Smith and Captain Cook Cruises Pty Ltd [2009] AATA 779 (9 October 2009)

Last Updated: 9 October 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 779

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q 200600194

GENERAL ADMINISTRATIVE DIVISION		)
	Re		RONALD SMITH

Applicant

And

CAPTAIN COOK CRUISES PTY LTD

Respondent

DECISION

Tribunal

Senior Member Bernard J McCabe and Dr M Denovan, Member

Date 9 October 2009

Place Brisbane

Decision

The Tribunal affirms the reviewable decision.

...............[Sgd]...............................
Senior Member

CATCHWORDS

WORKERS’ COMPENSATION – Injury – Post traumatic stress disorder and depression conditions – Whether liable to pay compensation – Whether conditions arose out of, or were aggravated by, the workplace – Applicant claims dismissal in 1996 caused conditions –Applicant’s conditions neither arouse out of, nor aggravated, by the workplace – Respondent not liable – Decision affirmed

Seafarers Rehabilitation and Compensation Act 1992 (Cth) s 3

REASONS FOR DECISION

9 October 2009

Senior Member Bernard J McCabe and Dr M Denovan, Member

1. Mr Ronald Smith, the applicant, was formerly employed by Captain Cook Cruises Pty Ltd, the respondent. Mr Smith now suffers from a psychiatric condition. He claims that condition arose out of, or was aggravated by, the circumstances in which he was removed from one of the respondent’s vessels when the respondent terminated his employment in 1996.
2. Mr Smith sought compensation for his condition from the respondent under the Seafarers Rehabilitation and Compensation Act 1992 (“the Act”). The original application for compensation was lodged on 19 August 2005. The respondent refused to make a decision in relation to the application. It was deemed to disallow the claim. The applicant brought an application before the Tribunal. The respondent initially argued the Tribunal had no jurisdiction to hear the application because it claimed the vessel was not under an Australian flag at the relevant time. The Tribunal decided on 7 June 2006 that it had jurisdiction to hear the application: Re Smith and Captain Cook Cruises Pty Ltd [2006] AATA 449.
3. The respondent denies that it is liable to compensate the applicant. In particular, it claims the circumstances of the applicant’s removal from the ship could not have brought on or aggravated the applicant’s health as alleged. Alternatively, the respondent says any health effect arose out of reasonable disciplinary action or as a consequence of serious and wilful misconduct.
4. It was apparent from the proceedings that there is bad blood between the applicant and his former employer. The applicant wished to introduce evidence of bad employment practices that he said occurred over a long period of time. He also wished to introduce evidence in support of an allegation that the respondent was operating in breach of the provisions of the Navigation Act 1912. The respondent, for its part, was prepared to adduce evidence of various forms of misbehaviour that it alleged against Mr Smith. In the event, we decided that none of this evidence was relevant. The matter is able to be resolved by considering the medical evidence and the different accounts of what happened on the morning Mr Smith’s employment was terminated. There is no need to comment on the respondent’s record as an employer or on Mr Smith’s record as an employee.
5. We are not persuaded Mr Smith’s psychiatric condition arose out of, or was aggravated by, the circumstances of his employment. While we do not doubt he is an ill man, his conditions are not compensable under the Act because they are not an “injury” within the meaning of s 3.

THE BACKGROUND TO THE DISPUTE

6. Mr Smith trained as a cook in the Navy. He was subsequently employed as a chef by the respondent on one of its vessels in 1987. The vessel operated out of Sydney. On 12 March 1991, the applicant was making his way from work to his residence. He was chased by some unidentified men and seriously assaulted at the front door to his home.
7. The applicant sought workers’ compensation under Workers Compensation Act 1987 (NSW) in respect of the 1991 incident. His claim was unsuccessful. We are unable to go behind that decision but we understand the claim foundered because the assault occurred after the point at which Mr Smith completed his journey home.
8. Mr Smith subsequently returned to work with Captain Cook Cruises. In 1992, the applicant sailed from Sydney to Cairns aboard the MV Reef Escape. Mr Smith worked on the Reef Escape as it operated out of Cairns over the next few years.
9. The respondent subsequently decided to commence operations in Fiji using the Reef Escape. Mr Smith says he was offered the position of hospitality manager aboard the vessel when it moved to Fiji. He formed part of the crew on the vessel when it made the 16-day voyage to Fiji in March 1996.
10. The vessel began a training phase after it arrived in Fiji. A local crew was selected and inducted. Witnesses called by the respondent explained they wanted all of the crew to be indigenous Fijians although exceptions were made for the officers and those occupying executive roles, like Mr Smith. I understand that crew on the Reef Escape were expected to take part in the entertainment provided for passengers. Mr Smith was in charge of training crew for this purpose.
11. There was a serious breakdown in the relationship between Mr Smith and his employer during this period. We do not need to apportion responsibility for that breakdown, although both parties seemed keen that we should do so. The breakdown resulted in Mr Smith’s employment being terminated and removal from the Reef Escape.

