Wurth and Svitzer Towage Holdings Pty Ltd

[2012] AATA 63

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2012] AATA 63

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1155

GENERAL ADMINISTRATIVE DIVISION		)
Re		MARK WURTH

Applicant

And SVITZER TOWAGE HOLDINGS PTY LTD

Respondent

DECISION

Tribunal Honourable Dr B H McPherson CBE Deputy President and
Dr P McDermott, RFD, Senior Member

Date6 February 2012

PlaceBrisbane

Decision The Tribunal dismisses the application for compensation under s 42B(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).

...........[Sgd]..............................

Deputy President

CATCHWORDS

COMPENSATION – Application for compensation under Seafarers Rehabilitation and Compensation Act 1992 (Cth) – Compensation for injuries awarded previously under Seamen’s Compensation Act 1911 (Cth) – No reasonable prospect of success - Application for compensation dismissed under section 42B(1) Administrative Appeals Tribunal Act 1975 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth) s 42B(1)

Seamen’s Compensation Act 1911 (Cth)

Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 58, 87

Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (Cth) s 6

Canute v Comcare (2006) 226 CLR 535

House v Department of Defence (1996) 136 ALR 444

Jebb v Repatriation Commission (1988) 80 ALR 329

Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1

Port of Melbourne Authority v Anshun (1981) 147 CLR 589

Re Filsell and Comcare (2009) 109 ALD 198

Re Rana and MRCC (2008) 104 ALD 595

Shi v Migration Agents Registration Authority [2007] FCAFC 59

REASONS FOR DECISION

6 February 2012 Honourable Dr B H McPherson CBE Deputy President and Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      Svitzer Towage Holdings Pty Ltd (the respondent) has sought the dismissal of the application of Mr Mark Wurth (the applicant) for compensation under the Seafarers Rehabilitation and Compensation Act 1992 (Cth). The application of the respondent is made under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) on the basis that his application is “frivolous or vexatious”. We consider that it is appropriate to make an order for dismissal under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) and we give our reasons.

BACKGROUND

2.      On 16 September 1990 the applicant was injured on the MV Sandra Marie. As a seaman he received compensation under the Seamen’s Compensation Act 1911 (Cth). On 19 March 1991, the applicant commenced an action in the Supreme Court of New South Wales against his employer, Howard Smith Industries Pty Limited, for damages for injuries, loss and damage occasioned by the negligence and breach of statutory duty on the part of his employer.

3.      The statement of claim of the applicant that was filed in the Supreme Court of New South Wales was for common law damages for injuries that he sustained on 16 September 1990. The statement of claim gives particulars of injuries to the neck, back and right shoulder and arm. Under an amended statement of claim, filed in the District Court of New South Wales on 14 June 2000, the applicant also claimed damages for injuries to his right hip and leg as well as for irritability, anxiousness and depression.  The common law action was somewhat prolonged because an initial award that gave the applicant a substantial component for future loss was set aside.

4.      Eventually, on 14 September 2000, the applicant obtained judgment in the District Court of New South Wales in the sum of $112,441.20 for the negligence of his employer. The applicant was not satisfied with the amount of damages that he was awarded. The Court of Appeal declined to grant the appellant an extension of time to appeal against the award as there was no prospect that he could overturn the findings as to the injuries and disabilities he had suffered. It is fair to say that the trial judge did not accept the applicant as a credible witness.  In this case the trial judge formed an opinion as to the credibility of the applicant after seeing him giving evidence as well as having seen video evidence. It is well settled that it is only in exceptional cases that an appellate court will overturn findings of credibility made by a trial judge.

JURISDICTION

5.      On 30 March 2011, Mr Wurth lodged an application to the Tribunal naming Svitzer Australia Pty Ltd as the respondent. On 20 May 2011, an amendment was ordered so that Svitzer Towage Holding Pty Ltd, the correct name of the relevant entity, was named as the respondent.

6.      At the time when the applicant was injured, the Seamen’s Compensation Act 1911 (Cth) was in force. That Act was repealed by the Seafarers Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act1992 (Cth). That latter Act provides, in s 6, that the Seafarers Rehabilitation and Compensation Act 1992 (Cth) applies in relation to an injury, loss or damages suffered by an employee, whether before or after the commencing day of that Act, which is 24 June 1993.

7.      There is no issue between the parties that this Tribunal has jurisdiction to consider the application of the applicant for compensation; jurisdiction is conferred by the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the Act).

