Leigh Lovering and Programmed Marine Pty Ltd

[2015] AATA 433

[2015] AATA  433

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2014/3362
Re	Leigh Lovering
APPLICANT
And	Programmed Marine Pty Ltd
RESPONDENT

DECISION

Tribunal	The Hon. Brian Tamberlin, QC, Deputy President
Date	19 June 2015
Place	Sydney

The Tribunal sets aside the decision under review and substitutes for it the decision that the Respondent is liable under s 26 of the Seafarers Rehabilitation and Compensation Act 1992 to compensate Mr Lovering for the injury that arose out of, or in the course of, his employment.

.........................[sgd]...............................................

The Hon. Brian Tamberlin, QC, Deputy President

CATCHWORDS

COMPENSATION - Seafarers Compensation - injury sustained whilst undergoing training when on leave - training not approved or paid for by employer - same training previously approved by employer - whether employee's injury were sustained 'arising out of, or in the course of, employment' - decision under review set aside

LEGISLATION

Seafarers Rehabilitation and Compensation Act 1992 ss 3, 26

CASES

Comcare v PVYW [2013] HCA 41

Kavanagh v Commonwealth [1960] HCA 25

REASONS FOR DECISION

The Hon. Brian Tamberlin, QC, Deputy President

19 June 2015

1. This is an application for a review of a decision made by the Respondent on 16 May 2014 disallowing the Applicant’s claim for compensation under the provisions of the Seafarers Rehabilitation and Compensation Act 1992 (the Act).

2. The Applicant claims that he is entitled to compensation payments under the Act, either on the basis that his injury was sustained arising out of his employment or, alternatively, on the basis that it was sustained in the course of his employment.  Under s 26 of the Act, if an employee suffers an injury that results in impairment, compensation is payable for the injury. By s 3 of the Act ‘injury’ is defined relevantly to mean an injury suffered by an employee being a physical injury arising out, or in the course of, the employee’s employment.

3. The parties have filed a Statement of Agreed Facts which assists in narrowing the questions of fact but does not completely resolve all issues of fact between the parties.

4. The Statement of Agreed Facts reads as follows:

   1.   Nature of application

   1.1 Application 2014/2262 concerns a reviewable decision dated 16 May 2014 which affirmed a determination dated 17 March 2014 that denied liability under s 26 of the Seafarers Rehabilitation and Compensation Act 1992 ('SRC Act') for a lower back injury ('the injury') the applicant claims to have suffered on 8 October 2013 while 'attending a HUET training course' in the Philippines.

   1.2  The preliminary issue for determination by the Tribunal is, assuming the applicant suffered the injury as claimed, whether the definition of 'injury' in s 3 of the SRC Act is satisfied. Relevantly, whether the injury was an injury 'arising out of, or in the course of, the employee's employment'.

   2.   Agreed facts

   2.1  In or about 2003 the applicant commenced employment with the respondent (or its predecessor) and he has worked in the capacity of Ship Master / Deck Officer / Chief Officer.

   2.2  On 28 September 2013 the applicant finished a swing on board the Skandi Atlantic having commenced on 18 September 2013.

   2.3  Between 18 September 2013 and 28 September 2013 the applicant was the Chief Officer aboard the Skandi Atlantic.

   2.4  On 29 September 2013 the applicant travelled home to Manila in the Philippines and had scheduled 'R&R' until 8 October 2013.

   2.5  While at home in the Philippines the applicant arranged, paid for and attended Helicopter Underwater Escape Training ('HUET') at IDESS Maritime Centre (Subic) Inc in Subic Bay Freeport Zone, Philippines which took place on 8 October 2013.

   2.6  The respondent did not require the applicant to attend this training on this date or at this location. There was no requirement for the applicant to have HUET certification while aboard the Skandi Atlantic.

   2.7  For the purpose of this hearing of the preliminary issue, it is assumed that the applicant suffered the injury on 8 October 2013 while undertaking the HUET as alleged.