THE FACTS SURROUNDING MR SMITH’S REMOVAL FROM THE VESSEL ON 27 APRIL 1996

12. The relationship between Mr Smith and his employer had been deteriorating for some time. Witnesses called by the respondent referred to aspects of Mr Smith’s behaviour, but they also described what may be described as “creative differences” over the direction of the entertainment program. Some time early in April 1996, there was a meeting between Mr Smith, Captain Trevor Haworth and some other managers. They discussed differences over the entertainment program and other matters. Details of the meeting are recorded in the statement of Mr Frank Krone, the ship’s engineer (Exhibit R3), and the statement of Mr Smith (Exhibit A2). That evidence, and the oral evidence of the history, suggests the parties (including Mr Smith) agreed he would be replaced in due course. But Mr Smith’s employment was not terminated at that point. The relationship continued to deteriorate. Officers of the respondent decided they could not wait to recruit a replacement. A decision was made to terminate Mr Smith’s employment.
13. The facts surrounding Mr Smith’s removal from the ship on the morning of 27 April 1996 are in dispute. Mr Smith said the process was incredibly distressing. He said he was woken by Captain Chris Bass in the pre-dawn hours. He was told that he should immediately pack as many of his belongings as he could carry because a boat was coming from the mainland to collect him. Mr Smith says he was not told why he had been woken or was being asked to leave the ship. In his oral evidence and in his statement, he said he thought something may have happened to members of his family. He claimed Captain Bass would not tell him what was happening; according to Mr Smith, Captain Bass insisted roughly that Mr Smith pack and leave immediately. Captain Bass told him any belongings he left behind would be sent to him in due course. Mr Smith said Captain Bass refused to provide any information that would reassure him that nothing happened to members of his family.
14. When Mr Smith made his way to the deck a few hours later, he said he saw members of the Fijian crew who were obviously distressed by his removal. He said passengers also looked on. He was bundled into the waiting boat which set out for the shore. He said the shore manager, Mr Bruce Moonie, was brusque. He refused to offer Mr Smith any reassurance about his family. Mr Smith said (Exhibit A2 at [39]) Mr Moonie explained: “You’re out of here. When you’re in, you’re in; when you’re out, you’re out. And don’t try anything because you just won’t win.”
15. Mr Smith was taken to the airport and provided with a ticket home. He said in his statement that he did not have a visa, and he was questioned by immigration officials who apparently threatened to detain him. They did not, and he was allowed to board the flight. Some of his belongings were subsequently delivered to him, although he claims a number of items were never returned.
16. Mr Smith said the incident made him feel “embarrassed and degraded” (Exhibit A2 at [39]).
17. Other witnesses told a different story about the circumstances of Mr Smith’s removal from the ship. The basic facts are not in dispute: he was woken early in the morning and told to pack before being loaded onto a boat that had drawn alongside. He was then transported to the airport. But the other witnesses suggest the departure was handled better than Mr Smith suggests.
18. Commander Semi Koroilavesau was aboard the Reef Escape at the time of Mr Smith’s departure. He was party to the decision to remove the applicant but did not see it occur. He said he was still in bed that morning. His evidence about the background to the decision is nonetheless of interest. Commander Koroilavesau acknowledged that Mr Smith was popular with the indigenous crew. He said he was also concerned that Mr Smith might use that popularity to cause trouble. He said the respondent was worried the local crew might walk if Mr Smith were allowed to stay aboard – hence the decision to remove him early one morning without warning.