REVIEWABLE DECISION

8. A letter from the company, dated 3 March 2011, has been regarded as the decision under review. However, the letter of 3 March 2011 does not conform to the requirements of s 87 of the Act. The letter does not contain reasons for the decision (s 87(b)) and nor does it contain a statement advising that the applicant could make an application to the Administrative Appeals Tribunal for review of the decision (s 87(c)). Therefore, the mandatory requirement to provide a notice under s 87 has not been observed by the respondent.

CONSIDERATION

9. This is the second occasion when the application of the respondent under s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) has been considered by this Tribunal. When the application was first brought by the respondent it was not entirely clear what were the injuries that are the subject of the current claim for compensation. When the applicant made his claim for compensation on 14 February 2011, he was claiming compensation for a “neck permanent disability”. On 11 April 2011, the applicant amended his claim to include a claim for the “aggravation of [his] lower back/hip” as well as for “psychiatric injury”. The learned Deputy President has advised the applicant of the need to identify what injuries are the basis’ of his claim for compensation, and has facilitated him having the assistance of a conference registrar.

10.     The submissions by the applicant for this hearing, which are dated 25 November 2011, still do not precisely state what are the basis of his claim, except to make a general claim for “economic loss and permanent disability” [para 24]. However, those submissions do refer to a “brain injury” [para 12] and, in oral submissions before us, it was contended that there was a traumatic brain injury which occurred to the applicant on 16 September 1990.

11.     The respondent resists the claim of the applicant on a number of grounds. We consider these grounds which form the basis for the application of the respondent.

12.     The respondent relies upon Anshun estoppel as being a complete bar to any application by the applicant. The principle relating to Anshun estoppel was stated in Port of Melbourne Authority v Anshun Pty Ltd[1] by Brennan J, who remarked that both public policy and the interests of litigants require that there should be an end to litigation. His Honour emphasised that when a judgment is entered, all of the rights which a litigant might have claimed in the litigation are merged in the judgment.[2] The respondent also relies upon the doctrine of res judicata, which emphasises that there should be finality in litigation and that a party should not be vexed twice in the same matter.[3]

[1] (1981) 147 CLR 589.

[2] (1981) 147 CLR 589 at pp. 608-609 and 612.

[3] Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1.

13.     In House v Department of Defence[4], Cooper J declined to make a ruling on whether the “complex and controversial question”[5] of issue estoppel and cause of action estoppel apply to proceedings in this Tribunal. We are not persuaded that the doctrines of Anshun estoppel and res judicata bar an application for compensation under the Act. There is a relevant Presidential decision of this Tribunal in which it was ruled that the doctrines of cause of action estoppel and issue estoppel do not apply in this Tribunal;[6] we respectfully follow that decision. Judicial proceedings, in which these doctrines operate, are quite distinct from administrative proceedings. The administrative decision-making process is a “continuum” and the Tribunal’s function is a part of that “continuum”. Thus, the Tribunal considers the entitlement of the applicant during the whole assessment period.[7] Essentially there is nothing in the Act which limits the claimant to one claim.[8] However, a limitation to a claim for compensation is imposed by s 58 of the Act.

[4] (1996) 136 ALR 444

[5] (1996) 136 ALR 444 at [450]

[6] Re Filsell and Comcare (2009) 109 ALD 198 at [61] per Deputy President Jarvis.

[7] See Jebb v Repatriation Commission (1988) 80 ALR 329 at 333 per Davies J, cited by Downes J in Shi v Migration Agents Registration Authority [2007] FCAFC 59 at [37].

[8] Cf., Re Rana and MRCC (2008) 104 ALD 595.

14. The respondent relies on s 58 of the Act to prevent any further application for compensation. This provision applies where an employee recovers damages in respect of an injury to the employee (s 58(1)). The provision also provides that compensation is not payable under the Act to the employee in respect of the injury after the date on which damages were recovered (s 58(4)). Having regard to the decision of the High Court of Australia in Canute v Comcare[9], we consider that the expression “injury” in s 58 of this Act should be construed to refer to “the resultant effect of an incident or ailment upon the employee’s body”.[10]

[9] (2006) 226 CLR 535.

[10] (2006) 226 CLR 535 at 540

15.     In the action in the District Court of New South Wales, the employee recovered damages for soft tissue injuries to the right upper thigh and neck associated with soft tissue strain to musculo-ligamentous elements in the cervical spine. The trial judge found that any ongoing neck problems which the applicant complained of are due to early degenerative change. The trial judge was not satisfied that the plaintiff suffered any serious injury to the spine.

16. In considering the current claims of the applicant they go well beyond the claims for soft tissue injury for which damages were awarded. We do not think that it is appropriate to make a decision which is based upon s 58 of the Act.

