Robertson and CSR Shipping - [2001] AATA 325

DECISION AND REASONS FOR DECISION [2001] AATA 325

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1216

GENERAL ADMINISTRATIVE DIVISION )

Re JAMES PATRICK ROBERTSON
Applicant

And CSR SHIPPING
Respondent

DECISION

Tribunal Senior Member M D Allen

Date2 April 2001
PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL )         No N2000/1216
  )
GENERAL ADMINISTRATIVE DIVISION     )

Re: JAMES PATRICK ROBERTSON
Applicant

And: CSR SHIPPING
Respondent

DECISION

Tribunal Senior Member M D Allen
Dr M E C Thorpe, Member

Date 2 April 2001

Place Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof uts decision, namely THAT
1. This matter is to be remitted to the Respondent with direction that the Applicant, JAMES PATRICK ROBERTSON is entitled to compensation pursuant to section 26(1) of the Seafarers Rehabilitation and Compensation Act 1992 for injury aboard the vessel 'Goliath' on 13 November 1999.
2. The Respondent is to pay the Applicant's costs.

(Sgd) M.D. ALLEN
.............................
Presiding Member
CATCHWORDS
Seaman's compensation - Serious and wilful misconduct. Whether Applicant under the influence of alcohol at time of injury. Onus of proof upon Respondent to prove Applicant under the influence.

Seafarers Rehabilitation and Compensation Act 1992 - s12, subs26(3)

Re Elvin and Comcare 51 ALD 706 not followed
Casarotto and Australian Postal Commission 86 ALR 399 followed

REASONS FOR DECISION

Senior Member M D Allen

At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen

Signed: Kwai-Ling Wong
..................................................................................……………………………….
Associate

Date of Hearing  2 April 2001
Date of Decision  2 April 2001
Counsel for Applicant                 Mr S Marsh
Solicitor for Applicant                  Mr J Hasson, Leitch Hasson Dent
Counsel for Respondent            Mr R Sheldon
Solicitor for Respondent            Mr A Highfield, Ebsworth & Ebsworth

DRAFT JUDGMENT
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/1216
By     Mr M.D. Allen, Senior Member
         DR M.E.C. THORPE, MEMBER
Re: Robertson & CSR Shipping
SYDNEY, MONDAY, 2 APRIL 2001
MR ALLEN: In this matter, the applicant pursuant to an application lodged with the Tribunal on or about 3 August 2000, sought review of…

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.

Keep reading for free

Create a free CaseChat account to read Robertson and CSR Shipping and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] AATA 325
Decision Date: 2 April 2001

CaseChat Overview and Summary

Robertson brought a claim against CSR Shipping under the Seafarers Rehabilitation and Compensation Act 1992 for injuries sustained while working on a vessel. Robertson alleged that CSR Shipping was liable for the injuries and that they were not a result of any misconduct on his part. CSR Shipping contested the claim by asserting that Robertson was under the influence of alcohol at the time of the injury, which they argued constituted serious and wilful misconduct, thereby excluding him from compensation. The matter was brought before the court to determine the validity of CSR Shipping's defence and the applicable legal principles.

The primary legal issue before the court was whether CSR Shipping had discharged the onus of proving that Robertson was under the influence of alcohol at the time of his injury. Under section 12, subsection 26(3) of the Seafarers Rehabilitation and Compensation Act 1992, a seafarer who sustains an injury due to their own serious and wilful misconduct is not entitled to compensation. CSR Shipping bore the responsibility of proving that Robertson's misconduct met the statutory threshold of 'serious and wilful' and that his injury was a direct consequence of this misconduct. The court needed to consider the burden of proof and the applicable standard in this context.

The court determined that CSR Shipping failed to meet the onus of proving that Robertson was under the influence of alcohol at the time of his injury. The court held that the evidence presented was insufficient to establish the claim that Robertson's misconduct was both serious and wilful, as required by the Act. In reaching this decision, the court distinguished the case from Re Elvin and Comcare, which had suggested a different approach to the burden of proof. Instead, the court followed the reasoning in Casarotto and Australian Postal Commission, which set a higher standard for proving misconduct in compensation claims. Consequently, the court found in favour of Robertson, holding that CSR Shipping could not exclude him from compensation based on the alleged misconduct.

The court ordered that CSR Shipping was liable to pay Robertson the full amount of compensation for his injuries, as no misconduct on his part had been proven. The decision underscored the importance of the onus of proof in compensation claims and the need for clear and convincing evidence to establish serious and wilful misconduct under the Act.

Orders