Nicholas v Norwest Shipping - [2002] AATA 806

DECISION AND REASONS FOR DECISION [2002] AATA 806

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/321

GENERAL ADMINISTRATIVE DIVISION       )
           Re      GRANT NICHOLAS
  Applicant
           And    NORWEST SHIPPING
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President

Date13 September 2002
PlacePerth

Decision The Tribunal sets aside the decision under review and, in substitution therefor, decides that: the respondent is liable, pursuant to ss 24, 25 and 26(1) of the Seafarers Rehabilitation and Compensation Act 1992 ("the Act"), to pay compensation to the applicant in accordance with the Act in respect of an "injury" to his right hand (being an "aggravation" of a pre-existing symptomatic condition of his right hand) which he suffered while performing his employment duties on board the MV "Sina" in March 1999; and the respondent is liable, pursuant to ss 24, 25 and 26(1) of the Act, to pay compensation to the applicant in accordance with the Act in respect of a mental "injury" (namely, adjustment disorder) which he suffered in November 1998 in the course of his employment on board the MV "Sina", up until 23 August 1999 but not thereafter.

...........(sgd S D Hotop)..........
Deputy President

CATCHWORDS
COMPENSATION – seafarers – applicant employed by respondent as a seafarer from January 1998 – applicant certified as medically fit for employment at sea in December 1997 notwithstanding pre-existing right hand condition and history of anxiety/stress – applicant reported incident to master of ship on 30 March 1999 involving complaint of anxiety and right hand pain – applicant discharged from ship on 2 April 1999 on ground of "illness" – applicant certified as medically unfit for sea duty from 2 April 1999 by reason of occupational psychological stress and right upper limb pain – applicant certified by Commonwealth Medical Inspector of Seamen as not medically fit for employment at sea by reason of, inter alia, "significant chronic adjustment disorder" and chronic pain and functional impairment of right upper limb – whether applicant suffered right hand injury – whether respondent liable to pay compensation to applicant in respect of right hand injury – whether applicant suffered mental injury – whether respondent liable to pay compensation to applicant in respect of mental injury.

Seafarers Rehabilitation and Compensation Act 1992 ss 3, 8, 9, 24, 25, 26, 58

Comcare v Mooi (1996) 69 FCR 439

REASONS FOR DECISION

13 September 2002 Associate Professor S D Hotop, Deputy President

Grant Nicholas ("the applicant") lodged with the Tribunal, on 15 October 1999, an application for review of a reviewable decision made on behalf of Norwest Shipping ("the respondent") on 28 September 1999 rejecting his claim for compensation, dated 7 April 1999, pursuant to the Seafarers Rehabilitation and Compensation Act 1992 ("the Act").
At the hearing the applicant appeared in person without representation, and the respondent was represented by Mr A Stavrianou of counsel. The Tribunal had before it the documents ("T documents") lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T1-T178, pp1-488) and various exhibits tendered in evidence by the applicant (A1-A14) and by the respondent (R1-R7). Oral evidence was given by the applicant and by the following additional witnesses: John Briggs, Dean Somers (who were called by the applicant), Paul Woollams, Geoffrey Read, Cleve Woollams, Dr Frank Bell, Dr Zelko Mustac and Dr Phillip Martin (who were called by the respondent).
The Factual Background
The relevant background facts, as found by the Tribunal on the basis of the T documents and the abovementioned exhibits, are as follows.
The applicant, who was born on 11 November 1964, was employed by the respondent as an Integrated Rating (or general seaman) from 21 January 1998 and subsequently served in that capacity on board the ship MV "Sina" operated by the respondent.
The applicant was finally discharged from the MV "Sina" at Broome on 2 April 1999 on the ground of "illness".
A form entitled "Notification and Preliminary Particulars of Accident/Sickness or Incident" certified by Captain G Read, Master of the MV "Sina", and dated 2 April 1999 referred to a report of an incident involving the applicant on board the MV "Sina" on 30 March 1999. The nature and extent of the relevant injury/sickness were described as follows:
"said to be suffering from anxiety and previous injury right hand and arm"

and it was stated that such incident had occurred while the applicant was carrying out his "normal duties" on board the ship. It was further stated that the applicant was examined by a doctor at Broome Hospital.

A form entitled "Master's Report of Injury or Illness", signed by Captain Read and dated 3 April 1999, referred to an injury or illness suffered by the applicant at sea and reported on 30 March 1999. The nature of the illness or injury was described as follows:
"1. Occupational Psychological Stress.
2. Chronic pain related to past injury of right hand and elbow."
A "First Medical Certificate", relating to the applicant's complaints of anxiety and right upper limb pain said to have occurred at sea on 30 March 1999, and supporting the commencement of weekly payments of compensation to the applicant in accordance with the Act, was issued by Dr M Dawson at Broome on 2 April 1999. The certificate stated that the provisional diagnosis of the applicant's condition was:
"1.Occupational psychological stress due to industrial issues that have not been resolved
2. Variable chronic pain related to right hand and elbow"

and that the applicant was unfit for sea duty and would be unfit for an "undetermined" period.

A "Progress/Fitness Medical Certificate" in relation to the applicant was issued by Dr J Troy at Fremantle on 6 April 1999 stating the clinical findings and diagnosis as "pain in right upper limb and occupational stress" and certifying that the applicant would be totally unfit for work for four weeks from that date.
The applicant lodged with the respondent a claim for compensation under the Act dated 7 April 1999 in respect of an injury said to have occurred on 30 March 1999 while working on the ship MV "Sina" and an illness said to have occurred while on long service leave. The circumstances in which the injury was said to have occurred were described in the claim form as follows:
"Climbing a ladder to grease the points, once on top a fear of height overcame me, fearing my hand R H (sic) would seize on the way down the ladder. Due to the aggravation on my R H (sic)".

The circumstances in which the illness was said to have occurred were described in the claim form as follows:

"…Went on LS leave. Told by company halfway through they don't want me on the ship. … Stressing myself and my girlfriend. Just taken mortgage out fear of no job nobody likes me. Asked Master 2 times for log entry told no not for public display. Went to office to sort money out, told again by Manager lazy bad attitude. This stress me…(sic)".

On 11 May 1999 the respondent rejected the applicant's abovementioned claim for compensation. Following a request by the applicant for a reconsideration the respondent, on 28 September 1999, again rejected his claim for compensation.
The Applicant's Evidence
Various written statements of the applicant, outlining the background to his present claim for compensation and the events immediately giving rise to that claim, appear in the T documents and in the exhibits tendered in evidence. The Tribunal has had regard to those statements but will not set them out here. The applicant also gave extensive oral evidence the substance of which was as follows.
As regards his right upper limb, the applicant first referred to the history of injuries to that limb, namely, a broken wrist in 1981, a broken elbow in 1987, and a crush injury to the right hand in 1988. Asked by the Tribunal to recount the circumstances of the incident involving his right upper limb on 30 March 1999 referred to in his compensation claim form, the applicant explained that during the week immediately prior to that incident he had, in the course of his work duties on board the MV "Sina", used a "chipping gun" (which he described as "air-driven" with a "lot of vibration") and that this did not do his hand or arm "any good". He added that using a chipping gun (or "chipping hammer") was a common job for him, although he had told the bosun that he could not use it very well and that it did not do his arm and hand any good. He said that the bosun's response was that using a chipping hammer was part of his (the applicant's) job. He said that after using the chipping gun his hand was aching and that he had to sleep with it resting on a pillow. As regards the particular incident itself, the applicant said that as he climbed a ladder on the ship, holding a pot of grease, he "must have bumped" the ulnar nerve in his right hand and he felt a pain sensation like a "sharp electric shock" which lasted about five minutes. He said that he then could not really grip anything and "just sort of froze up there, just in fear" that he might fall. His evidence continued:
"So then what happened? --- Well I think I knocked off in the afternoon, I think, I didn't report it to anybody, because I thought well they will just think I am trying to go on compo or something, you know, so why report it, I will just have to put up with the pain and then that night I had to – I was in pain, the whole arm and everything was in pain and I had medication for it, so I took that. Using the chipping hammer and climbing the ladder.
All right and after this occurred, this was on 30 March '99 according to your claim form, how did that affect your work duties after that? --- Well, I just thought what can I do, you know, I really can't do anything, they are going to have a go at me because I don't like using chipping hammers, they make my arm sore and everything. I really couldn't do anything, you know, I can't really tell them because if I go on compensation, they will take away my medical certificate, the AMSA and then I haven't got a job. Meanwhile I had gone into debt with this company, thinking I had a secure job. So I couldn't really do much."
(Transcript, p45)
The applicant then went on to describe the circumstances of the long service leave incident referred to in his compensation claim form. He said that the relevant period of long service leave was from 9 July 1998 to October 1998. He said that towards the end of August 1998 Paul Woollams (the son of Cleve Woollams, the General Manager of the respondent), whom he had known as a friend for 15 years, visited him at home and told him that another man had been employed in a permanent capacity in his position on the MV "Sina". He said that he then went to the respondent's office and asked the manager (Cleve Woollams) about his job status, whereupon the manager informed him that he still had a job but that a "permanent" seaman had been called up to fill his position and that he should speak to union representatives about the matter. He said that the manager then told him, at the front counter in the presence of office staff, that the crew of the MV "Sina" did not want him to go back and that he was "lazy" and had a "bad attitude". He said that he was "very shocked and embarrassed" by this, in addition to feeling very distressed about his job status especially having regard to the fact that he had recently undertaken a substantial home mortgage financial commitment. He said that these events caused him great stress and anxiety at the time and that these emotional effects were ongoing.
The applicant also described the feelings of stress and anxiety he experienced during his period on board the MV "Sina" after the abovementioned long service leave incident until he finally left the ship at the end of March 1999. He said that after "fighting to get [his] job back", he felt that his work ethic and attitude on board the MV "Sina" were being attacked from all sides. He referred to a particular incident in which the chief engineer informed him of deficiencies in his job performance and called a formal meeting with the captain and a union representative to discuss the matter. He said that at that meeting he inquired who was attacking his work ethic and attitude and he was "threatened" with being charged with a breach of the [Australian Merchant Navy] Code of Conduct. He said that at the end of the meeting an entry was made in the ship's log book and that he was subsequently informed by the bosun that the log book entry was unfavourable to him. He said that he requested the captain's permission to read the log book entry so that he could reply to it, but that permission was refused, thereby causing him to feel "shocked and stressed".
The applicant said that he subsequently did two further trips on the MV "Sina" which were "incident free", after which he went back to the respondent's office to arrange for payment for a medical examination. He said that, just as he was leaving, the manager (Cleve Woollams) again told him he was "lazy" and had a "bad attitude" and that this was said in the presence of Mark Regan, a union representative, and office staff. He said that this caused him to feel great anxiety, low self-esteem, and shock.
The applicant also gave evidence regarding the effect of the abovementioned incidents on his work capacity. As regards his right upper limb, he said that, although he could "handle the pain so much", he could not use a chipping hammer "on a repeating basis" and when he did use a chipping hammer he needed to rest his hand and arm the following day so that he could thereafter carry out his general deck duties. He added that, because "there are no light duties at sea", he had to be 100% fit. He went on to say that Dr Martin had passed him fit to go to sea in 1995 (prior to his employment with the respondent) but that he had had problems with his hand from then. As regards his stress condition, he said that that had begun in 1997 (prior to his employment with the respondent) and that, following the abovementioned long service leave incident in late August 1998, his stress condition had adversely affected his capacity to work on board a ship in a "confined space" in harmony with other crew members.
Under cross-examination by Mr Stavrianou (for the respondent) the applicant was questioned about the condition of his right hand, in particular since 31 May 1988 when he sustained a severe crush injury to that hand prior to his employment with the respondent (which commenced in January 1998). The applicant's answers to those questions were evasive and unsatisfactory and no useful purpose would be served by summarising them here. [The Tribunal notes that the medical condition of the applicant's right hand post-31 May 1988 is well documented in the relevant medical reports in the T documents which will be referred to later in these reasons.]
The applicant was asked why he consulted Dr D Williams (Orthopaedic Surgeon) in late 1995. He explained that it was because he was worried about his hand and about being able to perform his duties in the maritime industry. He added that from 1988 onwards his right upper limb and hand "didn't get any better, the job didn't make it any better", so by 1995 he had decided "to get out of the industry". He said that he also saw Dr Martin but was again assessed by him to be fit for sea duties. He agreed that at that time he was having difficulties performing his duties by reason of his injuries.
The applicant was also questioned about an incident in May 1996 when he reported the occurrence at sea of an aggravation of the previous injury to his right arm and hand. He could not recall the entire incident but he could recall that he had been "lowering the IG filters and the rope must have jarred [his] hand".
The applicant confirmed that he received compensation, and also instituted proceedings in the District Court seeking damages, in respect of the crush injury to his right hand which he sustained on 31 May 1988. [The Tribunal notes that the latter action was settled by consent judgment in the amount of $25,000.00 on 1 September 1994 (Exhibit R4)].
The applicant was next questioned about the alleged incident involving his right hand on board the MV "Sina". He confirmed that that incident occurred on 30 March 1999 and he described it as an "aggravation" of a previous injury to his right hand. He also confirmed that no other person was with him at the time of the incident. The applicant was then referred to MV "Sina" log book entries dated 22 and 23 November 1998 regarding meetings to discuss the applicant's work performance and behaviour, and a log book entry dated 30 March 1999. That log book entry stated as follows:
"1110. IR G Nicholas requested a 1300 meeting with the Master and MUA delegate.
1300. Meeting held in Master's cabin between the Master, C/O R Mann, IR G Nicholas and IR M Regan. Mr Nicholas was invited to speak. Mr Nicholas stated that he was suffering from stress, which was causing him anxiety, loss of sleep and difficulty in coping with his normal duties and generally with being on board the ship. Mr Nicholas referred frequently to prepared notes as he detailed several past-work related accidents which he said were contributing to the stress he felt. He also read excerpts from some letters he brought with him which alluded to a past injury to his right hand, which he said was also causing him stress. Mr Nicholas went on to say that he felt that no-one on board the ship liked him and he said he just wanted to get off. After some discussion I concluded that it would be prudent to release Mr Nicholas from service on the ship by mutual consent at the next port. I advised Mr Nicholas not to attempt any duties with which he felt uneasy and to communicate any further difficulties to myself or others present. After obtaining medical advice I administered 6 Diazepam 5 mg tablets along with an information sheet and written instructions on dosage."

