Pacific Manning Company Pty Ltd v Barton - [2003] FCA 498

FEDERAL COURT OF AUSTRALIA
Pacific Manning Company Pty Ltd v Barton [2003] FCA 498
COMPENSATION – Seafarers Rehabilitation and Compensation Act 1992 (Cth) – application appealing a decision of the Administrative Appeals Tribunal – whether the respondent failed to comply with statutory requirements for notification of injury – whether the Administrative Appeals Tribunal failed to consider the respondent’s capacity for work in suitable employment – whether the Administrative Appeals Tribunal failed to give adequate reasons for its decision – application dismissed.
Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44
Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss3, 6, 10(4), 26, 31, 32, 62
Safety, Rehabilitation and Compensation Act 1988 (Cth) s 19(4)
Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 cited
Esam v ASP Ship Management (1998) 87 FCR 82 cited
Banks v Comcare Australia (unreported, Federal Court of Australia, Kiefel J, 22 May 1996) cited
Comcare v Luck (1999) 29 AAR 403 cited
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 325 applied
Martin v Australian Postal Corporation [2000] FCA 1646 discussed
PACIFIC MANNING COMPANY PTY LTD v MICHAEL BARTON
No S 27 of 2003
von DOUSSA J
ADELAIDE
22 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 27 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

PACIFIC MANNING COMPANY PTY LTD
APPLICANT

AND:

MICHAEL BARTON
RESPONDENT

JUDGE:

von DOUSSA J

DATE OF ORDER:

22 MAY 2003

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.        Application dismissed.
2.        Applicant to pay the respondent’s costs of the application.
Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

S 27 OF 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:

PACIFIC MANNING COMPANY PTY LTD
APPLICANT

AND:

MICHAEL BARTON
RESPONDENT

JUDGE:

von DOUSSA J

DATE:

22 MAY 2003

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

This application is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) against a decision of the Administrative Appeals Tribunal (the Tribunal) which awarded compensation to the respondent, an employee of the applicant, under the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the SRC Act) in respect of claims made by him for a lower back injury and a psychiatric injury. Section 44 provides for an appeal to this Court on a question of law. The questions of law raised by the application concern the procedural requirements of the SRC Act for notification of injury, and alleged failures by the Tribunal to give adequate reasons for its decision.
The applicant, who I shall refer to as the employer, operates a fleet of coastal vessels including the ‘Pacific Conqueror’ in which the respondent was employed as a merchant seaman. The ‘Pacific Conqueror’ is a vessel of approximately 1,600 tonnes with a crew of nine. At relevant times it serviced oil drilling rigs in the Timor Sea with fuel and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FCA 498
Decision Date: 22 MAY 2003

CaseChat Overview and Summary

Pacific Manning Company Pty Ltd has appealed to the court against a decision of the Single Circuit Court of the Federal Court of Australia, which upheld a claim for workers' compensation brought by the respondent, Barton. Barton claimed that he suffered from a lower back injury and psychiatric injury while working as a deck boy for Pacific Manning Company Pty Ltd. The employer contends that the tribunal erred in its application of the SRC Act, failed to provide adequate reasons for its findings of injuries, did not consider evidence of Barton’s capacity for work and suitable employment, and did not provide sufficient reasons for its determination of the permanency of Barton’s impairment.

The central legal issues in this case were whether the tribunal correctly applied the SRC Act in its assessment of Barton’s injuries, and if it adequately justified its findings. Specifically, the court needed to determine if the tribunal erred in its application of s 62 of the SRC Act, in providing reasons for the injuries found, in considering Barton’s capacity for work and suitable employment under s 32(e) of the SRC Act, and in determining the permanency of Barton’s impairment. The tribunal's approach to these issues was scrutinised to see if it was in line with the statutory provisions and if its findings were supported by the evidence.

The court examined the tribunal's reasoning and found that the tribunal correctly applied the SRC Act and provided sufficient reasons for its findings. The tribunal based its determinations on the credible medical evidence presented by Barton's witnesses, Dr. Potter and Dr. Ford. The tribunal's reasons for the assessment of permanent impairment were directly linked to the opinions provided by these experts, which the tribunal accepted. The court held that the tribunal’s findings were not unreasonable and were adequately justified in its reasons. Consequently, the court dismissed the employer’s appeal and ruled that the tribunal's decision should stand.

The court ordered that the application be dismissed and that the applicant, Pacific Manning Company Pty Ltd, pay the respondent's costs of the application. This outcome reflects the court's view that the employer had not successfully demonstrated any legal errors in the tribunal’s decision.