   2.8  According to the applicant, the injury initially manifested as a 'twinge' in the back and he was able to complete the training in a restricted capacity, in pain. He was reportedly noticed to be limping at the completion of the training which later developed into more severe pain necessitating treatment in Manila.

   2.9  On 9 October 2013 (T34/156) the applicant attended Dr Esmereldo De Guzeman at Angeles City who diagnosed sciatica and neuritis.

   2.10      On 21 October 2013 the applicant left to return to Australia and arrived on 22 October 2013.

   2.11      On 23 October 2013 (T34/158) the applicant attended his GP, Dr Haynes, who issued a Workers' Compensation Medical Certificate diagnosing 'sciatic nerve R disc [illegible] L4 5'. It was noted the reported date of injury was 8 October 2013 and the stated cause referred to the HUET.

   2.12      On 23 October 2013 (T13) the applicant signed a Claim for Workers' Compensation under the SRC Act for the injury.

   2.13      On 17 March 2014 (T25) a determination was issued which denied liability under the SRC Act for the injury on the basis the injury did not arise out of or in the course of the applicant's employment.

   2.14      On 19 March 2014 (T26) the applicant, through his legal representatives, requested a reconsideration of the determination.

   2.15      On 16 May 2014 (T28) a reviewable decision was issued affirming the determination.

   FACTUAL BACKGROUND

5. The Applicant has been employed by the Respondent since 2003 in the capacity of a Ship Master/Deck Officer. He has twice completed training courses known as HUET (Helicopter Underwater Escape Training) courses in 2003 at the commencement of his employment with the Respondent and again in July 2008. The certifications resulting from these courses are for a period of four years so that the 2008 certification expired in about the end of June 2012. In February 2012 he suffered a knee injury which required surgery and he was off work for about 12 months. He came back to work in about April 2013 after receiving a medical clearance. He was then allocated a position as Second Officer on board a vessel which did not have helicopter facilities and therefore he did not need his HUET qualification whilst working this vessel. This vessel, the ‘Skandi Hawk’, was the first vessel on which he worked and then subsequently he joined the ‘Skandi Atlantic’ for a 10 day period of work (swing).

6. The Applicant said, and I accept, that he had a conversation with Ms Sophie Gibson and he says that she said to him “you have to get your HUET done” and he agreed to this and said that he would do it after his swing. He also says that later in September 2013 Ms Gibson again mentioned that he would have to have his HUET done.

7. The statements said to have been made by Ms Gibson are disputed. She says that she does not recall having made such statements and she says that even if she did it would have been on the basis of the Respondent arranging for him to do the course, and would not have been an arrangement whereby he was to arrange the course himself. Ms Gibson states that she was aware that the Applicant completed a BOSET HUET and sea survival course in Indonesia in June 2008. However, this was approved by the Respondent and was paid for by the Respondent. In the case of the course undertaken in October 2013, the course was at least not formally approved by nor had it been paid for by the Respondent.

8. The Applicant says that the first vessel he worked on for the Respondent after his initial HUET course in March 2003 did not have helicopter status and he worked on that ship for about two years. The Applicant was assigned to work on a vessel known as the Geosea for about two years during 2007 and 2008 and this vessel has helicopter landing facilities, and whilst working on this vessel his certification for HUET ran out and he made arrangements to renew that qualification in 2008 in Indonesia.

9. Since 2010 the evidence is that he has not worked or been assigned to work on a vessel with helicopter facilities. The Applicant says that because it had been mentioned that he needed to undertake the course in 2013 by Ms Gibson, he proceeded to make arrangements on his own initiative to gain the HUET qualification in order to enable him to undertake work on those vessels in the fleet that had helicopter facilities. There were approximately six vessels out of 23 in the fleet which had helicopter facilities and on which it was necessary to have a HUET qualification.

