Gibson and ASP Ship Management Pty Ltd - [2004] AATA 947

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 947
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2003/741
GENERAL ADMINISTRATIVE DIVISION

Re: CRAIG ASHLEY GIBSON
Applicant

And: ASP SHIP MANAGEMENT PTY LTD
Respondent

DECISION
Tribunal:       Miss E.A. Shanahan, Member
Date:             13 September 2004
Place:            Melbourne
Decision:The Tribunal varies the decision under review to the extent that it finds the applicant's injury did not occur in the course of his employment with the respondent.
The Tribunal decides the respondent is not liable to pay compensation to the applicant for periods of incapacity, repatriation, and medical and like expenses.

(sgd) E.A. Shanahan
Member

SEAFARERS COMPENSATION – injury arising from employment – ordinary recess – serious and wilful misconduct – unreasonably submitting to an abnormal risk of injury
Seafarers Rehabilitation and Compensation Act 1992 ss 9(1) (2)(a), (2)(b), 12, 26(1), (2), (3)
Navigation Act 1912 (as amended)
Casarotto v Australian Postal Commission (1989) 17 ALD 321
Gregory v Comcare Australia (1997) 72 FCR 196
Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473
Henderson v Commissioner of Railways (Western Australia) (1937) 58 CLR 281
Jones v Dunkel (1959) 101 CLR 298
Landers v Dawson (1964) 110 CLR 644
McDonald v Director-General of Social Security (1984) 1 FCR 354
Re Campbell and Australian Postal Commission (1988) 15 ALD 705
Re Crook and Comcare (2001) 64 ALD 781
Re Elvin and Comcare (1998) 51 ALD 706
Re Maynard and Comcare (2000) 63 ALD 315
Re Moore and Comcare (AAT 11427, 24 October 1996)
Re Mulligan and Commission for the Safety, Rehabilitation and Compensation of
Commonwealth Employees (1995) 36 ALD 699
Re Richardson and Comcare (1997) 46 ALD 440
Re Taylor and ASP Shipping Management [2000] AATA 254
Schmid v Comcare (2003) 77 ALD 782
Taylor v Stapley (1954) 90 CLR 1
The Commonwealth v Oliver (1962) 107 CLR 35
Thurn v Ireland (1997) 14 NSWCCR 737
Whittingham v The Commissioner of Railways (W.A.) (1931) 46 CLR 22
REASONS FOR DECISION
13 September 2004 Miss E.A. Shanahan, Member
1. This is an application by Craig Ashley Gibson (the applicant) for review of a decision by a delegate of ASP Ship Management Pty Ltd (the respondent) dated 26 June 2003. The respondent denied liability, under the Seafarers Rehabilitation and Compensation Act 1992 (the Act), due to serious and wilful misconduct and, in the alternative, due to the applicant voluntarily and unreasonably submitting to an abnormal risk of injury. On 27 March 2003 the respondent made a determination that it was not liable to pay compensation to the applicant. On 25 June 2003, at the request of the respondent, an officer of Comcare Australia provided a report to assist in the respondent's reconsideration of the determination made on 27 March 2003. On 26 June 2003 the respondent affirmed the determination of 27 March 2003 and also accepted and adopted the Findings and Recommendation made by Comcare Australia on 25 June 2003. The Tribunal notes the reviewable decision had stated that the applicant had dived off Station Pier at approximately 2:00…

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.

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Details

Case: [2004] AATA 947
Decision Date: 13 September 2004

CaseChat Overview and Summary

Craig Ashley Gibson applied for review of a decision by ASP Ship Management Pty Ltd, which had denied compensation for his injury, finding it occurred due to serious and wilful misconduct. The Tribunal was required to determine whether the injury occurred in the course of employment, whether the applicant's conduct amounted to serious and wilful misconduct, and whether he had unreasonably submitted himself to an abnormal risk of injury. The Tribunal concluded that the applicant's injury did not occur in the course of his employment. The Tribunal found that the applicant's injury occurred outside of his employment period, as he was off duty from 2230 hours on 17 June 2001 until 0800 hours on 18 June 2001. The Tribunal relied on precedents such as Hatzimanolis v A.N.I. Corporation Limited (1992) 173 CLR 473, which established that the course of employment is not identical with the period of employment of a worker or with the work which that person performs. The Tribunal decided that the respondent was not liable to pay compensation to the applicant for periods of incapacity, repatriation, and medical and like expenses.

Orders