Inco Ships Pty Ltd v Hardman

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FEDERAL COURT OF AUSTRALIA

Inco Ships Pty Ltd v Finlay Murdoch Hardman [2007] FCA 1138

SEAFARERS COMPENSATION – Appeal from Administrative Appeals Tribunal – whether employee entitled to compensation for injury under Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the Seafarers Act) – whether Certificate of Medical Fitness invalid when procured by misleading information – whether invalid Certificate of Medical Fitness means employee not a “seafarer” under s 3 of the Seafarers Act – whether content of notice given under s 63 of the Seafarers Act limits claim for compensation – whether aggravation of pre-existing degenerative condition – whether aggravation caused incapacity for work – whether incapacity materially contributed to by employment – whether employee made wilful and false representation about pre-existing disease – whether injury cause by serious and wilful misconduct

WORKERS COMPENSATION – see above

ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – whether issues can be raised for the first time on appeal – whether Tribunal erred in not addressing certain questions not raised at hearing

Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 3, 10(7), 26(1), 26(3), 63
Administrative Appeals Tribunal Act 1975 (Cth) s 44(7)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Navigation Act 1912 (Cth)
Migration Act 1958 (Cth)
Workmen’s Compensation Act 1897 (UK)
Workers Compensation Act 1971 (SA)
WorkCover Queensland Act 1996 (Qld)

Comcare v Fiedler (2001) 115 FCR 328 considered
Coulton v Holcombe (1986) 162 CLR 1 cited
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 cited
Australian Meat Holdings Pty Ltd v Kazi [2004] 2 Qd R 458 considered
WorkCover Corporation (San Remo Macaroni Co Pty Ltd) v Da Ping (1994) 175 LSJS 469 cited
Yango Pastoral Co Pty Limited v First Chicago Australia Limited (1978) 139 CLR 410 applied
Visscher v Munro (2005) 147 FCR 538 cited
Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312 cited
Lees v Comcare (1999) 56 ALD 84 cited
Zickar v MGH Plastic Industries Pty Limited (1995-1996) 187 CLR 310 cited
Kennedy Cleaning Services Pty Limited v Petkoska (2000) 200 CLR 286 cited
Commonwealth v Beattie (1981) 53 FLR 191 cited
Federal Broom Company Pty Limited v Semlitch (1964) 110 CLR 626 cited
ReSchofield and Comcare (1995) 38 ALD 124 cited
Johnson v Marshall Sons & Co Ltd [1906] AC 409 cited
Ismakovich v Broken Hill Pty Company Limited (1982) 49(2) SAIR 209 applied
Comcare v Calipari [2001] FCA 1534 cited
Richards v Faulls Pty Ltd [1971] WAR 129 cited
Hills v Brambles Holdings Ltd (1987) 4 ANZ Ins Cas 60-785 discussed

INCO SHIPS PTY LTD v FINLAY MURDOCH HARDMAN

NSD 1242 OF 2006

MANSFIELD J
3 AUGUST 2007
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

NSD 1242 OF 2006
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL CONSTITUTED BY DEPUTY PRESIDENT D G JARVIS

BETWEEN:

INCO SHIPS PTY LTD
Applicant

AND:

FINLAY MURDOCH HARDMAN
Respondent

JUDGE:

MANSFIELD J

DATE OF ORDER:

3 AUGUST 2007

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application be…

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Details
Case
[2007] FCA 1138
Decision Date

CaseChat Overview and Summary

In the case of Inco Ships Pty Ltd v Hardman, the Federal Circuit Court was tasked with reviewing a decision made by the Seafarers Safety, Rehabilitation and Compensation Authority. The applicant, Inco Ships Pty Ltd, sought to challenge the Tribunal’s determination that the applicant is liable to pay compensation to the respondent under the Seafarers Rehabilitation and Compensation Act 1992. The respondent, who had a history of knee injuries, claimed to have suffered an aggravation of a pre-existing condition in his left knee while working for the applicant, which resulted in incapacity for work and medical expenses. The applicant argued that the respondent’s injury arose from serious and wilful misconduct on his part and that the Tribunal had made errors in its factual findings.

The central legal issues before the court were whether the Tribunal correctly found that the respondent's left knee injury was aggravated during his employment with the applicant and whether the Tribunal's findings regarding the compensability of the injury and the absence of serious and wilful misconduct were supported by the evidence. The court had to determine whether the Tribunal's findings were open to it, given the evidence presented, and whether there were any errors in law that warranted interference with the Tribunal's decision.

The court found that the Tribunal's findings were supported by the evidence and that there were no errors in law that required the court to interfere with the decision. The Tribunal's findings that the respondent did not have any symptoms in his left knee until his employment with the applicant, that the torn meniscus identified during the arthroscopy probably pre-existed his employment, and that his employment with the applicant materially contributed to his incapacity for work were upheld. The court also found that there was no basis for the respondent to have been aware that his duties would cause the injury, and there was no causative link between the alleged misconduct and the compensable injury. The court concluded that the Tribunal's decision was correct and dismissed the application.

In light of the dismissal of the application, the court ordered that the applicant pay the respondent’s costs of the application.

