Taylor and ASP Ship Management
[2000] AATA 254
•10 March 2000
DECISION AND REASONS FOR DECISION [2000] AATA 254
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/675
GENERAL ADMINISTRATIVE DIVISION )
Re JOSHUA STUART TAYLOR
Applicant
And ASP SHIP MANAGEMENT
Respondent
Tribunal Senior Member M D Allen
Date10 March 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/675
)
GENERAL ADMINISTRATIVE DIVISION )
Re JOSHUA STUART TAYLOR
Applicant
AndASP SHIP MANAGEMENT
Respondent
DECISION
Tribunal Senior Member M.D. Allen
Date 10 March 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE.
The matter is remitted to the Respondent with directions that the Applicant's injuries did occur in the course of the Applicant's employment.
The Respondent is to pay the Applicant's costs.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
Seamans Compensation. Injured whilst ashore at a nightclub. Evidence of intoxication. Serious and wilful misconduct resulting in serious and permanent impairment
Seafarers Rehabilitation and Compensation Act 1992 - ss9, 12 and 26
Comcare v Mather 21 AAR 297
Kennedy v Telstra Corporation 39 ALD 94
Grime and Telstra Corporation Ltd 20 AAR 43
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:
....................................................................................Associate
Date of Hearing 10 March 2000
Date of Decision 10 March 2000
Counsel for Applicant Mr K MorrisseySolicitor for Applicant Mr D Curren, Currans
Counsel for Respondent Mr G M Watson
Solicitor for Respondent Mr Colin Hall, Blake Dawson WaldronDRAFT JUDGMENT o/n 6567
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N99/675
By MR M.D. ALLEN, Senior Member
TAYLOR and ASP SHIP MANAGEMENT
SYDNEY, THURSDAY, 9 MARCH 2000MR ALLEN: In this matter, the applicant, by application lodged with the Tribunal on 7 May 1999, sought review of a decision made 21 December 1998 refusing him compensation under the Seafarers Rehabilitation and Compensation Act 1992 as amended. The facts are within a reasonably short compass. On 13 August 1998 the applicant was a trainee engineer on the ship River yarra, which at that time was berthed in the Port of Townsville. I note in evidence that the applicant said the 14th, but looking at some of the documentation from the hospital it would seem that the 13th may be a more correct date, but nothing turns on that.
On the day in question he left the ship with the permission of a senior officer and along with 10 other crew members took a mini bus to the Townsville Central Business District and there did some shopping. At or about 4.30 or 5 pm he met fellow shipmates at an Hotel. He continued drinking at various licensed establishments, which conduct also included having a meal, and at or about 1 am the next morning ended up at an establishment known as The Bank, which is apparently some form of discotheque or nightclub. There he went to speak to a shipmate.
In evidence today he stated that the shipmate was sitting on a bar stool talking to some ladies. He approached him from behind, went to whisper in his ear, and in order to do this he stood on the rung of the bar stool. He then slipped off the rung, landing on the floor, and felt pain in his leg. In previous other documents the applicant has given a slightly different version of the events. For example, at document T7, which is his application for compensation, he said he was walking across a dance floor and his foot came down on the leg of a stool. An ambulance was called and the applicant was taken to Townsville General Hospital.
Exhibit R2 in these proceedings are the notes from the Queensland Ambulance Service, whereas exhibit R3 are the clinical notes of the Townsville General Hospital. I do not really need to go into those notes, suffice it to say that the evidence that the applicant had consumed a considerable quantity of alcohol in the period from either 5.30 or 4 pm in the afternoon, up until the time he was injured. Given the notes of the hospital it cannot be disputed that at the time he was injured the applicant
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©Auscript Pty Ltd 2000was under the influence of alcohol and that this fact was the real cause of his injury.
Section 9 of the Seafarers Rehabilitaiton and Compensation Act reads, inter alia, subsection (1):
This section does not limit the circumstances in which an injury to an employee maybe treated as having arisen out of or in the course of his employment.
Subsection (2) headed Specific Instances reads:
An injury is also to be treated as having so arisen for the purposes of this Act if it happened, (b) if the employee is a seafarer, (I) while the employee was on board the prescribed ship on which he or she was employed or engaged, or (ii) while the employee was temporarily absent from that ship during an ordinary recess in that employment and not at his or her place of residence, or (c) if the employee is a trainee while the trainee was undergoing a required course of training or was in any other place other than his or her place of residence during an ordinary recess in that course of training.
Subsection (4) headed Abnormal Risk:
Subsection (2) does not apply if the employee is injured, (a) while at a place referred to in that subsection, of (b) during an ordinary recess in his or her employment because he or she voluntarily and unreasonably submitted to an abnormal risk of injury.
