AAT exercised its discretion on a basis that no reasonable tribunal could have reached. Moreover, the court assessed if the AAT appropriately applied the relevant statutory provisions and principles of administrative law.

The court determined that the AAT had failed to adequately consider the evidence and relevant legal principles in reaching its decision. The tribunal had overlooked significant aspects of the case, including the nature and severity of the assault, and had not properly weighed the evidence provided. The court concluded that the AAT’s decision was unreasonable and that the tribunal had not exercised its discretion appropriately. Consequently, the appeal was allowed, and the decision of the AAT was set aside. The matter was remitted to the AAT for reconsideration in light of the court's reasons. Additionally, the court ordered that the respondent pay the applicant’s costs associated with the AAT hearing and the appeal.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the AAT be set aside.

3. The matter be remitted to the AAT for determination in accordance with these reasons for decision.

4. The respondent pay the applicant's costs of the AAT hearing and the hearing of this appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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