Orders

Orders of the court

1. The application be dismissed.

2. The applicant pay to the respondent his costs of the application.

Background

Background to the litigation

The Tribunal determined that the applicant is liable to pay compensation to the respondent pursuant to the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the Seafarers Act) in respect of an injury to the respondent’s left knee in about June 2004.BACKGROUND The respondent was born in 1955. He has worked in the shipping industry since 1989, mostly as a steward. Between 2001 and 2004, he worked for P & O Ports Ltd as a stevedore, which involved loading and unloading ships. That work required the respondent to engage in some heavy lifting and frequent kneeling. The respondent has some history of medical problems. In 1985, he fractured his left tibia and dislocated his left ankle. He recovered from this over a period of four months. He told the Tribunal that it has not caused him problems since. In 1990, he developed back pain while working as a steward. He told the Tribunal those symptoms had persisted, and he gets sciatic pain down his left side. In May 2002 he also had symptoms in his left knee when driving a truck with a heavy clutch, but the symptoms quickly resolved and (he said) he had no subsequent problems with his left knee prior to his employment with the applicant. In 2003, the respondent experienced pain in his right knee, which he attributed to his work as a stevedore. He was treated first by a physiotherapist and then by an orthopaedic surgeon, who performed an arthroscopy. The respondent returned to work two months after that operation, in a co-ordinating role rather than returning to physical work. The respondent undertook a trainee integrated rating (TIR) course in 2004. He then commenced employment with the applicant, a shipping company that operates the ship vessel Iron Chieftain between Whyalla and Port Kembla. He worked for a continuous period from 17 May 2004 to 20 July 2004. During that time, he worked as a steward during the morning, essentially involving cleaning duties, and on TIR duties in the afternoon for about two hours. The TIR duties involved various maintenance work on the ship, requiring him to work on each of the ship’s six decks, using stairs or ladders to move between them. He did that mix of duties for about two weeks without difficulty. The respondent said that he developed pain in his right knee, which he controlled by taking anti-inflammatory medication (which he had taken with him to the ship) and by favouring that knee. He then began to experience pain in his left knee. He said it became progressively worse and made kneeling especially difficult. He spoke to the bosun about this and as a result stopped doing tasks that involved kneeling but otherwise continued in his duties. On 7 July 2004, he completed an employee notification form, in which he described his injury as: “Soreness stiffness and swelling in left knee. Has become progressively worse over last few weeks. Will be seeking medical advice during my leave.” Subsequently, in response to specific questioning by a doctor, he recalled one incident when he missed his step and struck his left knee on some machinery; his leg was bruised but he did not think much of the incident at the time.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MANSFIELD J
Finally, s 63 also apparently prescribes circumstances which must be met before compensation is payable under the Seafarers Act. It relates to the making of a claim for compensation. It relevantly provides:(1)Compensation is not payable to a person under this Act unless a claim for compensation is made by or on behalf of the person under this section.(2) A claim must be made by giving the employer:(a)a written claim, in accordance with a form approved by the Authority for the purposes of this paragraph; and(b)… a certificate by a legally qualified medical practitioner in accordance with the form approved by the Authority for the purposes of this paragraph; and(c)a notice setting out:(i)the name and address of any other employer who has been given, or to whom it is intended to give, a claim under paragraph (2)(a) in relation to the injury; and(ii)the name and address of any other employer whose employment is believed to have materially contributed to the injury.(3)If a written claim … is given to a person under paragraph (2)(a) and the claim is not accompanied by a certificate of the kind referred to in paragraph (2)(b), the claim is taken not to have been made until such a certificate is given to that employer.(4)Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient.The Authority referred to is the Seafarers Safety, Rehabilitation and Compensation Authority established under s 103 of the Seafarers Act, with the functions referred to in s 104.THE TRIBUNAL DECISION The direct attack on the respondent’s credibility did not succeed. The Tribunal made certain findings based upon his evidence. In particular, it accepted that the respondent did not have any symptoms in his left knee after the episode in 2002 whilst driving a truck until the pain in his left knee which developed during his employment on the Iron Chieftain. It also found that the torn meniscus identified during the arthroscopy in August 2004 probably pre-existed his employment with the applicant and was not the cause of the left knee symptoms he developed in his employment with the applicant. Then it concluded that, during the respondent’s employment with the applicant, he suffered an aggravation of a pre-existing condition of his left knee which resulted in an incapacity for work. It also found that the employment on the Iron Chieftain contributed in a material way to that incapacity, and that this resulted in incapacity for work and the incurring of medical expenses. As to the claim that the respondent’s injury arose from serious and wilful misconduct on his own part, and so was not compensable, the claim foundered on the factual findings of the Tribunal. It said there was no basis for the respondent to have been aware that his duties during his employment on the Iron Chieftain would cause the injury to, or disability in, his left knee, which it had found was the compensable injury producing incapacity for work. And it also found that there was no causative link between the conduct which the applicant alleged amounted to serious and wilful misconduct and the compensable injury. In relation to that finding, the Tribunal observed that there was no evidence that Dr Macris would not have issued the medical form if the respondent had fully disclosed his medical history, or that the applicant would not have employed him if it had known in particular of the medical history concerning his right knee condition. And it specifically found that, even if the matters relied on by the applicant amounted to serious and wilful misconduct, that conduct did not cause the symptoms in the left knee which led to the respondent’s incapacity for work. The Tribunal also found that both captains of the Iron Chieftain were, or should have been, aware that the respondent was having knee problems at work but that they nevertheless, in effect, expected the respondent to continue with his duties.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

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