The above log book entry was signed by the Master and the Chief Officer. It was put to the applicant that that log book entry contained no reference to an accident he claimed had occurred on 30 March 1999. The applicant responded that he did not understand the question and that he did not recall. The applicant's cross-examination continued as follows:

"Mr Nicholas, right from the outset you thought that this was a good claim that you could make. Isn't that the case? And so when you went and saw the skipper on 30 March 1999 to get your discharge, you took all your letters with you? --- I don't understand what you are trying to say.
When you saw the skipper on 30 March 1999 you were arranging then ---? --- Well, I was clearly, clearly upset. Clearly upset by what had happened to me on long service leave. I thought I would bring the pieces of paper ---
It had nothing to do with your right hand, did it? --- Sorry?
It had nothing to do with your right hand because your right hand was – there was no new injury? --- No, it had something to do with it. It was an aggravation of the injury on board the vessel. At that time."
(Transcript, p185)

The applicant was also referred to a log book entry dated 1 April 1999 which stated as follows:

"1010. CIR T Duff and IR G Nicholas attended on bridge. Mr Nicholas requested to see a doctor at Broome in order to obtain clearance for his flight home. He also asked for more medication as he had run out. I administered 4 more Diazepam 5 mg tablets to Mr Nicholas."

That log book entry was also signed by the Master and the Chief Officer. The applicant responded that he could not recall that meeting, although he could recall the meeting about the "code of conduct issue".

The applicant was also questioned about his description of the incident involving his right hand on 30 March 1999 as set out in his compensation claim form dated 7 April 1999 (see paragraph 10 above). It was put to the applicant that that description does not contain any reference to his "bumping" his hand as he climbed up the ladder, as stated in his evidence-in-chief (see paragraph 13 above). The applicant responded that, although he had not included a reference to "bumping" his right hand, it was "due to the aggravation" of his right hand. When asked to explain his reference to the "aggravation" and its cause, he responded:
"Well, I bumped it.
…
Well, when I knocked it on the way up."
(Transcript, p214)

When it was put to him that none of the doctors whom he had seen after that incident had made any specific reference in their reports to his "bumping" his right hand, he responded that he thought he had told them that he had bumped his hand while climbing the ladder.

The applicant was later questioned about his alleged psychological or psychiatric problems. Asked to explain the cause of those problems during his employment by the respondent, the applicant said that the incident which caused them was when he was on long service leave and was approached by Paul Woollams (the son of the General Manager of the respondent) about his "job status". He said that he became "quite agitated" and "quite upset" and that Paul Woollams told him not to worry. He said that at the earliest opportunity he went to the respondent's office to see Cleve Woollams (the General Manager) about his job and he reiterated that, as he was leaving the office, Cleve Woollams "shouted" at him and "yelled out in front of everybody" that he was "lazy and bad attitude (sic)". The applicant acknowledged that, after that incident and following a period of leave, he returned to his full-time job on the MV "Sina". He also acknowledged that he did not consult a doctor at that time regarding a stress condition.
The Lay Evidence
John Briggs
John Briggs, Manager, Ship Operations and Qualifications, Australian Maritime Safety Authority, was called as a witness by the applicant. The applicant tendered in evidence a letter dated 7 March 2002 from Mr Briggs regarding the Australian Merchant Navy Code of Conduct. That letter (Exhibit A3) states as follows:
"Reference your inquiries relating to the Code of Conduct and logbook entries I can advise you as follows.
The Code of Conduct was drawn up by the Australian Maritime Safety Authority (AMSA) in consultation with representatives of shipowners and maritime industrial organisations. The Code is not mandatory but can be called up in the Articles of Agreement for a ship in which case it becomes an agreed Code of Conduct applying to the ship.
The Code of Conduct specifies procedures to be complied with when dealing with an alleged breach of the Code and this includes the procedures for making an entry in the ship's official logbook.
I have enclosed a copy of the Code of Conduct for your information."

The applicant's questions addressed to Mr Briggs largely called for expressions of opinion regarding his "rights" under the Code and whether breaches of the Code had been committed by the Captain of the MV "Sina" in relation to the applicant. As regards the latter issue, Mr Briggs was unable to express an opinion. As regards "Code of Conduct proceedings" generally, Mr Briggs said that the normal procedure is that the Master makes an entry in the ship's log book and any crew member who is the subject of comment therein is given a copy and the right to respond and also the right to have their response entered in the log book.
Dean Somers