So far as paragraphs (b) and (c) of subsection (2) of section 9 are concerned, I note that the applicant at the time was a trainee engineer, so no doubt subparagraph (c) is the more correct rather than (b), however to my mind that makes little difference in the circumstances of this case.
I find that by reason of his over indulgence in alcohol the applicant did subject himself to an abnormal risk of injury. The partaking of alcohol by him was voluntary and his subjecting himself to an abnormal risk of injury was, in the circumstances which occurred, unreasonable. Subsection (2) of section 9 does not therefore apply to the applicant. However, I consider subsection (2) of section 9 is an inclusive provision and does not detract from the force of subsection (1) of section 9 if the applicant can bring himself within the provisions of that subsection.
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In Comcare v Mather 21 AAR 297, the facts were not altogether dissimilar. The case concerned two members of the army who, whilst on an exercise in the Northern Territory, had been stood down from duty and encouraged to take authorised local leave. They spent their time at hotels and one soldier was killed, the other seriously injured when they were struck by a motor vehicle whilst walking back to their camp. The headnote stated:
In the present case the soldiers' participation in drinking and socialising at hotels and returning to camp from non-distant points which placed them on the highway at the relevant time was encouraged by the army by the grant of local leave, which, of its nature and having regard to the conditions of service, implied these undertakings.
After discussing the case of Hatzimanilos v ANI Corporation Limited, 173 CLR 473 and McCurrie v Lamb, 8 NSW Compensation Court Reports 556 and Inverill Shire Council v Lewis, also at 8 NSW Compensation Court Reports 562, Kieffel J said at page 303:
In my view encouragement is not to be taken as of narrow meaning and limited to some positive action and specific terms which might lead the employee to undertake a particular activity or attend at a particular place.
The two particular cases which their Honours in Hatzimanilos were concerned with in this context, Commonwealth v Oliver, 107 CLR 353, and Danvers v Commissioner for Railways New South Wales, 122 CLR 529, involved respectively an expectation of presence coupled with a recognised practice of making available facilities for an employee's use. The fact is, Hatzimanilos did not require the Court to discuss in greater detail what was encompassed by the phrase induced or encouraged.
To be said to have expressly or impliedly induced or encouraged an undertaking or presence at some location could refer to, by way of example only, requirements, suggestion, recognition of practices, fostering of participation or providing assistance and may include the exercise of discretion or choice on the part of the employee. Further attempt at definition would be fruitless. In each case the question will be whether the attendance at the place at which, or the undertaking in which the employee is involved when injured in an interval, falls within the ambit of statements, acts or conduct made by the employer and what may be said to logically arise from them and in each case importantly they must be viewed in the background of the particular employment and the circumstances in which the employer is then placed.
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©Auscript Pty Ltd 2000That case can be compared in Kennedy v Telstra Corporation, 39 ALD 94. The facts in that case were that the employee of the respondent corporation was residing at a hotel in Narrabri in the course of his work. He and fellow work mates, after having a meal at one hotel went to another hotel where they remained until 12 o'clock at night, drinking and watching dog racing on the television. On the way back to the motel the applicant was assaulted by a group of Aboriginals.
The case may, of course, be distinguished by the fact that the assault took place within the curtilage of the motel at which the applicant was then staying. However, at page 101 his Honour Tamberlin J said, referring to the employees after their meal going to another hotel as follows:
I do not share this characterisation of the applicant's behaviour in going to the Clubhouse Hotel. A determination of the question whether an employee is within the course of employment in the circumstances of the present case does not depend on the accidental fact that they went to the Clubhouse Hotel to watch television and have a few more beers rather than stay at the Telegraph Hotel and drink or watch television. The evidence does not disclose whether the Telegraph Hotel had television. The approach taken by the AAT that they turned right to the Clubhouse Hotel and then returned to the motel from there instead of turning left and returning to the Avalon Motel and in doing so left the course of employment is too rigid. There is no suggestion that the visit to the Clubhouse Hotel in any way caused or provoked the assault which led to the confrontation and assault resulting in the injury. In any event I do not think that the excursion to the Clubhouse Hotel took the applicant outside the interval or interlude of employment.
It would seem in the cases I have just cited that the concept in employment has been widened by the Courts, particularly in cases such as the present where the applicant as a seaman, is normally resident on the ship. Here the applicant had permission to go ashore and it must have been within the contemplation of the ship's officer who granted permission, that he would spend at some of his time at licensed premises. That is to say, attendance at those premises and The Bank Discotheque per se did not take the applicant out of the course of his employment.