19. The evidence – which was consistent with the evidence offered by other witnesses called on behalf of the respondent – suggests the employer had no interest in making the removal any more stressful for Mr Smith than was absolutely necessary. Notwithstanding Mr Smith’s claim that his departure was turned into an “embarrassing and degrading” spectacle, we are satisfied the officers who oversaw the removal were unlikely to be cruel or vindictive in their treatment. They wanted it done cleanly, quickly and quietly.
20. The key evidence from the respondent was provided by Captain Bass. Captain Bass was the officer who actually woke Mr Smith and oversaw the removal. He gave evidence in person at the hearing.
21. Captain Bass said Mr Smith had been an excellent employee in the past. Captain Bass described Mr Smith as a great chef but said Mr Smith had trouble making the transition to hospitality manager. Captain Bass said he was not a party to the decision to sack Mr Smith but agreed to oversee his removal from the Reef Escape in order to avoid trouble with the crew. He added that he was aware Fijian officials from the Department of Marine were keeping an eye on the ship’s operations.
22. According to Captain Bass, the incident unfolded as follows: Captain Bass woke the applicant at about 5 am. The applicant was told he was being discharged and that he would be leaving by boat as soon as he packed some belongings. Captain Bass said the applicant remained calm, although the applicant was obviously unhappy with the decision to terminate his employment and remove him from the vessel. Captain Bass said he did not recall being asked any questions about the safety of the applicant’s family or any other emergency. He painted a picture of a reasonably clinical process.
23. Captain Bass was asked during his appearance before the Tribunal whether there was any possibility that Mr Smith might have been mistaken as to the reasons for the visit. Captain Bass insisted that he made the reasons for his arrival in the cabin clear to the applicant from the outset to avoid any confusion. He acknowledged that Mr Smith would understandably jump to the conclusion that an emergency had occurred if the reasons for the unusual visit were not explained at the outset.
24. Mr Moonie, the shore manager, also gave evidence. He denied making any unkind remarks to Mr Smith. Mr Moonie said the applicant seemed calm as he was taken to the airport. Mr Moonie said the applicant was provided with airline tickets and given assistance with immigration.
25. Mr Waqa Likusuasua, a local crew member, also gave evidence. He agreed that Mr Smith seemed calm as he left the vessel.
26. We have carefully considered the different accounts of this incident. We prefer that of Captain Bass. He gave his evidence in a forthright and truthful way. He was generous in praise of the applicant’s talents. His evidence is consistent with the accounts of Mr Moonie and Mr Likusuasua. We acknowledge these witnesses may have an incentive to offer evidence that favours the respondent given their relationships with the respondent, but we draw comfort from the fact – explained by Commander Koroilavesau and repeated by Captain Bass – that it was not in the employer’s interests to treat Mr Smith badly. They were worried by the potential reaction of the crew and the officials who might see what occurred. Although there is probably no nice way to fire someone and remove them from a ship, the officers of the respondent were unlikely to allow the process to turn into the ugly, hurtful scene Mr Smith described.
27. Mr Smith’s evidence must be treated with caution. We do not doubt he genuinely believed the account he offered, but it was obvious from his demeanour in the witness box that his emotions were complicating his recollection and testimony. That is unsurprising, given his condition. But we are satisfied the evidence offered by Captain Bass offers the better, more reliable explanation of what occurred. We are also satisfied the applicant was not simply abandoned once he was taken from the Reef Escape. We accept he was delivered to the airport and provided with an airline ticket. We are not persuaded there was any difficulty with his visa that would have prevented him from leaving Fiji for Australia.