Dean Somers, National Co-ordinator of the International Transport Workers' Federation, was called as a witness by the applicant. The applicant sought to question Mr Somers about matters related to the abovementioned long service leave incident in August 1998 (at which time Mr Somers was State Secretary of the Maritime Union of Australia). Mr Somers was unable to recall any relevant specific matter regarding the hiring by the respondent of a permanent replacement for the applicant on the MV "Sina" during his long service leave. Accordingly, his evidence is of little assistance in the determination of the present application for review.
Paul Woollams
Paul Woollams, who gave his occupation as "merchant seafarer", was called as a witness by the respondent. A written statement of Paul Woollams, dated 15 March 2002, was tendered in evidence (Exhibit R5). The relevant contents of that statement are as follows:
"1. I am have known Grant Nicholas personally for at least 20 years. He went to school with my sister. I did consider him a 'mate'.
2.The only professional involvement I have had with him was when I worked with Grant on a BP tanker before he commenced working with Norwest Shipping. As part of our social interaction I would frequently visit Grant Nicholas at his home.
3. On one occasion, the precise date of which I do not recall, I visited Grant at his house. I believe that he may have been on compensation at the time although I am not certain. I mentioned to him in passing that Norwest Shipping had engaged a permanent IR. He did not seem particularly concerned about that. He certainly did not become aggressive or voice any particular dissatisfaction nor did he have any argument with me about it or raise his voice.
4. As I said during my visit at Grant Nicholas' house he did not lose his temper nor did he become enraged when I mentioned to him that his replacement was engaged on a permanent basis.
I do not recall precisely how long I stayed at Nicholas' house although I think it may have been approximately 1 hour.
The visit ended cordially and indeed I have seen Grant Nicholas on a couple of occasions since then.
5. …
I understand that Grant Nicholas' replacement as a permanent was an error made by the Union or the Seamen's Engagement System and had nothing to do with Norwest Shipping.
6. In my subsequent encounters with Grant Nicholas since the alleged incident he did not at any stage mention to me the incident or the claim nor did he state any dissatisfaction or express any anger at my having mentioned his replacement as a permanent on the occasion in question, nor did he question me about it any further or discuss it with me.
…
7.When I mentioned it to Grant I did not do so on behalf of the company or in any formal or official capacity. I had not been asked to do so on behalf of the company nor was I authorised to do so. I simply mentioned to him in passing as a friend.
…
10. I am Cleve Woollams' son…
…".
In his oral evidence Mr Woollams confirmed that the contents of the above statement are true and correct. He also confirmed that the visit by him to the applicant's house, referred to in that statement, was a "social call".
Cleve Woollams
Cleve Woollams, General Manager of the respondent, was called as a witness by the respondent. A written statement of Cleve Woollams, dated 8 March 2002, was tendered in evidence (Exhibit R7). The relevant contents of that statement are as follows:
"1. I am aware of Grant Nicholas' allegations to the effect that I 'yelled at' him from the 'top of my voice' at the front counter of my office to the effect that Nicholas is 'lazy and has a bad attitude'.
I vigorously deny any such allegation. I did not at any stage lose my temper at Nicholas, nor is it in my nature to yell at people. I certainly did not at any stage yell at Nicholas or cause him any embarrassment.
2. My recollection of what transpired follows.
Nicholas was engaged as a permanent Integrated Rating on 21 January 1998.
3. Nicholas was on long service leave. As is company policy when an employee goes on long service leave a replacement crew is obtained from the Seamen's Engagement System. In accordance with the company's usual practice Norwest Shipping requested a relieving IR as a temporary replacement for Grant Nicholas whilst Grant was on his long service leave. In fact on that occasion I recall that a temporary relieving IR was requested (to replace Grant temporarily) and a permanent IR was requested as we needed an additional permanent IR.
4. At that stage due to an apparent administrative error in the Seamen's Engagement System Norwest Shipping was provided with 2 permanent IRs rather than a permanent IR and a relief IR as we had asked for. This is relatively common in the industry and seamen are generally aware of this. On all occasions when this occurs the original incumbent retains his or her job.
5. I understand that this may have come to Grant Nicholas' attention, although it was an error in the Seamen's Engagement System and was not in any way the fault of Norwest Shipping.
I am aware of Grant's allegation that my son (who is a friend of Grant's) notified him that a permanent IR had been engaged. If such a conversation occurred then it was not with the authority or as representative of Norwest Shipping. Grant Nicholas then came to see me in my office one day asking what had happened and why he had been replaced by a permanent crew. I explained what I understood the position to be and I then suggested that he go to the Union and discuss the position with them given that it was their system (namely the Seamen's Engagement System) that appears to have been at fault and not Norwest Shipping.
I understand that the Union offered him a permanent position on another vessel. Grant Nicholas apparently however refused the offer of permanent employment stating that he wanted his job back on the 'Kimberley' (sic). This was relayed to me and I then had to contact the 2 new permanent IRs who had been provided to Norwest Shipping by the Seamen's Engagement System and ask them which of them would be prepared to leave given that one of them ought only to have been engaged as a relief IR. One of the IRs volunteered to leave so as to give Grant Nicholas his job back. He indicated words to the effect that 'he did not feel that he could work with' Grant Nicholas and accordingly he was quite happy to leave the vessel making way for Grant to regain his position.
6.My recollection is that Grant then attended my office on a second occasion and I explained to him what had happened. I suggested to him in a very friendly fashion without in any shape or form losing my temper, raising my voice or being threatening that he should 'smile while he worked and worked (sic) while he smiled'. I certainly did not at the top of my lungs accuse him of being lazy and having a bad attitude. I repeat that it is not in my nature to lose my temper or yell at anyone. If I am angry I am more likely to remain silent than to lose my temper. In any event I did not lose my temper with Grant.
7. Grant Nicholas then returned to work having regained his previous position (despite the error on the part of the Seamen's Engagement System) and he continued working in that capacity for some 6 or 7 months after he returned from long service leave without any problem whatsoever.
8. On the voyage before Grant was paid off the vessel in Broome Norwest Shipping had a television crew from the television series 'Postcards' travel onboard the vessel for some 5 days. Video footage is available of this. Grant worked on the vessel without any problems whatsoever and he is observed to have acted both while onboard the vessel and whilst ashore at a report (sic) on Cockatoo Island in a stress free manner.
9.As far as Norwest Shipping and myself was concerned the issue of the error made by the Seamen's Engagement System had been resolved to everyone, including Grant Nicholas' satisfaction and there was no further issue concerning it. Certainly I was not aware of any ongoing complaint or dissatisfaction by Grant Nicholas, who to the best of my knowledge continued to perform his work without any difficulty. Certainly I was not aware of any complaint.
…
11. To the best of my recollection the only other contact that I have had with Grant Nicholas since the alleged incident (which is denied) is when Grant came to see me in relation to completing his compensation form. I told him that it was not my decision and whether he received compensation at first instance would be up to the insurer.

12.I personally did not have any problem with Grant Nicholas at any stage during his employment with Norwest Shipping. I certainly had no cause to, nor did I yell at him or embarrass him in any way. …

…".

In his oral evidence Mr Woollams confirmed that the contents of the above statement are true and correct. He denied that he had "yelled" at the applicant in the office, although he added:
"I only know what I get told. And I had had some comments that Grant had a bad attitude on the ship. And that he was lazy, yes. And I don't deny that I said it to him but I would never have yelled it at him."
(Transcript, p 390)

Mr Woollams was referred by the applicant to a handwritten statement, dated 28 November 2001, purporting to be signed by Marcus Regan. [That statement had earlier been tendered in evidence by the applicant (Exhibit A11), although Mr Regan was not called as a witness.] That statement contains, inter alia, the following sentence:

"I was also present at the shipping office when Cleve Woollams yelled at Grant for (sic) across the office that he was lazy and had a bad attitude."

Asked by the applicant whether he recalled that incident, Mr Woollams responded:

"No, it never happened…".

He added:

"I categorically deny it, because at the time when you were on long service leave, Marcus Regan never worked on the 'Sina'. He hadn't been engaged at that time, so that…this statement is completely untrue.
…I'm denying that he was in the office, I am denying that he was in our employ and if he wasn't in our employ there would be no need for him to be in our office."
(Transcript, p 392)

Geoffrey Read

Captain Geoffrey Read was called as a witness by the respondent. A document entitled "Summary of Evidence of Captain G H Read", dated 1 February 2002, was tendered in evidence (Exhibit R6). The relevant contents of that document, as amended by Captain Read in his oral evidence, are as follows:
"1. I was Master of the MV 'Sina' throughout the period of Mr Nicholas' employment by Norwest Shipping.
2. Mr Nicholas commenced working on the MV 'Sina' as an integrated rating in February 1998.
22 November 1998 Incident
3. I recall an incident on 22 November 1998 in which Mr Nicholas had a serious confrontation with the Chief Engineer, John Carder. I have looked at the log book entry to refresh my memory of this incident. I now recall that Mr Nicholas was assigned to work under Mr Carder's supervision en route from Wyndham to Fremantle. I received a complaint from the Chief Engineer to the effect that Mr Nicholas had demanded written orders before he would repaint hydraulic lines on deck. Mr Carder believed that the work had not initially been completed to a satisfactory standard. After an extensive unproductive discussion Mr Nicholas agreed to return to work. I felt that Mr Nicholas had displayed an aggressive and defiant demeanor throughout his conversation.
4. I conducted a formal investigation into the matter with both Mr Carder and Mr Nicholas present. I refer to my log book entry of 23 November 1998 from which I recall that I had also called the Chief Officer, Mr Heppingstone, and IR, Mr Duff, to the bridge to witness the investigation. The Chief Engineer had on 22 November 1998 taken Mr Nicholas to various parts of the deck where Mr Nicholas had performed work which was substandard and requested rectification of the work. Mr Nicholas apparently stated words to the effect that 'I'm not perfect like you'. He then allegedly advanced aggressively towards the Chief Engineer and allegedly knocked him off the accommodation step. The Chief Engineer advised me that he believed that Nicholas might hit him. Mr Nicholas and the Chief Engineer then entered the accommodation area where Mr Nicholas demanded written orders to repaint the hydraulic lines on deck. Mr Carder then invited Mr Nicholas onto the bridge to receive the written orders that he had requested.
5. Mr Nicholas refused to participate in the investigation that I was endeavouring to conduct other than to deny having assaulted Mr Carder or to act aggressively or in a threatening manner towards him. He did, however, concede having said words to the effect that 'I'm not perfect like you' and he conceded having knocked the Chief Engineer off an accommodation step but said it was 'an accident'.
6.Throughout the investigation Mr Nicholas repeatedly interrupted me and walked out of the meeting until I warned him that such behaviour would limit my options in dealing with the matter. Mr Nicholas kept enquiring about who had told the Manager that his work performance was unsatisfactory. I noted in the log book that I at the time felt that Mr Nicholas' remarks were intended by him to be intimidating and threatening. I warned Mr Nicholas that I would not tolerate intimidation or threats and warned him against acting aggressively when receiving lawful orders from the ship's officers.
7. On 24 November 1998 Mr Nicholas requested a copy of the deck log extract. I refused his request.
27 March 1999 Incident
8. I do not recall any other specific incident until 27 March 1999 (being some 4 months after the initial incident). At approximately 10.00am on 27 March 1999 whilst the 'Sina' was discharging in Fremantle in the harbour Mr Nicholas approached me on the bridge. In the presence of the Second Officer, Mr Raymond Gason, he demanded a copy of the deck log entry for 22 and/or 23 November 1998. I again refused his request and told him that he would have to get management approval for me to release a copy to him. Mr Nicholas then swore at me and stormed out of the bridge slamming the wheelhouse door violently.
9. From this time I recall noting that Mr Nicholas' behaviour was erratic.
30 March 1999 Incident
10. On 30 March 1999 whilst the MV 'Sina' was en route from Fremantle to Broome Mr Nicholas approached me requesting a formal meeting to which I agreed. I have again referred to my log book to refresh my memory. I now recall that the meeting was held at 1300 on 30 March 1999 in my cabin. Chief Officer, Mr Mann, was also in attendance as was IR, Mr Regan. At that point Mr Nicholas advised me that he was suffering from stress caused by loss of sleep, difficulty in coping with his normal duties and anxiety. He referred to written notes which he had prepared relating to alleged earlier incidents which he said were contributing to his stress. He also had with him letters in (sic) which he read relevant excerpts which referred to a past injury to his right hand which he said also contributed to his stress. He stated his belief that he was disliked on the vessel.
11. Following this meeting I concluded that it would be in the best interests of all concerned and in the interests of safety of the vessel that Mr Nicholas be released from service by mutual consent at the next port. I obtained medical advice and then administered 6 diazepam tablets to Mr Nicholas and advised him not to endeavour to undertake any duties which he felt uneasy and to advise me of any difficulties.
12. I notified Norwest Shipping of the meeting and requested that arrangements be made for Mr Nicholas' repatriation from Broome.
1 April 1999 Incident
13. I have again refreshed my memory from the deck log entries which indicate that on 1 April 1999 at approximately 8.00am Marcus Regan advised me that Mr Nicholas had requested that he advise me that he did not feel like working today.
14. At approximately 10.10 on 1 April 1999 Mr Nicholas in the company of Chief Integrated Rating Duff attended the bridge. Mr Nicholas requested permission to see a doctor in Broome to obtain a certificate for his flight home and he asked for more medication. On his request I administered a further 4 diazepam tablets.
15. In accordance with Mr Nicholas' request I instructed the Chief Officer to relieve Mr Nicholas of his duties that day and I made arrangements for Mr Nicholas to see a doctor in the Broome Hospital the following day.
16. Before leaving the vessel on 2 April 1999 I signed Mr Nicholas off his Articles of Agreement as a new Agreement would be in place by the time of his return. Mr Nicholas objected to my having stated that he was relieved of his duties 'by mutual consent'. I explained to him that he was leaving the vessel as I gave him permission to leave the vessel as he had asked. At that point it became clear to me that in fact Mr Nicholas would have preferred to leave the vessel having been declared unfit and it was for this reason that he had sought medical advice, namely on his ability to leave the vessel rather than obtaining medical advice on his alleged condition.
…". (original emphasis)

