Precup and ASP Ship Management Pty Ltd (Compensation) - [2019] AATA 5549

Precup and ASP Ship Management Pty Ltd (Compensation) [2019] AATA 5549 (18 December 2019)
Division: General Division
File Number(s): 2017/7513 & 2019/1823
Re: Adrian Precup
APPLICANT

AndASP Ship Management Pty Ltd
RESPONDENT

DECISION
Tribunal:Member A Ward
Date:18 December 2019
Place:Adelaide

The Tribunal:
1.sets aside the Decision under review in matter 2017/7513; and
2.orders that the Respondent pay the Applicant’s costs of the application.

................................[sgnd].............................
A WARD
(Member)

Catchwords
COMPENSATION – seafarers – medical treatment – whether costs of travel to medical treatment by taxi reasonable – whether medical treatment reasonable – whether reasonable for Applicant to use public transport to attend medical treatment – where Applicant’s accepted condition inhibitory to him using public transport – decision under review set aside.
Legislation
Seafarers Rehabilitation and Compensation Act 1992
Cases
Precup v ASP Ship Management [2015] AATA 467
Secondary Materials
Clinical Framework for the delivery of Health Services
REASONS FOR DECISION
18 December 2019
INTRODUCTION

This is an application for review of two decisions made by ASP Ship Management (the Respondent) arising out of an accepted back injury that Mr Precup (the Applicant) sustained in an incident while he was working aboard the MV Portland. The main issue for consideration is whether it is reasonable for the Respondent to pay for the Applicant’s taxi transport for his attendances at the Hampstead Rehabilitation Centre for supervised gym and hydrotherapy in relation to the accepted condition. The secondary issue for consideration is whether that supervised gym and hydrotherapy is reasonable treatment. The Seafarers Rehabilitation and Compensation Act 1992 (the Seafarers Act) provides compensation for seafarers and certain others who suffer injuries arising out of, or in the course of, their employment. Mr Precup was a marine engineer when he injured his back in a fall whilst working on board the MV Portland on 19 July 2005.
As a consequence of the fall, he developed urinary and bowel incontinence, having been diagnosed as suffering Cauda Equina Syndrome, which resulted in the incontinence. Mr Precup has suffered urinary incontinence and more significantly, bowel incontinence for many years leading up to the hearing. Mr Precup must undergo a significant regime of treatment every day to deal with his condition. He must wear special clothing and has to self-catheterise regularly every day.
By way of preliminary observation the Tribunal finds the Applicant to be a straightforward creditworthy and reliable witness.
He has ongoing pain from the injuries and requires a regime of medication to deal with that pain, as well as a regime of physical treatment, including supervised exercises at a gymnasium and hydrotherapy. Mr Precup was able to obtain this treatment and participate in his rehabilitation at the Hampstead Rehabilitation Centre, in the north-eastern suburbs of Adelaide. This part of the Centre is specifically designed for people with spinal injuries and staffed by persons with knowledge of such injuries and the effects of them (including incontinence). If required, more significant medical assistance is available from the adjacent…

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: [2019] AATA 5549
Decision Date: 18 December 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a dispute between Mr. Precup, the applicant, and ASP Ship Management Pty Ltd, the respondent, concerning compensation for a seafarer. The core of the dispute revolved around the reasonableness of costs incurred by Mr. Precup for medical treatment and associated travel.

The Tribunal was required to determine whether the costs of travel by taxi to obtain medical treatment were reasonable, and whether the medical treatment itself was reasonable. A key question was whether it was reasonable for the applicant to use public transport to attend medical treatment, particularly given his accepted medical condition which allegedly inhibited his ability to do so.

The Tribunal found that the applicant's accepted condition was indeed inhibitory to him using public transport. Consequently, the Tribunal set aside the first reviewable decision. While specific orders regarding the second reviewable decision were adjourned for further consideration, the Tribunal ordered the respondent to pay the applicant's costs of the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The parties have requested that upon consideration of this Decision there is further attendance to consider the necessary orders that arise concerning the second Reviewable Decision.DECISION Whilst specific orders will be made at a subsequent consideration, the findings of the Tribunal in regard to the First Decision is that it will be set aside. Consequential orders with regards to the Second Reviewable Decision will be adjourned for further consideration. The Respondent is ordered to pay the Applicant’s costs of the application.

Ratio Decidendi

Legal Principle Established

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