O'Sullivan and P & O Maritime Services Pty Ltd
[2016] AATA 865
•10 October 2016
O'Sullivan and P & O Maritime Service Pty Ltd (Compensation) [2016] AATA 865 (10 October 2016)
Division
GENERAL DIVISION
File Number
2015/0698
Re
Michael O'Sullivan
APPLICANT
And
P & O Maritime Service Pty Ltd
RESPONDENT
RULING
Tribunal Mr S. Webb, Member
Date 10 October 2016 Place Perth A telephone directions hearing is to be set down at the earliest convenient date once 14 days have elapsed from the date of this ruling.
........................................................................
Mr S. Webb, Member
CATCHWORDS
SEAFARER COMPENSATION – previous accepted injury – compensation paid by previous employer - termination of employment - fresh injury in the form of an ‘aggravation’ – employment relationship with previous employer not established
CASES
O’Sullivan v P & O Maritime Services Pty Ltd [2016] FCA 969
REASONS FOR DECISION
Mr S. Webb, Member
10 October 2016
Michael O’Sullivan hurt his back when he slipped on some steps. He lodged a claim for compensation, asserting that P & O Maritime Services Pty Ltd (the Company) is liable. The Company rejected the claim. Mr O’Sullivan requested reconsideration. The decision is deemed to have been affirmed as the Company failed to issue a reconsideration decision within the time allowed. Mr O’Sullivan applied for review by the Tribunal.
The course of the proceedings has been somewhat difficult. The Tribunal directed Mr O’Sullivan to provide certain documents. He failed to comply with the direction and the application was dismissed. Mr O’Sullivan sought judicial review of this decision. Siopsis J upheld the appeal, set aside the Tribunal’s order dismissing the application, and remitted the matter to the Tribunal (differently constituted) to be determined according to law.[1]
[1] O’Sullivan v P & O Maritime Services Pty Ltd [2016] FCA 969
On 12 September 2016, I heard the parties on how the matter should proceed. A threshold issue arose, relating to Mr O’Sullivan’s employment for the purposes of his claim. The parties agreed, sensibly in my view, that it would be desirable for this issue to be dealt with by way of a ruling, before the application proceeded any further.
It is this matter, alone, that I am dealing with presently.
The parties have been given opportunity to place materials and written submissions before each other and the Tribunal, and to be heard orally.
Brief facts
On 16 December 1993, Mr O’Sullivan injured his back in a fall. At the time, he was employed by the Company to work as a Greaser on the vessel the Lady Dawn.
The injury resulted in incapacity for work. He claimed and was paid periodic compensation for incapacity by the Company.
On 17 June 1994, Mr O’Sullivan was removed from Register A under clause 3(r)(v) of Schedule X to the Maritime Industry Seagoing Award 1983.
On 19 December 1994, the Company terminated his employment.
On 16 November 1995, the Company ceased payment of compensation for incapacity.
Mr O’Sullivan pursued a common law claim against the Company without success.
After the periodic payment of compensation ceased, Mr O’Sullivan obtained social security benefits and, from 2000 to 2004, some light work. It appears that in 2006 he returned to employment as a seafarer with full certification. He has cited employment in work of this kind with a number of employers from 2006 to 2011.[2]
[2] T1 folio 21.
On 12 November 2014, Mr O’Sullivan lodged a claim for compensation under the Seafarers Rehabilitation and Compensation Act 1992 (the SRC Act) citing the Company as his employer.[3] He clearly set out the scope of his claim[4] and the circumstances of the alleged injury in the claim form.[5] It can be seen that the alleged injury occurred between 0945am and 1005am on 26 August 2014 “Outside maritime union and maritime mining power credit union building” as Mr O’Sullivan was “Leaving the building after paying union fees and registering for employment and accidently missed the step and jarred my back”.[6] Mr O’Sullivan specified that the nature of the injury under claim is “Lumbrosacral radiculopathy – slipped disc”, affecting “Lower back – left leg”.[7]
[3] T8 folio 39.
[4] Ibid, folio 39.
[5] T8 folios 40 to 42
[6] Ibid, folios 41 and 42.
[7] Ibid, folio 41.
Mr O’Sullivan provided clear information in the claim form about his previous injury in 1993.[8]
[8] Ibid, folio 42.
On 21 November 2014, the Company sought further information from Mr O’Sullivan. He responded on 1 December 2014.
On 8 December 2014, the Company determined to reject Mr O’Sullivan’s claim as “You were not an employee of P&O Maritime at the time of your injury”.[9]
[9] T12.
On 10 December 2014, Mr O’Sullivan requested reconsideration of this determination, stating that he “is unable to resume duties in the Maritime Industry due to injury”.[10]
[10] T13.
The Company obtained a report from Comcare.[11]
[11] T14.
As no reconsideration decision was issued by the Company within the time allowed under s 79 of the SRC Act, the primary determination is deemed to have been affirmed.
Mr O’Sullivan applied for review of this deemed decision.
Issues
The question to be addressed is whether the Company is Mr O’Sullivan’s actual or deemed employer for the purposes of his claim for compensation under the SRC Act in respect of an injury sustained on 26 August 2014.
Employer
Mr O’Sullivan asserts that the Company should be taken to be his employer. This is so, in his submission because, in 1993, he injured his back in the course of employment by the Company and the Company accepted liability to pay him compensation. He argues that s 4(4) of the SRC Act preserves his status as an ‘employee’ even though his employment by the Company came to an end in 1994.