In his oral evidence Captain Read confirmed that the contents of the above document, as amended, are true and correct.
In response to questioning by the applicant, Captain Read acknowledged that the "formal investigation" referred to in paragraphs 4-6 of his abovementioned summary of evidence was a proceeding under the Code of Conduct and that that proceeding resulted in the applicant's being reprimanded and formally warned, rather than disciplined. Later in his evidence, however, Captain Read said that a reprimand constitutes disciplinary action.
Captain Read was questioned by the Tribunal about the reports he had made about the incident of 30 March 1999 involving the applicant's right hand on board the MV "Sina" (see paragraphs 6 and 7 above). Captain Read said that he first became aware that the applicant had a past injury to his right hand at the meeting held at 1300 hours on 30 March 1999, referred to in paragraph 10 of his summary of evidence (above). His evidence continued:
"And was there anything that was said to you that happened on that day or shortly before that day in relation to that right hand injury that was of long standing?--- It came out the – Mr Nicholas brought it up during the meeting but I didn't know.
Do you recall what he said about it? --- He said that it was causing him stress, you know, using a chipping hammer and climbing ladders he found particularly troublesome and - - -
Troublesome in what sense did you understand him to mean?--- I understood him to mean that it was akin to a weakness in the hand which made, I would say, chipping may be painful and climbing a ladder might have been stressful from the point of view of just, you know, holding on to the ladder, being sure of your grip.
And did he mention any particular incident that occurred while climbing a ladder, just either on that morning or shortly before that time?---Not that I am aware. Not that I can recall.
…
Well, he told me about the injury and said it caused him discomfort or grief. I can't recall the exact way he put it to me but, you know, using a hammer, a chipping hammer, and climbing ladders were two things which were affected by this previous injury.
So with the ladder – so how was climbing the ladder being affected by the previous injury?--- How was climbing the ladder – I don't really know. I mean, if you have an injury to your hand then I made the assumption that you wouldn't feel comfortable, you know – when you are climbing a ladder you need to feel secure on the ladder and if you have got a problem with the hand then you obviously don't feel secure or safe when you are climbing a ladder.
Why not?---Well, I mean, some people are comfortable to have a grip with a ladder with one hand and other people prefer to have two hands with a good grip on the ladder.
All right. So what's it to do with your ability to grip the ladder – it was to do then with his ability to grip the ladder?---As far as I understood."
(Transcript, pp 332-333)
Captain Read was further questioned by the applicant about the ladder incident. The applicant put it to Captain Read that he had told him that he had knocked his hand and was also in pain climbing up the ladder. Captain Read responded:
"I don't believe you did, no."
(Transcript, p 335)
Finally, Captain Read's evidence in response to further questioning by Mr Stavrianou was as follows:
"Were you ever – you were asked a question before about an incident involving bumping a hand on a ladder, were you ever advised of any specific incident on the 30th – that occurred on 30 March?---No.
Were you ever advised of any ongoing problems in relation to the right hand?---No, but Mr Nicholas left the ship on 2 April.
Is it the case that there was simply a complaint of pain which was long standing which was on 30 March, that's what you - - -?---Well, that is correct. The thing which struck me during that meeting was that Mr Nicholas – nothing that Mr Nicholas complained about was relevant to his current employment. That – and I raised that with him at the time."
(Transcript, pp 337-338)

The Medical Evidence – Prior to Applicant's Employment with Respondent

Numerous medical reports and related documents concerning the applicant, dating from 25 February 1986, are contained in the T documents. These include various medical reports referring to the severe crush injury to the right hand sustained by the applicant on 31 May 1988, when he was employed by Union Bulkships, and his subsequent medical treatment and symptoms. Selected references to those reports follow.
A report of Dr C Allen, Plastic Surgeon, dated 30 August 1990 stated (inter alia):
"He therefore has a permanent disability affecting his right hand and as a result of the accident. His main problems are those of contractures and inability to straighten the ring and little fingers and a sensitivity of the skin grafted area over the palm of the hand. I would evaluate the extension loss of the ring finger to be amounting to 20% disability and the extension loss of the little finger amounting to 75% disability.
As a result of his injury it is expected that he will have diminished grip strength of the hand, partly due to the loss of muscle in the palm of the hand and also the unpleasant sensation of the skin in the palm of the hand underlying the skin graft. He will be permanently unable to fully straighten the ring and little fingers at the metacarpophalangeal joint and there will be limited abduction of the little finger."

A report of Dr P Hales, Orthopaedic Surgeon, dated 1 February 1991, concluded:

"In summary therefore this man has been left with restriction of motion, loss of grip strength and sensitive scars in his hand following a severe crush injury. There is quite significant damage and loss of intrinsic musculature which would interfere with dexterity of the hand and grip strength."

A report of Dr C Allen, dated 5 August 1994, stated (inter alia):

"…
6.       Work capabilities
I feel he is able to undertake most ordinary activities as a seaman, however, there are a few activities that will be difficult and unpleasant for him to perform. This includes splicing a wire rope which involves pushing the palm of his hand on the end of a splicing spike and as he is right handed, this causes considerable discomfort in the area of the hypersensitivity in the region of the skin graft in the palm of his right hand. For the same reason he has trouble using the vibrating chipping gun as the rapid movement of the gun causes the unpleasant sensation to the nerve endings in the palm of the hand. I feel that unless he is able to use his left hand for these activities, he would find it difficult to perform these tasks adequately with his right hand.
7.       Restriction of movement of right hand
As mentioned above he does have limited extension of index, middle, ring and little fingers at the MP joint of his right hand and there is some restriction of flexion of his wrist. This was due to a combination of scarring to the small muscles of the hand, stiffness of the ligaments around the joints and to some extent osteoarthritic changes which may have partly developed as a result of the accident but may have been present to some extent prior to the injury.
8.       Incapacitation
He does have permanent changes to the function of the hand which involve some limitation of movement, reduction in grip strength and hypersensitive scars. His condition has now stabilised and I would assess his percentage residual disability as amounting to 35% of total hand function.
…".

A report of Dr D Williams, Orthopaedic Surgeon, dated 24 November 1995, concluded as follows:

"We have clearly identified significant long term disability here in the right hand related to his crush injury in May 1988 and there is a situation of increasing difficulty and disturbance in terms of functional capacities and I believe there is an awareness now that he is not going to cope as a seaman with the requirements of that work activity and my assessment is that he should look at changing his work situation and looking at vocational assessment and vocational rehabilitation efforts.
…
There is no question in my mind that his work as a seaman is unsuitable for him in the long term and that it is an appropriate time for him to look at alternative vocational assessment and rehabilitation efforts and changing his work direction as I believe there is evidence that his functional capacities are limiting to work as a seaman and there is an element of safety risk that could jeopardise other work people in his work environment as a seaman.
…
…I don't believe he is capable of performing relative duties without creating an unacceptable risk to himself and other crew members and to the safe operation of the ship and therefore he faces the reality that he should leave his current work situation and seek in a more appropriate work area for the future and therefore I don't believe he is fit to perform these duties and this will be a situation that remains into the future.
…".

There are also medical certificates and reports relating to work-related aggravations of the applicant's May 1988 right hand crush injury on 4 November 1995 and 10 May 1996 (that is, prior to the commencement of his employment with the respondent).

As regards the applicant's mental condition, there appear in the T documents relevant medical reports dating back to 1997 when the applicant was employed by Tidewater Port Jackson Marine on the ship "Brute Tide". A report of Dr E Bajrovic, dated 24 December 1997, stated (inter alia):
"My assessment of Mr Nicholas concurs with that of both Dr Harwood and Dr Guy Windsor. Mr Nicholas is not suffering from any psychiatric illness. He shows no paranoid ideation nor is he delusional. I do not feel that he is depressed, but he is certainly suffering from stress and his sleep disturbance (insomnia) is a secondary result of this. He did not appear particularly agitated during the course of our interview."

A report of Dr P Martin, dated 29 December 1997, expressed the following opinion:

"I express the view that Mr Nicholas is suffering with situational anxiety/adjustment disorder. This is superimposed on a background of personality traits which would appear to adversely impact upon interpersonal relationships and on his conflict resolution capacities.
Although Mr Nicholas continues to report some ongoing insomnia (his current employment situation remains unresolved), I am unable to define any underlying psychiatric illness, other than symptoms associated with situational anxiety. I believe that he is currently fit to undertake the duties of a Seaman; notwithstanding, that this would be best managed by transferring to a different vessel with another employer, so as to allow the current industrial and interpersonal conflicts to 'defuse' spontaneously."