10. The Applicant gave evidence that he was keen to work on as many vessels as possible in order to build up additional leave periods, because the days that he was able to work on vessels in the course of a swing or tour of service the greater the number of days for leave entitlement would be. In 2013 he was concerned that he was not getting as many days at sea as he had previously.

11. Testimony for the Respondent was given by Ms Gullo and Ms Gibson.  For reasons given later, I prefer the evidence of the Applicant to that of Ms Gibson and Ms Gullo, and I accept that on two occasions statements were made by Ms Gibson which amounted to a suggestion that it was necessary for the Applicant to have an up-to-date HUET certificate.

12. The records of the Respondent relating to the Applicant indicate that on 15 July 2013 it was noted that there is a need for a BOSIET and to obtain that qualification it is necessary to have HUET training.  No satisfactory explanation was given as to the circumstances of the statement which appears to have been made by Ms Gibson to the effect that the Applicant “needs a BOSIET”. This note strongly re-enforces the Applicant’s evidence that Ms Gibson indicated to him that he needed a HUET qualification, notwithstanding her absence of any specific recollection to this conversation having taken place.

    LEGAL PRINCIPLES

13. In this case, the main question for the Tribunal is whether the Applicant’s injury occurred either arising out of, or in the course of, his employment.

14. In order to satisfy a requirement that an injury has arisen out of employment it is necessary to identify a causal relationship with the employment: see Dixon CJ in Kavanagh v Commonwealth [1960] HCA 25 at [9] and [10]. However, the expression ‘in the course of employment’ does not require such a causal connection.

15. In the recent decision of the High Court in Comcare v PVYW [2013] HCA 41 the court considered expression ‘in the course of employment’.

16. At [53] of the majority decision the court referred to Kavanagh’s case and said:

    The connectional association spoken of is not the causal connection which is attributed to the expression “arising out … the employee’s employment” in the definition of “injury” in the SR&C Act.  It is accepted that compensation maybe payable in respect of an injury which is suffered “in the course of” the employee’s employment notwithstanding that there is no such causal connection.

17. The PVYW case concerned the expression ‘in the course of employment’ and at [61] the majority concluded:

    … The two circumstances identified … were where an injury was suffered by an employee whilst engaged in an activity in which the employer had induced or encouraged the employee to engage; or where an injury was suffered at and by reference to a place where the employer had induced or encouraged the employee to be.  An injury sustained in these circumstances maybe regarded as sustained in the course of the employee’s employment.  Properly understood, whilst the inducement or encouragement by the employer may give rise to liability to compensation, it also operates as a limit on liability for injuries sustained in an overall period of work.

18. In the present case the Applicant’s primary submission is that the injury incurred by him whilst undergoing the HUET course in 2013 has ‘arisen out of’ the employment by the Applicant. However, as secondary position the Applicant contends the injury occurred ‘in the course of’ his employment with the Respondent.

    REASONING

19. I consider that having regard to the above principles, the Applicant’s injury has arisen out of his employment. The reasons for this conclusion are as follows.

20. As a requirement of his employment in 2003 the Applicant had undertaken the HUET course and thereafter for several years during 2006 and 2008 he worked on vessels with helicopter facilities such as the Geosea where the HUET qualifications were necessary. His employment involved his serving on several such vessels up to about 2010. After that date he did not work on vessels with helicopter facilities although he wished to do because the HUET certification qualified him to work on a wider range of vessels namely both those with helicopter facilities and those that did not have such facilities, and thereby he could take advantage of the generous leave provisions which were attracted by the number of days of actual service on a swing tour of duty.

21. In 2008 he undertook a further HUET course and this was also approved and paid for by his employer thereby enabling him to serve on ships which had helicopter pads and also he was able to serve on other vessels where such certification was not necessary.