The Company argues that Mr O’Sullivan was not an employee when he hurt his back on 26 August 2014. In the Company’s submission s 4(4) serves to preserves the rights of an injured employee to obtain compensation in respect of an injury that persists after the particular employment has come to an end. This section, the Company argues, does not preserve an employee-employer relationship in respect of a fresh injury after the employment has come to an end.
Compensation is payable under the SRC Act in respect of an ‘injury’ as defined in s 3 –
injury means:
(a) a disease; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include anything suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.
The word ‘aggravation’ is given the following meaning –
aggravation includes acceleration or recurrence.
Section 4 is in the following terms –
4 Employees
(1) In this Act, unless the contrary intention appears:
employee means:
(a) a seafarer; or
(b) a trainee; or
(c) a person (other than a trainee) who, although ordinarily employed or engaged as a seafarer, is not so employed or engaged but is required under an award to attend at a Seafarers Engagement Centre for the purpose of registering availability for employment or engagement on a prescribed ship.
(2) For the purposes of this Act, an industry trainee or a person mentioned in paragraph (c) of the definition of employee is taken to be employed by the Fund until he or she next becomes a seafarer, and his or her employment is taken to be constituted by his or her attendance:
(a) in the case of an industry trainee—at an approved industry training course; and
(b) in the case of a person mentioned in paragraph (c) of the definition of employee—at a Seafarers Engagement Centre for the purpose of registering availability for employment or engagement on a prescribed ship.
(3) If a default event occurs in relation to the employer of a seafarer or of a company trainee, then, for the purposes of this Act, the seafarer or company trainee is taken to be employed by the Fund.
(4) If a provision of this Act applies to an employee after an employer has incurred a liability in relation to the employee under this Act, then, unless the contrary intention appears, a reference in that provision to an employee includes a reference to that person even after he or she ceases to be an employee.
(5) To avoid doubt, a reference in this Act to the employment of an employee is a reference to:
(a) if the employee is a trainee—the employee’s performance of the role of a trainee; or
(b) if the employee is a person of a kind referred to in paragraph (1)(c)—the employee’s performance of the role of a person of that kind.
It is quite clear that this section makes allowance for the variable nature of employment as a seafarer, such that a person within the terms of s 4(1)(c) of the SRC Act would be considered as an ‘employee’ even though the person is not ‘employed’ at the particular time. This can also be seen in s 4(4) of the SRC Act, where express provision is made to extend the meaning of ‘employee’ to include an ‘employee’ whose employment has come to an end in certain circumstances.
When construing this legislation, the language used must be carefully considered in respect of the purposes and policy of the particular provisions. The text is quite clear. It is important to consider the words ‘a provision of this Act applies to an employee after an employer has incurred a liability in relation to the employee under this Act’. For this precondition to be met two things must be established – firstly, the employer must have incurred a liability under the Act in respect of the employee and, secondly, a provision of the Act must apply to the employee thereafter. This will occur only if the employee has sustained an ‘injury’.
The purposes and the policy of the section are also quite clear. The liability of an employer in respect of an injured employee does not come to an end under the SRC Act if the employment relationship comes to an end. Otherwise, an employer might be able to curtail liability for an injury sustained by an employee to the period of his or her employment. This is the mischief the section serves to address.
The interpretation Mr O’Sullivan presses raises another possible construction, however, such that the section would operate to extend the liability of an employer to a former injured employee in respect of a fresh injury arising in circumstances that are unrelated to the previous employment. This requires the words ‘a provision of this Act applies to an employee after an employer has incurred a liability in relation to the employee under this Act’ to be read disjunctively. Reading the section in this way ignores the legislative context in which it sits. And to do so would render the scheme of the SRC Act unworkable – it would severe the essential causal connection that must be established between ‘injury’ and ‘employment’ for the purposes of the defined meaning of ‘injury’ in s 3(1) to which s 9 refers. It is not the purpose or policy of this section to render an employer liable for any claimed injury a former injured employee might sustain without, first, establishing the essential pre-conditioning connection with the relevant employment.
Ruling
Returning to consider the issue I must decide, there are two things to say.
Firstly, it is quite clear, and apparently not controversial, that Mr O’Sullivan was not an employee of the Company when he hurt his back on 26 August 2014. He had not been an employee of the Company since 19 December 1994. Thus, if the compensation claim he lodged on 12 November 2014 is in respect of a fresh ‘injury’ and the available materials do not establish an essential causal connection to his previous employment by the Company, s 4(4) is of no assistance to him and his claim against the Company must fail.
Secondly, if the compensation claim Mr O’Sullivan lodged on 14 November 2014 is in respect of a continuing injury, for which liability has already been accepted by the Company, s 4(4) operates to preserve the Company’s liability for that injury. There is a live question whether Mr O’Sullivan’s claim is capable of such a generous or broad interpretation.
On this point, I will go no further. If the point is pressed, it may be appropriate to hear the parties and then determine the point.
Orders
A telephone directions hearing is to be set down at the earliest convenient date once 14 days have elapsed from the date of this ruling.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ........................................................................
Administrative Assistant
Dated October 2016
Date of interlocutory hearing 7 October 2016 Applicant In person Counsel for the Respondent Mr J Lenzner Solicitor for the Respondent Mr B Buckhurst
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