His conduct in drinking to intoxication is however, a different matter. Section 12 of the Seafarers Rehabilitation and Compensation Act reads:
For the purposes of this Act an employee who is under the influence of alcohol or a drug other than a drug prescribed for the employee
By a legally qualified medical practitioner and dentist and used
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©Auscript Pty Ltd 2000the employee in accordance with that prescription, is taken to have engaged in serious and wilful misconduct.
Section 26 of the said Act then goes on to provide:
(1) if an employee suffers an injury that results in his or her death, incapacity for work or impairment compensation is payable for the injury.
…(3) Compensation is not payable for an injury that is not intentionally self-inflicted but is caused by the serious and wilful misconduct of the employee, unless the injury results in death, or serious and permanent impairment.
It is clear therefore that his voluntary intoxication is serious and wilful misconduct on the part of the applicant. The only basis upon which he can be granted compensation is if the injury resulted in serious and permanent impairment. As to that this matter is confused. The applicant's general practitioner, Dr Furey, who it was stated in evidence is also an examiner of seamen for the Australian Maritime Safety Authority, has issued two reports.
The first of those reports is dated 24 February 1999. Inter alia that the applicant's treating specialist, Dr Tarrant, organised an x-ray and CT scan which revealed one, a concentric reduction of the subtalar joint, two, an evolsion fracture of the base of the fifth metasaril which is in good position, it t did not need to be pinned; three, an evolsion fracture from the posterior margin of the talas; four, some calcification or ossification near the neck of thetalas. The report continues:
I saw him on 3 September, 22 October and 9 December 1998. A selective duty certificate was issued from 14 December. His final consultation was on 28 January 1999.
Under the heading of Diagnosis Dr Furey states:
Subtalar dislocation of the right ankle with evolsion fracture of the base of the fifth metasarsil in the posterior margin of the right talas. Opinion as to capacity for work. When seen in December he had the capacity for selective duties but when seen on 28 January 1999 he had the capacity to perform his normal duties although would have had some problems with ladder climbing.
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©Auscript Pty Ltd 2000I would interpose there that there was tendered two reports from the treating orthopaedic surgeon, Dr Tarrant. Indeed, there were four reports tendered by Dr Tarrang but only two are relevant. On 11 February 1999 Dr Tarrant reported to Dr Furey:
I gather he has been able to return to work at this stage and will need to be close to fully fit in order to return to sea.
On 31 March 1999 Dr Tarrant reported:
He is keen to return to work but not at sea, he still has a slightly stiff ankle and subtalar joint with some local pigmentation. He had some physiotherapy and a short leg cast with Chris Baker although the expense of treatment was a problem. He seems to be getting better anyway and I would adopt a wait and see policy and will review him at some stage in the future.
Exhibit A5 is a report by Dr Furey dated 16 December 1999. This report apparently was not served on the respondent or if it was it was lost, mislaid. Certainly it was served on the Tribunal on 6 January 2000. In that report Dr Furey seems to have changed his opinion considerable as to the effect upon the applicant of his injury. At page 3 of the report under the heading My Prognosis Dr Furey writes:
The problems will be as the joint narrowings continue within the tarus of the foot and in this particular subtalar joint we would find less ability to perform heavy work and much less ability to perform any form of sporting activity. He will not be able to bear weight and will have trouble running and his foot will provide a constant source of aching. As Dr Tarrant said in one of his reports it is possible that he could end up with quite severe osteoarthritis and may need an ankle arthrodesis in the future. I agree with his comment.
So all in all he faces a future of increasing loss of mobility, increasing pain and increasing degeneration and the eventual probability of arhtrodesis. Dr Furey continues under the heading My Opinion as to Whether the Applicant is Fit for Work at Sea:
He is totally unfit for sea-going duties due to the nature of that work which requires him to climb at speed and handle a rocking ship.
Under the heading My Opinions as to Whether the Applicant is Fit to Work Ashore Dr Furey writes:
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©Auscript Pty Ltd 2000Yes, but unfit for heavy work but he could undertake the type of work required of a teacher, journalist, photographer. That is to say any light physical work such as these types of employment would require. Whatever the outcome he will need help through the rehabilitation services to retrain into a suitable occupation.
I would simply interpose there in saying it is difficult to ascertain what the applicant can do. He complained in his evidence of his ability to drive a motor vehicle yet stated in cross-examination he had had two weeks acting as a driver for a friend of his who had lost his motor vehicle licence. Exhibit A3 is a report by Dr David Bornstein which was forwarded to the respondent's solicitors. In that report Dr Bornstein opines that:
The applicant's current stiffness is related to healing of the soft tissue component of the injury and this does lead to pain in the foot and I consider that his complaints therefore, are reasonable and consistent with the injury sustained.