22. I accept his evidence that he was on two occasions told by Ms Sophie Gibson, the Operations Co-ordinator of the Respondent, that in about April 2013 and September 2013 he had to get his HUET done and that after the second of these occasions he made calls to inform them that he was going to enrol in the October HUET course but his calls were not returned. Both Ms Gullo and Ms Gibson say that they have no recollection or record of such calls. 

23. I prefer the evidence of the Applicant to that of Ms Gullo or Ms Gibson because the Applicant was quite specific as to dates and timing of these calls. His evidence was not shaken or diminished in cross-examination and although the evidence of Ms Gibson was that she did not recall ever discussing the 2013 HUET course with the Applicant, there is a note in the records of the Respondent which reads:

    “15 July 2013 08:54 – SGIBSON : NEEDS BOSIET”

24. The expression “BOSIET” (Basic Offshore Safety Induction and Emergency Training) includes HUET training and certification.

25. This record supports the Applicant’s case that he was reminded on behalf of his employer of the need for renewal of his HUET qualification, in circumstances where his 2008 certificate had expired in June 2012. It is important to note that he was absent from work from February 2012 to April 2013 due to a knee injury sustained whilst in the employment of the Respondent.

26. There is evidence that in the course of his employment from time to time he could be required to replace crew members on other vessels, for example in emergency situations where a crew member was not available or had to be taken off duty.

27. The fact that a HUET qualification would enable him to serve on a greater range of vessels where there was a need from time to time for replacement would be of benefit both to the Applicant and to his employer because it would increase the number of qualified staff to serve on vessels where needed, for example in an emergency situation.

28. I have taken into account the evidence that since 2010 he has not been employed on vessels with helicopter facilities. However, the Applicant in this period was not working between 2012 and April 2013.

29. The evidence of Ms Gullo does not in my view advance the position of the Respondent has she had no direct contact with the Applicant and her evidence is based on a perusal of the Respondent’s records.

30. I am satisfied that having regard to the above evidence that there was in the present case a sufficient causal relationship between the injury incurred during the HUET training course and the employment of the Applicant as to satisfy the requirement that his injury has arisen out of his employment with the Respondent.

31. I am also persuaded that in the circumstances of the present case and applying the guidelines indicated by the High Court in PVYW at [61] the injury suffered by the Applicant occurred whilst he was engaged in an activity in respect of which it could be said that his employer had induced him to engage.

32. Whilst it is clear that the injury occurred between periods of actual work in the sense that he was not on a swing at the time of the injury, nevertheless, given the context of the past requirements for such training and the circumstances of the expiry of his previous certificate, together with the nature of the training which was of clear benefit to the employer and the employee, and also having regard to the statements of Ms Gibson and the records of the Respondent, I am also satisfied that the injury occurred ‘in the course of his employment’.

    CONCLUSION

33. The Applicant’s injury has arisen out of his employment with the Respondent because of the close relationship between the HUET training and qualification and the nature of the work carried out by the Applicant in the course of his employment, and also having regard to the statements of Ms Gibson on two occasions which demonstrate a sufficient causal relationship with the Applicant’s employment.

34. In addition to the above finding, for reasons set out above, I am also satisfied that the injury satisfies the test set out in PVYW with a consequence that the injury occurred in the course of the Applicant’s employment.

    DECISION

35. The Tribunal sets aside the decision under review and substitutes for it the decision that the Respondent is liable under s 26 of the Seafarers Rehabilitation and Compensation Act 1992 to compensate Mr Lovering for the injury that arose out of, or in the course of, his employment.

I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of The Hon. Brian Tamberlin, QC, Deputy President

.........................[sgd].............................................

Associate

Dated 19 June 2015

Date(s) of hearing

9 April 2015

Counsel for the Applicant

Solicitor for the Applicant

Mr T McKenzie

Mr D Hill, McNally Jones Staff Lawyers

Counsel for the Respondent

Solicitor for the Respondent

Mr B Dube

Mr M Hawker, Sparke Helmore