17.     The current application by the applicant for compensation is essentially made for a number of injuries: neck permanent disability; aggravation of lower back/hip; psychiatric injury and brain injury. We have reviewed the submission of the applicant, dated 14 July 2011, together with the various medical and other reports which were appended to that submission. We have also reviewed the numerous medical reports which are in the supplementary section 37[11] documents.

[11] Administrative Appeals Tribunal Act 1975 (Cth).

18.     One of the contentions made by the applicant is that he has a traumatic brain injury which sustained in the 1990 workplace accident. The applicant relies upon a report by Ms C Bendall, psychologist, who, on 17 June 2011, opined that “the 1990 traumatic brain injury has led to permanent impairment”. She also opined that “it is considered that the traumatic brain injury has been sustained as an injury due to the accident of the 16 September 1990”. We do not give any weight to this opinion of the psychologist which is based upon the self-report of the applicant.

19.     There is certainly medical evidence before us which relates to a brain injury which was sustained by the applicant; however, that injury occurred at a much earlier date than the 1990 workplace accident. In 1984, the skull of the applicant was fractured when he was bashed at Redfern Railway Station. This head injury is discussed by Dr Brian Kimbell, psychiatrist, in a report dated 12 February 2003, which was filed by the applicant. Dr Kimbell investigated the 1984 head injury and he concluded that it would impact upon the employability of the applicant. This report does not mention that the applicant sustained any brain injury in his 1990 workplace accident. We have also read the reasons of the trial judge who discussed what injuries were sustained by the applicant. There is no suggestion that the applicant ever sustained a head injury in the 1990 workplace accident. The statement of claim in the Supreme Court of New South Wales also does not contain an allegation that the applicant sustained a head injury. We conclude that there is no cogent evidence that the applicant ever received a traumatic brain injury in the 1990 workplace accident.

20.     The applicant has also made a claim for compensation for a psychiatric injury. There is no medical evidence that he has any psychiatric injury which is related to the 1990 workplace accident. The reasons of the trial judge refer to a report by Dr Robert Delaforce, a consultant psychiatrist, who was of the opinion that the applicant has posttraumatic stress disorder which is not caused by the 1990 workplace accident. Dr Lee, in his report of 7 November 1997, reported that the applicant experienced posttraumatic stress disorder which was subsequent to an assault upon him in December 1992.

21.     The applicant has also made a claim for compensation for a lower back condition. The lower back of the applicant was examined by Dr R Bourne, orthopaedic surgeon, who reported, on 20 November 2007, that the applicant has “mild fact joint arthritis of his lower back and some degenerative changes at C5/6 and C6/7”. This report, which was filed by the applicant, does not support the contention that the condition of the applicant has been caused by the 1990 workplace accident.

22.     The applicant has also made a claim for compensation for a right hip condition. The hip of the applicant was examined by Dr G Day, orthopaedic surgeon, who reported, on 30 November 2007, that the applicant has moderately severe arthritis of the right hip. This report, which was filed by the applicant, does not support the contention that the condition of the applicant has been caused by the 1990 workplace accident.

23. We do not consider that there is any medical evidence which shows that the injuries for which compensation is sought have been caused by the 1990 workplace accident. It is for that reason that we consider that the application for compensation does not have any reasonable prospect of success. We therefore consider that it is appropriate to make an order under s 42B(1) of the Administrative Appeals Tribunal  Act 1975 (Cth) to dismiss the application for compensation.

24. The respondent has also sought a direction under s 42B(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) that the applicant must not, without the leave of the Tribunal, make a subsequent application to the Tribunal in connection with any work injuries suffered whilst serving on the MV Sandra Marie on 16 September 1990. We do not consider that it is necessary to make such a direction. We have, in the presence of the applicant, referred to various reports that the applicant has filed in this Tribunal. The reports that the applicant has filed do not support the assertion that any brain injury or any of the other claimed conditions are a result of the work injuries that he suffered on 16 September 1990. The applicant would certainly appreciate that any further application to this Tribunal, without any cogent medical evidence, would be futile.

I certify that the 24 preceding paragraphs are a true copy of the reasons for the decision herein of The Honourable Dr B H McPherson CBE Deputy President and Dr P McDermott, RFD, Senior Member

Signed:  .................[Sgd].......................................................
               Associate

Date/s of Hearing  9 December 2011
Date of Decision  6 February 2012
The Applicant was represented by            Ms Maddison, Advocate
Counsel for the Respondent     Mr Mark Healy
Solicitor for the Respondent     HWL Ebsworth Lawyers