In response to questions Dr Bornstein states:
(a)The precise diagnosis is the subtalar fracture dislocation of the right foot. There have been evolsion fractures of the talas and metasarsil;
(b)this patient has been left with a stiff foot which has been found on objective grounds but I consider his condition to be essentially static;
(c)I consider this gentleman fit for work. He tells me that his days working at sea are finished because of his lack of agility on the foot. It is clear that he is fit for limited work on his feet and certainly could manage any sedentary duties.
Dr Bornstein continued under the heading In Response to your Further Questions:
(1)He suffers from a stiff foot which inhibits the ability to walk on uneven ground or surfaces as a direct consequence of a subtalar fracture dislocation.
(2)His current condition is indeed a continuation of the injury or rather a sequel of that injury sustained on 13 August 1998.
(5)I consider his current condition to be largely permanent. There is some slight potential for increase in the ranges of
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©Auscript Pty Ltd 2000movement over time. Some relaxation of scar tissue can occur for an 18 months period after its formation.
(7) He is likely to be left with residual mild stiffness in the foot.
(8)He is certainly fit enough to return to many forms of work, including all forms of sedentary duty and some duties on his feet. The major restrictions would be protracted periods on the feet and the necessity to walk on uneven surfaces.
Dr Bornstein then went on to deal with the Comcare Guide to Assessment and stated that the impairment was nil under that table. He added, of course:
But the description of impairment does not fit precisely with what this gentleman's restrictions are as he can rise to a standing position and walk, but would have difficulty with uneven surfaces rather than grades and steps.
In considering whether the injury occasioned is serious, I would refer to the matter of Grime v Telstra, 20 AAR 43, where the Tribunal adopted what fell from the apparently Full Court of the Supreme Court of Victoria in Humphries v Poljak (1992) 2 VR 129,where the expression "serious long-term impairment or loss of a bodily function in the Transport Accident Act 1986 occurred", and said:
To be "serious" the consequences of the injury must be serious to the particular applicant. Those consequences will relate to the pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious. The question is asked, "Can the injury, when judged by comparison with other cases in the range of possible impairments or losses be fairly described at least very considerable and certainly more than significant or marked?" Beyond such guidance it is, we think, not possible to go. The only other assistance in the resolution of such applications that can be gained will derive from the trends that will emerge from the determination in the future from time to time of a range of applications, including those the adjudication of which is now our responsibility.
The Tribunal continued at page 51:
The Tribunal considers that to be serious the impairment must be very considerable, that is to say more marked or significant.
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©Auscript Pty Ltd 2000Factors such as the financial impact on the applicant and the residual disabilities will all be relevant in the determination of this factual issue.
At page 53 the Tribunal considered the specific case and held that there had not been serious injury:
We note, too, that the cast of Humphries v Poljak has been applied in subsequent decisions of the Victorian Supreme Court.
The word" serious", of course, is a common English word, and in the New Shorter Oxford Dictionary 1993, meaning (3) given to the word "serious" is "important, grave, having potentially important especially undesired consequences, giving cause for concern, a significant degree or amount worthy of consideration".
To my mind the inquiry should not concentrate upon the degree of impairment, particularly when reference is made to the Comcare tables or indeed to the tables under the Seafarers Rehabilitation and Compensation Act, which are identical to the Comcare tables – see particularly the trenchant criticism of those tables by the Full Court and the Federal Court in Whittaker v Comcare, 86 FCR 532 – but rather the inquiry is to what effect does the injury have upon the applicant.
It is no doubt easy to give examples where one particular injury would have no effect on one applicant and considerable effects upon another. Here I was particularly impressed by the report of Dr Bornstein and it seems from that report that the applicant has an injury which is permanent and if, as Dr Bornstein says, major restrictions would be walking on uneven surfaces, that seems to accord with the latest reports of Dr Furey that the applicant is now totally unfit for seagoing duties.
That being so, the effect of the injury upon this applicant is that an occupation for which he is training is no longer open to him. Consequently I consider that the effects of the injury can be said to be serious. The decision under review will be set aside and the matter remitted to the respondent with the direction that the injuries did occur in the course of the applicant's employment.
In his claim for compensation the applicant also claimed compensation for lost wages. That matter should be reconsidered by the respondent following this decision, but I would say that it seems clear from the reports of Dr Furey that weekly payments of compensation should be paid up and until 14 December 1998 when Dr Furey currently issued a certificate for selective duties. Just what duties the applicant could perform after that
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©Auscript Pty Ltd 2000date is difficult to ascertain on the material before me and that is why the question of payments has been remitted for further consideration. The applicant should have the costs of his application.
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