THE MEDICAL EVIDENCE

28. The applicant had been experiencing psychiatric symptoms prior to his removal from the Reef Escape in 1996. That much is clear from a report by Dr Lev Botvinik dated 7 November 2001 that was prepared in connection with Mr Smith’s earlier application for workers’ compensation in NSW. The report summarised Mr Smith’s medical history. It noted he was seeing a psychiatrist who prescribed anti-depressant medication as early as 1993. The report recorded Mr Smith as saying that he was experiencing a gradual deterioration in his physical and mental state prior to 1996 following the 1991 incident.
29. Dr Botvinik concluded the applicant’s psychiatric conditions were attributable to the 1991 incident. Dr Botvinik’s report suggested Mr Smith apparently did not talk in any detail about what occurred in 1996. Mr Smith argued before us that the report was prepared in connection with his workers’ compensation proceedings so the incident in 1996 was not relevant to the discussion. We think it is inherently unlikely that the 1996 incident would not be mentioned in the course of a thorough investigation like the one that Dr Botvinik appeared to undertake. Either Mr Smith downplayed the effects of the 1996 incident in order to improve his prospects in the workers’ compensation litigation, or else he told the truth – which suggests his pre-occupation with what occurred in 1996 is of more recent origin.
30. The difficulties with Mr Smith’s history were discussed in Dr Greig Richardson’s two reports. Dr Richardson prepared an independent report dated 11 October 2007. He concluded in his original report that the cause of Mr Smith’s current difficulties related to the manner of his dismissal in 1996. Dr Richardson was subsequently provided with Dr Botvinik’s report and statements provided by other witnesses on behalf of the respondent. Dr Richardson withdrew his earlier comments in a report dated 18 August 2008. He said he now believed the applicant’s condition was attributable to the 1991 incident. He added that he thought the applicant was an unreliable historian.
31. We were also provided with reports from the applicant’s doctors. Dr Brian Hutchinson was the applicant’s former treating psychiatrist. In his report of 7 October 2003, Dr Hutchinson recorded the applicant’s account of recurrent memories of being assaulted and being dragged off the vessel and abandoned in a foreign country without assistance. That evidence suggests on its face the applicant’s pre-existing condition was, at a minimum, exacerbated by what occurred in 1996. Dr Zoran Radovic, the applicant’s current psychiatrist, notes the same distressing recollections to similar effect in a report dated 8 August 2005.
32. We are satisfied the medical evidence establishes:
    • The applicant suffers from post traumatic stress disorder (“PTSD”) and depression; and
    • Those conditions were present following the incident in 1991, and were being treated from at least 1993.
33. It follows the applicant’s psychiatric conditions were not caused by anything that occurred in the workplace in 1996. We note in any event that Dr Richardson pointed out the description of the incident could not possibly have satisfied the diagnostic criteria for PTSD. The events as we understand them were simply not of the kind or severity contemplated in DSM-IV.
34. The only question is whether the applicant’s pre-existing condition was aggravated by what occurred in 1996. We note that the aggravation of an ailment may qualify as an injury for the purposes of the Act if the aggravation arose out of, or in the course of, the employee’s work: s 3.
35. Dr Richardson’s report dated 18 August 2008 attributed the applicant’s current conditions to the 1991 incident. He acknowledged in his oral evidence that a person with those conditions might be more vulnerable to subsequent events that are otherwise unexceptional. He said a person with those conditions might certainly misinterpret events and become a poor historian. He did not think the fact that Mr Smith currently experiences nightmares and flashbacks featuring images of his removal from the ship reliably suggested that the 1996 incident was a factor in those nightmares and flashbacks. That phenomenon simply suggested it was a current pre-occupation without telling us anything about the genesis of the condition. He cautioned against simplistic interpretation of dreams.
36. We ultimately favour the evidence of Dr Richardson. He is an independent expert. His independence was demonstrated by the fact that he was initially inclined to support Mr Smith’s claim but changed his view when provided with additional information. Neither Drs Hutchinson nor Radovic were called to give evidence so we were unable to asses whether their status as treating doctors made them more or less likely to provide helpful evidence. We acknowledge it may have been difficult for Dr Radovic to provide forthright evidence given Mr Smith’s agitated state. Our preference for the evidence of Dr Richardson is also based on the fact that Mr Smith is an unreliable historian. Any diagnosis or opinion that is based on a history he provides must be open to question. We were unable to resolve that question because we did not have the opportunity to speak with his current or former treating doctor. In those circumstances, and given the forthright opinion of Dr Richardson, we are not persuaded that the applicant’s condition was aggravated by anything that occurred on the morning of 27 April 1996.

CONCLUSION

37. The applicant is a very sick man. His attempts to participate in the proceedings may have made things worse. Despite our best efforts and the assistance of his friend, Mr Terry Boyce, the proceedings were protracted. That is regrettable. We are also concerned that the news of this decision should be broken to Mr Smith in a way that will not compound his illness.
38. Despite our sympathy for Mr Smith, the findings of fact that we have made mean it is impossible for him to succeed in his application. The decision under review must be affirmed.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr M Denovan, Member.

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

Michael Buckingham, Associate

Dates of Hearing 18-19 August 2008; 15 December 2008;

9 February 2009; and 9 March 2009

Date of Decision 9 October 2009

Advocate for the applicant Mr T Boyce

Solicitor for the applicant Unrepresented

Counsel for the respondent Mr M O’Sullivan

Solicitor for the respondent HWL Ebsworth Lawyers