The Medical Evidence – After Commencement of Applicant's Employment with Respondent
Right Hand Condition

As regards the period between the commencement of the applicant's employment with the respondent on 21 January 1998 and the alleged incident regarding the applicant's right hand while climbing a ladder on board the MV "Sina" on 30 March 1999, the only relevant documents contained in the documents are:
· a Certificate of Medical Fitness dated 9 October 1998 by Dr N Street , Medical Inspector of Seamen, certifying, pursuant to the Marine Orders Part 9 (Health – Medical Fitness), the applicant's medical fitness to serve on board a ship; and
· a radiology report relating to the applicant's right upper limb dated 25 February 1999 by Dr J Ives which states, in relation to the right wrist and hand, as follows:
"There is a large ossicle in the position of the ulnar styloid is likely due to a united fracture. There is an unusual appearance at the radial side of the distal carpal row with suggestion of trapezoid subluxation and degeneration of the second carpo-metacarpal joint. An old healed fracture of the fifth metacarpal is noted. Bony abnormalities at the capitellum and trapezoid/second metacarpal would benefit from further imaging with CT, if this has not already been done. No previous films are available for comparison at the time of reporting."
As regards the alleged incident involving the applicant's right hand on 30 March 1999 a "First Medical Certificate" was issued by Dr M Dawson at Broome on 2 April 1999 and a "Progress/Fitness Medical Certificate was issued by Dr J Troy at Fremantle on 6 April 1999 (see paragraphs 8 and 9 above). Further progress medical certificates were issued by Dr Troy on 5 May 1999 and 5 July 1999. Meanwhile, on 6 May 1999 Dr Troy (the applicant's treating general practitioner) reported:
"This man has three problems that have become more and more troublesome over the past twelve months. In the first instant (sic) he has had increasing sensitivity to his skin from exposure to sunlight. Secondly he continues to have pain in his injured right upper limb and limitation of power in that part. Finally he has become much more labile emotionally and has increased difficulty living in the confined quarters associated with shipboard life.
I consider he is now unfit for life at sea and this situation is permanent."
On 18 May 1999 Dr D Williams, Orthopaedic Surgeon, reported on the applicant as follows:
"I recently reviewed this 34 year old patient on 25th February 1999.
He works as a merchant seaman with Northwest (sic) Shipping with container shipping.
He presents particularly with problems in his right arm and right hand.
He has numbness along the ulnar border of the hand and it has been present now significantly for one year.
There has been no recent specific injury.
The problem comes on with the use of tools and he finds this onset occurring with the activity of chipping paint in particular.
His problems in the right upper limb go back to May 1988 when he had a crushing injury to his right hand.
The hand was crushed on a container vessel as a hatch was being closed.
The injury occurred in Melbourne and he was hospitalised and managed there for some two weeks.
His problems included fractures in the hand and he had stabilising pins and infection occurred in the post injury period and he had skin grafting in management.
He has areas of skin graft in the palm that had no sensitivity.
He has contracture of the little and ring finger rays and the middle finger rays.
He has tightness in the thumb index web.
He had further injury in 1987 when his right elbow had a crushing injury. This case was settled with the pay out and the injury occurred when he was on leave with a fall in 1987.
The fracture apparently was a fracture dislocation with some three segments and there were some five pins in internal fixation.
He has had a further injury to his right wrist I understand in 1981.
As well as his hand and elbow problems he has pain in the right shoulder.
While he has got ongoing problems he doesn't feel surgery is a requirement at this time.
At clinical review on 4th March 1999 his right shoulder had a good range of motion with some crepitus on motion.
His right elbow showed full extension and good flexion arc with a little cut off at the extreme compared to the left elbow range.
His right wrist had a good extension arc of some 45º and flexion was some 10º less than the arc in the left hand of some 60º.
Supination was cut off at the extreme of the range.
One noted the skin graft area in the volar aspect of the palm of the wrist.
He had wasting in the hypothena eminence area in the right hand.
His little finger lacked full extension by 60º at the MP joint area.
In follow-up review he noted his complaints were of pain in the right upper limb. He has recently had some four weeks off prescribed by his General Practitioner, Dr Troy.
With his functional limitations he has felt harassed by his employer, the Northwest (sic) Shipping Group. He feels there has been attacks on his character. He has a fear of heights and when he is using the chipping guns he has fear because he is not confident in his ability to grip with his right hand and he feels a danger of falling.
He feels overall, a change of work area is appropriate as he is not confident in carrying out the tasks of a merchant seaman with the lack of strength in the right upper limb and the pain and deficiencies generally with the contractures and stiffness.
Attempting to cope with the work has now led to a situation where he is having pressures put on him and a psychological response where he feels he can't handle it currently.
His fitness is a partial disablement in terms of general work capacities, but I don't believe he has a capacity to return to his merchant seaman's activities for the medium to long term.
He will have work capacities in the future that he will have to evolve minimising the stresses on this right upper limb.
I don't believe that his present physical limitations will allow him to meet the high standards that are required with regard to functional capabilities and work capabilities for a merchant seaman.
I arranged for him to have a hand assessment on the 8th April 1999.
A thorough hand assessment showed loss of MP joint extension, particularly in the little finger in the right hand and mild wasting of the hypothena eminence and abductor pollicis.
There was no active finger abduction or abduction to command and opposition to the index finger and middle finger and ring finger movement was slow and deliberate to command.
There were skin grafts central to the heal of the hand and a scar in the first web space.
Overall, the range of motion showed composite flexion of all fingers to the distal palm crease with loss of extension in the MP range.
The wrist showed limited flexion with pain at the end range. There was slight limitation in the end range of forearm supination.
In the shoulder there was discomfort at end range of internal and external rotation, but there was full reach above his head into his back.
There was altered sensation and feeling on the ulnar side of the hand and intermittent electric shooting sensation through the palm and on most nights he reported numbness in the hand.
He stated there was a constant ache in the wrist and dorsally in the web space between the first and second MP joint areas. He reported that this pain increased with activity and he noted that the pain varied from day to day.
In terms of strength, gross grip in the right hand was 12 kilograms and it was the dominant hand and it was 31 kilograms in the left hand.
He had reduced lateral pinch and three point pinch. Overall, the grip strengths fell below the 10% for age range.
The therapist noted a degree of agitation and disturbance of co-operation during the testing procedure and he had a focus on his right hand disability and stated it was causing depression, so clearly significant psychological factors are emerging here. He insisted that it was documented that his right hand affected his personal and sexual relationships and he has given up sport.
His grip strength testing, while showing decreases, was inconsistent so again there is quite a reaction here currently with the stresses of deciding his work future.
…".

Dr Williams then concluded his report by referring to the radiology report dated 25 February 1999 (see paragraph 40 above).

On 18 May 1999 Dr P Martin, Medical Inspector of Seamen, surveyed the applicant's medical condition as follows:
"1.       Heart Disease or Condition
The applicant describes intermittent chest pain which has been present over the past 6 months. He describes this as 'stabbing' and lasting for periods between 30 seconds and 3 minutes. It is localised to the left lateral chest region and is not associated with any other symptoms. He attributes this to stressful situations.
Comment: He has not attended for any specific investigation or treatment.
2.       Shortness of Breath
Mr Nicholas reports previous exposure to asbestos '1993 on the MV Balder – when working in proximity to winch brakes he suspected of containing asbestos fibre'. Direct enquiry confirms that he is a heavy smoker and has been so since the age of 24 years.
Comment: There is objective evidence of significantly reduced lung function.
3.       Dizziness
This symptom has been present for 3 years and has increased in severity over the past 6 months.
Comment: He relates this to physical exertion and associated breathlessness.
4.       Indigestion
He experiences intermittent retro-sternal chest discomfort every 3 to 4 months. The symptoms have been present for over 10 years and are relieved by anti-acid medication.
5.        Hearing Loss
The patient states that he has observed a deterioration in his hearing following noise exposure in 1994.
Comment: Serial Pure Tone Discreet Frequency Audiograms have confirmed the presence of only a very minimal bilateral high tone hearing loss, slightly more marked on the left.
6/7.     Nervous Condition
The patient states that he has been experiencing severe and increasing anxiety which is related to both occupational situations and domestic problems, including meeting mortgage payments.
Comment: He states that these symptoms primarily followed injuries to his right arm and hand which have imposed a disability that has now progressed to a level which is incompatible with him meeting current work demands. He has undergone an assessment by Mr W Douglas, Clinical Psychologist.
8.       Neck and Back Pain
The applicant describes chronic cervical and lower lumbar back pain. In addition he also reports bilateral shoulder pain, more marked on the right. He considers his spinal pain is aggravated by physical activity and is limiting to his work capacity.
Comment: No medical opinions or investigation results were presented at the time of the examination.
9.       Right Upper Limb Pain
The patient describes injuries to the right wrist (1981), right elbow (1987) and right hand (1988). This latter injury has resulted in a significant functional impairment involving the right hand. He has a hypersensitive skin graft and limited movement with respect to the elbow, wrist and hand, together with sensory impairment over the hand which predisposes this to further injury. He also complains of constant pain involving the right forearm and hand, associated with 'electric shocks'.
Comment: He has a significant reduction in grip strength which precludes satisfactory use of tools (rust removing pin guns) and utility objects (mops, brushes etc). The functional impairment in the right hand causes difficulties with climbing ladders and because of the arm weakness and sensory impairment in the hand, imposes an unacceptable workplace risk. A detailed assessment has been provided by Mr D Williams, Orthopaedic Surgeon.
10/11 Solar Exposure
The worker has a documented history of solar exposure. Current Specialist opinion (Dr Z Gaspar, Dermatologist) has been expressed that he requires re-surfacing of the lower lip. Furthermore, he has multiple 'skin cancers' which have been removed from the trunk.
Comment: The applicant states he 'cannot afford surgery at this time'.
12.      Other Medical Conditions
In addition to the spinal pain, the worker complains of pain in both shoulders.
Comment: There is objective evidence of degenerative change involving the right shoulder rotator cuff structures (Mr D Williams).
13.      Medications
At the time of this examination, the applicant was taking the medication Serepax. This is a tranquilliser and as such, is incompatible with the duties required of his rank/rating."

On the same date Dr Martin certified that the applicant was not medically fit for employment at sea for the following reasons:

"1. Significant chronic adjustment disorder.
2. Chronic pain and functional impairment (R) upper limb.
3. Spinal degenerative changes.
4. Solar skin damage."

On 24 June 1999 Dr K Somers, Consultant Physician, Medical Referee to the Seafarers' Retirement Fund, prepared a report on the applicant for the purpose of assisting the Trustee of the Fund to determine the applicant's entitlement to disablement benefit under the rules of the Fund. After setting out the applicant's history and the findings on his examination of the applicant – the only "findings of note", he commented, being in relation to the applicant's right upper limb and lumbar spine – he stated the following conclusion:
"There is no doubt from the reports made available to me and from my own findings that he is unfit for work at sea on account of the permanent state of damage to his right hand, the dominant hand. His other problems of sensitivity of his skin to sunlight and old injury of the right elbow are of little consequence and his lumbar pain does not appear to restrict his activities. In any event, he has not needed any recourse to nonsteroidal analgesic agents since 1992.
…
…I am of the opinion that his physical and mental condition is such that he is never likely to be capable of working again in the Maritime Industry but that he is capable of working again in some other industry, subject to his post-traumatic personality disorder and ability to train in work-skills that he can manage within his physical limitations.
My codicil to the latter part of the previous statement is that a decision regarding his ability of working again in any other industry can only be determined by referral to an approved rehabilitation service with the specific aim of determining his capacity, both mental and physical, for a return to work that does not involve manual dexterity. I am aware that any assessor of rehabilitation will be confronted by immense challenge posed by the member's state of unmotivation. It would be tragic for a person of the member's young age not to be able to return to the work-force.
…". (original emphasis)

A Vocational Assessment Report was subsequently prepared by Ms K Campfield, Rehabilitation Consultant, on 8 July 1999, which concluded as follows:

"Given Mr Nicholas' age, limited schooling, very physically orientated employment history, lack of aptitude, lack of vocational interests in any occupations, and his physical condition we believe that Mr Nicholas will find it difficult to explore alternative vocational options.
Mr Nicholas failed to participate in the assessment, which makes it impossible to comment on alternative vocational options that are open to Mr Nicholas. Usually work options can be identified for workers, even with a chronic injury that is limiting, however Mr Nicholas was not prepared to give the assessment a chance or to cooperate in any capacity."