Orders

Orders of the court

1. Application dismissed.

2. Applicant to pay the respondent’s costs of the application.

Background

Background to the litigation

On the hearing of this application senior counsel for the employer confined the application to four alleged errors of law. A further complaint in the application, that the respondent had not made a claim for compensation in the manner required by s 63 of the SRC Act, was abandoned. The four errors of law alleged are:(1)the Tribunal erred in law in its approach to the application of s 62 of the SRC Act. (2)the Tribunal erred in law in failing to give adequate reasons and findings as to the injuries said to have been suffered by the respondent.(3)the Tribunal erred in law in failing to consider and deal with the evidence of capacity for work and in failing to consider suitable employment under s 32(e) of the SRC Act. (4)the Tribunal erred in law in failing to give any or sufficient reasons for its determination of permanency which finding was unreasonable on the evidence.In the formulation of these alleged errors of law, the reference to ‘injury’ is to be understood as a reference both to the lower back injury and the psychiatric injury found by the Tribunal. Background The respondent was born in England on 17 July 1949. He emigrated to Australia with his family in 1958. At the time of the hearing before the Tribunal he was aged fifty-three. He completed grade seven primary school in South Australia but did not undertake any secondary schooling. Due to learning difficulties, he completed primary school at the age of approximately 15 years. Upon finishing his schooling he registered with a ship master and commenced seafaring as a deck boy in 1966, aged 16 years. From then until November 1998 he worked on various vessels including cargo ships, ferries, bulk carriers, tankers, tugs and oil rig supply vessels. He achieved the rank of able seaman. The respondent has not worked since he completed a ‘swing’ on the ‘Pacific Conqueror’ on 18 November 1998. Before the Tribunal he claimed that he had been incapacitated by reason of the two injuries found by the Tribunal. In his evidence the respondent described his injuries as occurring gradually. It is clear that he intended to convey that his degree of suffering and incapacity for work progressed gradually. Relevant to the psychiatric injury, the respondent gave evidence that the ‘Pacific Conqueror’ was a smaller, noisier and less clean vessel than others that he had previously worked on. He said that increasingly with the passage of time in performing his duties on the ‘Pacific Conqueror’ he began to experience anxiety, agitation and a feeling of being confined and isolated. He said his cabin was very small, 2.6 metres long by 2 metres wide with an ensuite that was 2 feet by 3 feet consisting of a shower and a toilet. He normally worked a morning and an evening shift between 8 am and 12 noon, and 8 pm to 12 midnight. Between the morning and evening shifts he was supposed to be resting, however, he said it was impossible to sleep on account of the noise and heat in his cabin. He would generally spend the time in his cabin reading magazines on woodwork and learning to play a keyboard. He spent considerable periods of time just lying on his bed doing nothing. During a ‘rig call’ when the vessel was at a drilling rig he said there was considerable noise from the bow thruster located beneath the accommodation section and from the anchor chain and winch immediately outside his cabin. He said the airconditioning would break down at least once in a five week swing, usually for an hour or two. If this happened when he was sleeping, his cabin became very hot and humid. The heat aggravated a psoriasis condition from which he suffered. He was also disturbed by a general fire alarm which would sound about twice per swing, being set off by the heat. He was also disturbed by noise caused by routine maintenance work by other members of the crew carrying out hammering and chipping.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The remaining error of law alleged is that the Tribunal failed to give any or sufficient reasons for its determination of permanency of impairment which finding, it is contended, was unreasonable. This alleged error was said to flow from the failure of the Tribunal to give adequate reasons for its conclusions, an alleged error which, for reasons already given, I do not consider has been made out. The ground was not advanced as a separate discrete complaint. The Tribunal’s reasons disclose that the assessments of permanent impairment were based directly on the opinions given in evidence by Dr Potter and Dr Ford, the respondent’s witnesses whose evidence the Tribunal accepted. In my opinion the Tribunal sufficiently disclosed the reasons for those determinations. The determinations, being based upon credible medical evidence before the Tribunal, cannot be said to be unreasonable.Conclusion In my opinion the employer has failed to demonstrate any error of law on the part of the Tribunal and the appeal by way of application to this Court should be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 27 OF 2003

BETWEEN:	PACIFIC MANNING COMPANY PTY LTD APPLICANT
AND:	MICHAEL BARTON RESPONDENT
JUDGE:	von DOUSSA J
DATE OF ORDER:	22 MAY 2003
WHERE MADE:	ADELAIDE

JUDGE:	von DOUSSA J
DATE:	22 MAY 2003
PLACE:	ADELAIDE