Having considered that report Dr Somers prepared a further brief report dated 15 July 1999 in which he expressed agreement with Ms Campfield's conclusion and added:

"It is with extreme reluctance that I find myself having to state that his physical and mental condition that he is such (sic) that he is never likely to be capable of working again in the Maritime or any other industry, a situation which I envisaged in my earlier report of 24 June 1999 but hoped might not be so proven."
(original emphasis)

Dr D Williams, Orthopaedic Surgeon, prepared a further report, dated 28 August 2000, addressed to the applicant, which stated as follows:
"Further to your recent clinical reviews and correspondence of 24 August 2000, I previously prepared a report of 24 November 1995 directed to Dr P M Martin, Commonwealth Medical Inspector of Seamen, Australian Maritime Safety Authority. I further prepared a report of 18 May 1999 directed to 'whom it may concern'.
I have noted your history of work as a merchant seaman and your presentation with right arm and right hand problems.
There was numbness along the ulnar border of the right hand.
I have noted your history of the problems going back to May 1988 when you injured your right upper limb with a crush injury to the right hand and the crush occurred on a container vessel as a hatch was being closed.
The crush injury to the right hand included fractures and skin damage and soft tissue damage generally and the management included stabilisation with pins.
The post-operative management was complicated by infection.
The features were of contracture in the right ring, little and middle fingers lacking full extension and tightness in the thumb-index web space.
The problems in the hand are ongoing and you have had a recent hand assessment from an occupational therapist.
You documented a further injury in 1987 when your right elbow was crushed and fractures involving the right elbow following a fall and the injury included fracture dislocation and a need for stabilisation with internal fixation.
At presentation you have right hand and right elbow and right shoulder problems.
With reference to recent reviews 18 July 2000, 17 August 2000 and again on 23 August 2000:
I reviewed this 35 year old right handed patient in follow-up on 17 August 2000 and noted his right wrist had flexion to 45 degrees and extension of 60 degrees, maintaining a reasonable range and with pronation and supination there was cut off at the extreme of the range.
The right MP joints have restriction in extension with the middle finger lacking extension by 10 degrees and the ring finger lacking extension by 30 degrees and the little finger lacking extension by 40 degrees.
The thumb can reach the index, middle and ring fingers but not the little finger.
The right elbow lacks flexion arc by a few degrees compared to the left elbow range. Extension shows a good arc of motion in the right elbow.
Pronation shows just a little cut off.
I arranged current plain x-rays to evaluate the hand and wrist and right elbow and these were carried out on 17 August 2000.
In the right hand there is a healed fracture of the mid shaft of the 5th metacarpal and an un-united ulnar styloid process fracture. Bone density is normal and there is no other evidence of degenerative or erosive arthropathy.
An x-ray of the right elbow shows no evidence of joint effusion and the periarticular bone density is normal. There is a little irregularity of the inferior aspect of the articular surface of the capitulum. There is no significant sclerosis or evidence of subarticular fracture in association with the capitular area.
The appearances reflect the previous trauma.
A CT scan of the right elbow of 23 August 2000 shows a healed fracture of the lateral epicondylar area of the humerus with a small defect on the cortical surface of the capitulum indicating where the fracture line met the articular surface. There is slight irregularity present in this area of the capitulum. There is slight narrowing of the lateral joint space with osteophytic lipping of the margins. There is a small loose body lying between the medial and lateral compartments and there is a further small loose body in the posterior aspect of the lateral joint line.
Minor narrowing and osteophytic lipping of the olecranon margins and proximal radio-ulnar joints are seen.
There was an aggravation of right upper limb symptoms on 30 March 1999 when climbing up a straight ladder with a pot of paint and also when using a chipping hammer over several days of activity.
I arranged the independent hand assessment and this was carried out on 19 July 2000.
His pain symptoms were noted in the right hand and it was noted there was ache that was constant and there was hyper-sensitivity to touch pressure on the skin grafted areas across the palm.
It is noted he avoids placing objects in the palmar area or grasping objects that are likely to touch the skin graft area.
They noted numbness in the middle, ring and little fingers with altered sensation that is present constantly.
He lacks active extension particularly in the MP joint and PIP joints of all the fingers with significant deformity present at the MP joint of the little finger. There are minor deficits in flexion and this relates particularly to the deficit in flexion at the distal interphalangeal joint of the index finger and the distal interphalangeal joint of the little finger.
The elbow ranges were recorded and it was noted there was a difference of some 7-10 degrees in flexion of the right elbow compared to the left.
The span of the hand and fingers is reduced.
Sensibility was difficult to evaluate as the patient was agitated during the test situation but overall there is a loss of sensation with diminished light touch over the ulnar aspect of the hand on both the volar and dorsal aspect involving the little and ring fingers and the ulnar aspect of the middle finger reflecting a deficit in ulnar nerve distribution of the hand so there is diminished protective sensation in these areas.
With regards to pinch strength, the findings in the left non-injured hand had a normal physiological profile and in the right hand there appears to be weakness of the ulnar innervated adductor pollicus and flexor pollicus brevis muscles.
Gross grip strengths show reduction in strength in the right hand.
In my report of 18 May 1999 I noted his fitness is a partial disablement in terms of general work capacities but he lacked the capacity to return to a merchant seaman's activities for the medium to long term.
With regard to his future work capacities it will wisely involve minimising the stresses on the right upper limb and therefore he wouldn't reach the high standards required with regard to functional capacities and work capacities for a merchant seaman.
The patient wants to clarify that the aggravation of 30 March 1999 with the chipping hammer use and the climbing incident with a straight ladder and a pot of paint and having to take his weight awkwardly were significant factors in exacerbating his symptoms.
…".

The Evidence of Dr F Bell

Dr F Bell, Orthopaedic Surgeon, was called as a witness by the respondent. Dr Bell confirmed that he had examined the applicant on 10 July 2000 and he had subsequently prepared 3 reports dated 21 July 2000, 9 November 2000 and 21 December 2000.
In his report of 21 July 2000 Dr Bell noted that he had seen the applicant on 10 July 2000 and recorded the history as given to him by the applicant, including a reference to the right hand crush injury in 1988 and the following statement:
"He said there had been various other minor incidents at sea causing aggravation of his limb in the form of spasms, aggravation of his pain particularly when using a chipping hammer. He found that his wrist gave way when he was climbing a ladder when he said he was fortunate not to have fallen off and either been badly injured or killed."

He then recorded his findings on examination including the following findings in relation to the applicant's right hand:

"The Right Hand – the colour of the hand was normal. I note that there was some degree of flexor contraction of his thumb as the result of scarring in the web space. There appeared to be some loss of substance of the adductor musculature usually palpable in the web and compared with the left.
He had full and quite powerful extension of his thumb comparable to the opposite side and flexed it through a good range, could oppose it to all his fingers but did have some weakness of his pinch between the thumb pulp, index and middle fingers. There was also a contracture of the 5th finger at the metacarpophalangeal joint as the result of some scarring there but he was able to achieve full extension of the proximal and distal interphalanageal joints.
I found his other fingers specifically index, middle and the ring fingers to be fully extendable at the metacarpophalangeal joint and all other interphalangeal joints to be normal. Furthermore he had active abduction and adduction of the fingers through about a half of normal range compared with the left hand.
He was able to make a fist with good wraparound of all fingers including the 5th and could oppose his thumb across those flexed fingers without problem.
He appeared to have some deficiency in his grip and when measured with a simple dynamometer the left hand had a grip of 33 kilograms, the right of some 13 kilograms though I felt that his performance particularly on the third grip was less than maximal.
On testing the sensation of both hands he declared that there was slight numbness of all fingers of the right hand.
The health of his nails on all these fingers was normal. In particular I could find no stigmata of rheumatoid arthritis in the right hand, the left or any other joints.
…".

He then expressed the following opinion:

"Opinion – although I accept this man has some weakness of his grip in the right hand and perhaps slight diminution of his span between little finger and thumb his function I think is good.
I do not believe the elbow minor pathology is sufficient to account for significant complaint of pain and I am unable to find any good cause for the pain he declares about his right shoulder.
In short, I cannot find sufficient reason from a physical point of view in his right arm why he could not continue as a seaman if he so wished as he has done for the last 10 years or more and it would seem to me that extraneous factors such as his personality, his financial commitment and his considerable anger at times are good enough reasons for him to be declared unfit. In other words I believe there is a good deal of evidence particularly from the psychological aspect of this case that this man is using his right arm with the various injuries he has had over the years to further his case for Declaration of Unfitness.
…
From a physical point of view I think Nicholas could return to his pre accident occupation as an Integrated Seaman if he was so motivated.
I believe the question of spouse relationship, psychological state and extraneous factors are those which are the reasons for him to be declared disabled.
He is certainly, not in my view disabled from any number of alternative employment in normal life such as a postal employee, courier, sales work, labouring work, handyman, lawnmowing contractor, gardener and so on.
…".

Dr Bell's reports of 9 November 2000 and 21 December 2000 relate to videotapes in which the applicant is seen. Those videotapes were shown during the hearing and were tendered in evidence (Exhibit R1).

In his oral evidence Dr Bell confirmed that he had examined the applicant in July 2000 and that he had prepared the 3 abovementioned reports. He said that he had been an orthopaedic surgeon for 45 years. He added that for the last 7 years he had been engaged solely in medico-legal practice and had not practised surgery as such for the last 10 years.
In response to questions from the Tribunal Dr Bell said that the applicant did not have a "significant" problem with his right hand and that he would assess the impairment of that hand as 2½% (which he described as "negligible"). He added that there was "still some soft tissue injury" to the applicant's right hand.
The Evidence of Dr P Martin
Dr Martin told the Tribunal that he had been a general practitioner for 25 years and for most of that period had been involved in maritime occupational health. He added that since 1986 he has been a Commonwealth Medical Inspector of Seamen whose function is to examine seamen for the purpose of determining their fitness to perform sea duty, pursuant to the Marine Orders (Part 9) under the Navigation Act. He confirmed that, in that capacity, he had seen the applicant and had prepared numerous certificates and reports in relation to the applicant over the period from July 1990 to September 1999.
Dr Martin was referred to a report dated 15 November 1995 in which he stated that he had issued a certificate certifying the applicant's fitness for duty from that date and added:
"Notwithstanding, I believe there is a relatively high probability that the nature of his ongoing employment at sea will result in further incapacitation."

In his oral evidence in response questions from the Tribunal he elaborated as follows:

"In other words, I was saying that the duties which – which Grant was performing at the time, had caused him significant or had caused him to have symptoms and that although these would have appeared to have resolved to a point where had now returned or regained his level of fitness, I was of concern that continuing to go back to performing the same duties would likely cause further symptoms.
…but what duties are you talking about?---Well the duties of an Integrated Rating at sea.
Such as?---Handling cargo, physical, you know, lifting tasks, operating maintenance equipment such as chipping hammers and mechanical hammers, vibrating tools and use of ropes were likely to cause an increase in symptoms. So that's not to say that this is likely to result in any permanent, you know, injury or disability. But from the symptoms which were described to me previously, I came to the conclusion that there was a situation or aggravation as far as symptoms were concerned and I was endeavouring to point out to Total Marine Services [the applicant's then employer] that they may need to evaluate which, if any, or what duties were likely to be aggravating and endeavour, you know – for instance, if you have a hand injury it may be appropriate to wear a protective glove. And if that's the case then perhaps the employer should ensure that same is available."
(Transcript, p 364)

Dr Martin was referred to a report dated 29 December 1997 in which he expressed the view that the applicant was suffering from "situational anxiety/adjustment disorder". He explained that "situational anxiety is essentially an increased emotional arousal which occurs in a situation and ought disappear when removed from that situation". In the abovementioned report Dr Martin went on to state, however, that he believed that the applicant was "currently fit to undertake the duties of a seaman". Asked by the Tribunal whether he was there referring to both the applicant's physical and mental fitness, Dr Martin responded:
"I believed, at that stage, that – that Mr Nicholas was essentially being able – was able to perform the duties of his rank or rating, however circumstances which had arisen in the workplace had resulted in the situational anxiety – had resulted in situational anxiety and that he ought have been fit, particularly if one could have resolved the situational anxiety, to continue on working. That is, the reason for him being unfit was that of his situational anxiety rather than relating to his other physical conditions."
(Transcript, pp 369-370)

Dr Martin said that on that occasion he did not examine the applicant's right hand because the applicant had presented with "mental stress" and reported that there had been no significant change in the condition of his right upper limb. Dr Martin agreed, however, that the effect of his abovementioned report was that the applicant was fit to serve on board the MV "Sina" (which service commenced in January 1998).

Dr Martin was next taken to a Certificate of Medical Fitness issued by him on 18 May 1999 in which he certified that the applicant was not medically fit for employment at sea by reason of:
"1. Significant chronic adjustment disorder.
2. Chronic pain and functional impairment (R) upper limb.
3. Spinal degenerative changes.
4. Solar skin damage."

He acknowledged that that was the first certificate that he had issued to the effect that the applicant was not medically fit for employment at sea. Dr Martin was referred by the Tribunal to the following comment made by him in his report dated 18 May 1999:

"The functional impairment in the right hand causes difficulties with climbing ladders and because of the arm weakness and sensory impairment in the hand, imposes an unacceptable workplace risk."

The Issue

The issue in this case is whether the respondent is liable, pursuant to ss 24, 25 and 26 of the Act, to pay compensation to the applicant in accordance with the Act in respect of his alleged right hand condition and/or his mental condition. There is no dispute, for the purposes of determining that issue, that, at all relevant times, the applicant was a "seafarer" and an "employee", and the respondent was an "employer", within the meaning of the Act.
Consideration and Findings
The Tribunal will now consider the relevant material before it and, on the basis of that material, make the necessary findings, first in relation to the applicant's right hand and, secondly, in relation to his mental state.
Right Hand
It is an undisputed fact that the applicant sustained a serious crush injury to his right hand on 31 May 1988, and subsequently aggravated that injury on 4 November 1995 and 10 May 1996, resulting in impairment of that hand. Accordingly, when the applicant commenced employment with the respondent on 21 January 1998, his right hand was already functionally impaired by reason of that pre-existing injury and those subsequent aggravations thereof. The question is, however, whether the applicant sustained a further "injury" (as defined in s 3 of the Act) to his right hand while employed by the respondent on board the MV "Sina", and, if so, whether such injury resulted in his incapacity for work, or impairment.
The applicant's claim for compensation in this matter specifically referred to an incident involving his climbing a ladder on board the MV "Sina" on 30 March 1999 when the alleged injury to his right hand was said to have occurred. In his oral evidence the applicant said that, during the week immediately prior to the abovementioned incident, he had, in the course of his normal work duties on board the MV "Sina", used a chipping gun which caused his hand to ache to such an extent that he thereafter had to rest his hand on a pillow when he went to sleep. As regards the abovementioned incident itself, the applicant elaborated that, as he climbed the ladder, he "must have bumped" the ulnar nerve in his right hand resulting in a pain sensation like a "sharp electric shock" which lasted about five minutes, following which he was unable to grip the ladder properly and was afraid that he might fall.
The Tribunal accepts the applicant's evidence regarding the use of the chipping gun and finds that his using the chipping gun in the course of his duties on board the MV "Sina" caused him to suffer increased pain in his right hand. The Tribunal notes that, as from 2 April 1999, medical certificates were issued, first by Dr Dawson and subsequently by Dr Troy, certifying that the applicant was totally unfit for work by reason of right upper limb pain and occupational stress. The Tribunal also notes the subsequent medical reports of Drs Martin, Williams and Somers. In the Tribunal's opinion that medical evidence supports the proposition that the applicant, at least from 2 April 1999, suffered chronic pain in his right hand to such an extent that it resulted in a functional impairment of that hand which of itself was sufficient to render him medically unfit for employment at sea – whereas for some years prior to that time he had, notwithstanding his then existing right hand condition, been consistently certified as medically fit for employment at sea. In particular the Tribunal places great weight on the medical reports of Dr Martin (who, in his capacity as Medical Inspector of Seamen, had examined the applicant on numerous occasions between July 1990 and September 1999 and prepared numerous medical reports on his condition), Dr Williams and Dr Somers (see paragraphs 42-45 above). The Tribunal also notes that Dr Martin, in his oral evidence, confirmed that on 29 December 1997 he had certified the applicant as medically fit for employment at sea (shortly before he commenced employment on board the MV "Sina"), but that on 18 May 1999 (following his discharge from the MV "Sina" on 2 March 1999 on the ground of "illness") he had, for the first time, certified him as medically unfit for employment at sea and that the applicant's right hand condition itself, by reason of increased pain symptoms therein, now constituted an "unacceptable workplace risk" (see paragraph 53 above).
On the basis of the applicant's evidence and the abovementioned medical evidence, the Tribunal finds that the applicant, by reason of his use of a chipping gun in the normal course of his duties on board the MV "Sina", in particular during the week prior to 30 March 1999, aggravated the pre-existing symptomatic condition of his right hand resulting from the May 1988 crush injury, and thereby suffered an "injury" within the meaning of the Act.
Although the applicant claimed that he also suffered an aggravation of his right hand condition by "bumping" the ulnar nerve in his hand as he climbed a ladder on 30 March 1999 on board the MV "Sina", the Tribunal has reservations regarding that aspect of the applicant's evidence given the lack of any reference to such specific event in the contemporaneous documentary material or, indeed, in the subsequent medical reports, and the Tribunal makes no finding in relation to that particular matter. In any event, given the Tribunal's abovementioned finding, it is not necessary for it also to make a finding in relation to that matter.
The next question which arises is whether the abovementioned "injury", found by the Tribunal to have been suffered by the applicant by reason of his employment on board the MV "Sina", resulted in "incapacity for work, or impairment", within the meaning of s 26(1) of the Act. The expressions "incapacity for work", and "impairment", are defined in, respectively, s 8 and s 3 of the Act.
According to the applicant's evidence, because of the pain in his right hand and arm following the incident on board the MV "Sina" in March 1999, he has since been unable to use a chipping hammer (or chipping gun) "on a repeating basis". As regards the medical evidence, whereas the applicant was certified by Dr Martin as medically fit for employment at sea shortly before he commenced employment on the MV "Sina", he was certified by Dr Martin as medically unfit for employment at sea on 18 May 1999 (shortly after his discharge from the MV "Sina" on 2 April 1999), it being noted by Dr Martin that his right hand condition at that date of itself rendered him unfit for employment at sea. A similar view was expressed by Dr Williams in his reports of 18 May 1999 and 28 August 2000 and by Dr Somers in his report of 24 June 1999. The only medical opinion which is at odds with the abovementioned opinions is that of Dr F Bell who opined that the applicant's right hand condition did not constitute a "significant" problem (although he did concede that the applicant does have an impairment of his right hand of up to 2½%) and that that condition itself did not render him unfit for employment at sea. The Tribunal notes that whereas the applicant was examined on various occasions by the other abovementioned doctors (in particular, by Dr Martin who examined him on numerous occasions between 1990 and 1999 and who, as a Commonwealth Medical Inspector of Seamen since 1986, has had extensive experience in assessing the medical fitness of persons for employment at sea), he was examined only once by Dr F Bell (who, according to his own evidence, has not practised surgery for the last 10 years) for the present medico-legal purpose. In these circumstances Dr Bell's opinion should not, in the Tribunal's judgment, be given as much weight as the other abovementioned contrary medical opinions. Having regard to those opinions – specifically, the opinions of Drs Martin, Williams and Somers – and also to the medical certificates issued by Dr Dawson and Dr Troy to the effect that the applicant was rendered totally unfit for work from 2 April 1999 by reason of chronic right upper limb pain (together with occupational stress), the Tribunal finds that, whereas the applicant was medically fit for employment at sea prior to the "injury" he suffered to his right hand in March 1999 on board the MV "Sina", he was, as a result of that injury, rendered medically unfit for employment at sea. Accordingly, the Tribunal finds that, as a result of that "injury",he suffered an incapacity to engage in (at least) work as a seafarer (employee) at the same level at which he was engaged immediately before that injury happened. The Tribunal finds, therefore, that the right hand "injury" suffered by the applicant on board the MV "Sina" in March 1999 resulted in an "incapacity for work" (as defined in s 8(b) of the Act) within the meaning of s 26(1) of the Act.
Accordingly, the Tribunal finds that, pursuant to s 26(1) of the Act, compensation is payable to the applicant in accordance with the Act in respect of the "injury" to his right hand (being an "aggravation" of a pre-existing symptomatic condition of his right hand) which he suffered while performing his employment duties on board the MV "Sina" in March 1999. It follows, by reason of ss 24 and 25 of the Act, that the respondent is liable to pay such compensation to the applicant.
The Tribunal notes a submission by the respondent that, by reason of s 58(4) of the Act, the applicant is not entitled to compensation under the Act in respect of his right hand condition because of the (undisputed) fact that he had previously (on 1 September 1994) recovered damages in respect of the crush injury he suffered to his right hand on 31 May 1988. The short answer to that submission is that the "injury" in respect of which the applicant is, according to the Tribunal's above finding, entitled to compensation under the Act is not the right hand crush injury he suffered on 31 May 1988, but, instead, the aggravation of the pre-existing symptomatic condition of his right hand which he suffered on board the MV "Sina" in March 1999. That submission is, accordingly, rejected.
Mental State
According to the applicant's evidence, the circumstances which caused him to suffer stress during the period of his employment with the respondent were:

an incident while he was on long service leave in late August 1998 when, during a social visit to his home by Paul Woollams (the son of the General Manager of the respondent), he was informed by Paul Woollams that another man had been employed in a permanent capacity in his position on the MV "Sina";
two incidents when Cleve Woollams, General Manager of the respondent, allegedly yelled at him in the office in front of office staff that he was "lazy" and had a "bad attitude";
his period of service on the MV "Sina" after the abovementioned long service leave incident during which he felt that his work ethic and attitude were constantly being criticised, in particular by the Chief Engineer, including an incident in November 1998 when he was called to a meeting with the Captain and the Chief Engineer during which he was allegedly "threatened" with being charged with a breach of the Code of Conduct and after which his request for a copy of the Captain's log book entry regarding that meeting was refused by the Captain.

The Tribunal notes the applicant's evidence that he did not at the time consult a doctor for stress arising out of the abovementioned incidents and that, accordingly, there is no contemporaneous medical evidence that the applicant suffered from stress or any other mental condition during that period.
There is, however, medical evidence that the applicant was suffering from "occupational stress" as at 2 April 1999 and that he was continuing to suffer from "occupational stress" as at 2 August 1999 (see the First Medical Certificate issued by Dr Dawson on 2 April 1999 and the subsequent Progress Medical Certificates issued by Dr Troy on 6 April 1999, 5 May 1999, 5 July 1999 and 2 August 1999). The Tribunal notes that in the lastmentioned Progress Medical Certificate Dr Troy certified that the applicant was, by reason of "occupational stress", totally unfit for work until 30 August 1999. In the meantime the applicant had been referred by Dr Troy to Dr W Douglas, Clinical Psychologist, who, in a report dated 27 April 1999, expressed the (provisional) opinion that the applicant was "suffering from the effects of an Adjustment Disorder" arising from "a combination of his chronic pain state [in his right arm and hand] and his uncertain working future". On 18 May 1999 Dr Martin certified that the applicant was not medically fit for employment at sea by reason of certain physical conditions, and also "significant chronic adjustment disorder". Similarly, on 24 June 1999 Dr Somers made various physical diagnoses, and also a mental diagnosis of "post-traumatic personality disorder", in relation to the applicant.
There is, in addition, a body of expert psychiatric opinion evidence before the Tribunal – namely, the report and oral evidence of Dr Mustac, and the reports of Drs Febbo, A Bell, and Terace. There is, however, some disagreement amongst that evidence:

Dr Mustac, who examined the applicant on 23 August 1999, opined that he was not suffering from a depressive illness or any mental illness;
Dr Febbo, who examined the applicant on 13 September 1999, was unable to find "adequate evidence suggesting incapacity because of a psychiatric disorder";
Dr A Bell, in a report dated 7 March 2000, opined that the applicant was suffering from a depressive illness and that it was likely that this condition was precipitated by "the manner of [his] attempted replacement on the MV Sina" which "constituted a major psychological blow to his self esteem";
Dr Terace, who examined the applicant on 5 December 2001, opined that, on the basis of the history given to him by the applicant, while serving on board the MV "Sina" the applicant perceived that he was threatened by another crew member and, by reason of that perception, probably met the criteria for an "acute and recognisable psychiatric condition" – namely, "Adjustment disorder/disturbance" – at that time, but that he did not presently meet the criteria for a "recognisable psychiatric condition". Dr Terace went on to say that "adjustment disorders by their nature are temporary conditions, and do resolve". Dr Terace, however, stated by way of conclusion that it was "possible, if not likely, that the [applicant] met criteria for an adjustment disorder or depressive disturbance in the past". (emphasis added)

On the basis of the whole of the medical evidence the Tribunal finds that the applicant while serving on board the MV "Sina", probably in November 1998 (at the time of the incident involving the Chief Engineer and the Captain, referred to in paragraph 80 above) developed a mental ailment, namely, an "adjustment disorder", which was contributed to in a material degree by his employment, or which arose in the course of his employment, and that he was continuing to suffer from that mental ailment when he was discharged from the MV "Sina" on 2 April 1999, when he saw Dr Douglas on 27 April 1999, and when he was certified by Dr Martin as not medically fit for employment at sea by reason of, inter alia, "significant chronic adjustment disorder" on 18 May 1999. The Tribunal also finds, however, that the applicant was no longer suffering from that mental ailment (namely, adjustment disorder), and was not suffering from any other mental ailment, as at 23 August 1999 (when he was examined by Dr Mustac) or subsequently. The Tribunal bases that finding on the opinions of Drs Mustac, Febbo and Terace. The Tribunal notes the contrary opinion of Dr A Bell that the applicant was suffering from a depressive illness when he was examined by her on 7 March 2000, which she opined had probably been precipitated by "the manner of [his] attempted replacement on the MV Sina". The Tribunal, however, prefers to base its finding on the preponderance of the specialist psychiatric opinion – namely, that of Drs Mustac, Febbo and Terace – which is clearly to the effect that the applicant is not suffering from any psychiatric disorder. The Tribunal also accepts Dr Terace's comments on Dr Bell's opinion (see paragraph 64 above) and his opinion that the feelings of "demoralisation, frustration and anger" which the applicant has experienced, and continues to experience, as a result of his employment with the respondent fall "within the bounds of normal mental function and normal human experience" and do not constitute a mental illness or a psychiatric disorder. The Tribunal accepts the applicant's evidence that he suffered stress in connection with his employment by the respondent but finds, on the whole of the medical evidence, that such stress alone was also within the bounds of "normal mental functioning and behaviour" and did not constitute a psychological or psychiatric disorder. Accordingly, the Tribunal finds that the abovementioned feelings of "demoralisation, frustration and anger", together with the stress, experienced by the applicant do not constitute an "injury" within the meaning of the Act and are therefore not compensable under the Act: see Comcare v Mooi (1996) 69 FCR 439 at 444-447.
On the other hand, the Tribunal finds that the abovementioned "adjustment disorder", which the applicant probably developed in November 1998 (see paragraph 84 above) during his employment on board the MV "Sina", and which continued until no later than 23 August 1999 (when Dr Mustac found that he was not suffering from any mental illness – see paragraph 84 above) was contributed to in a material degree by his employment or arose in the course of his employment and, accordingly, did constitute an "injury" within the meaning of the Act. The Tribunal also finds that that "injury" resulted in a mental "impairment" and an "incapacity for work" (in the sense of an "incapacity to engage in work as an employee at the same…level at which he…was engaged immediately before the injury happened" – see s 8(b) of the Act), within the meaning of s 26(1) of the Act, for the duration of that "injury" – that is, up until 23 August 1999. The Tribunal bases the latter finding on, in particular, the reports of Dr Douglas (27 April 1999), Dr Martin (18 May 1999) and Dr Terace (11 December 2001). In the lastmentioned report Dr Terace referred to the applicant's being "temporarily disabled" (as opposed to "totally and permanently disabled") by reason of the psychiatric condition of "adjustment disorder". The Tribunal also notes that "significant chronic adjustment disorder" was one of the grounds on which Dr Martin, on 18 May 1999, certified that the applicant was not medically fit for employment at sea.
Accordingly, the Tribunal finds that, pursuant to s 26(1) of the Act, compensation is payable to the applicant in accordance with the Act in respect of a mental "injury", namely, adjustment disorder, which he suffered in the course of his employment on board the MV "Sina", probably in November 1998. The Tribunal also finds that such compensation is payable to the applicant in respect of that "injury" up until 23 August 1999 (by which date he was no longer suffering from that "injury") but not thereafter. It follows, by reason of ss 24 and 25 of the Act, that the respondent is liable to pay such compensation to the applicant for the abovementioned period only.
Conclusion
The Tribunal concludes, therefore, that:

the respondent is liable, pursuant to ss 24, 25 and 26(1) of the Act, to pay compensation to the applicant in accordance with the Act in respect of an "injury" to his right hand (being an "aggravation" of a pre-existing symptomatic condition of his right hand) which he suffered while performing his employment duties on board the MV "Sina" in March 1999; and
the respondent is liable, pursuant to ss 24, 25 and 26(1) of the Act, to pay compensation to the applicant in accordance with the Act in respect of a mental "injury" (namely, adjustment disorder) which he suffered in November 1998 in the course of his employment on board the MV "Sina", up until 23 August 1999 but not thereafter.

Decision

For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that:

the respondent is liable, pursuant to ss 24, 25 and 26(1) of the Act, to pay compensation to the applicant in accordance with the Act in respect of an "injury" to his right hand (being an "aggravation" of a pre-existing symptomatic condition of his right hand) which he suffered while performing his employment duties on board the MV "Sina" in March 1999; and
the respondent is liable, pursuant to ss 24, 25 and 26(1) of the Act, to pay compensation to the applicant in accordance with the Act in respect of a mental "injury" (namely, adjustment disorder) which he suffered in November 1998 in the course of his employment on board the MV "Sina", up until 23 August 1999 but not thereafter.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Signed:         ..........(V Wong).............................................
  Associate
Date/s of Hearing  20-22 March, 22 May 2002
Date of Decision  13 September 2002
Counsel for the Applicant        In person
Counsel for the Respondent    Mr A Stavrianou
Solicitor for the Respondent    Cocks Macnish