Wurth and Svitzer Australia Pty Ltd [2011] AATA 339 (20 May 2011)

Last Updated: 23 May 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 339

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2011/1155

GENERAL ADMINISTRATIVE DIVISION		)
	Re		MARK WURTH

Applicant

And

SVITZER AUSTALIA PTY LTD

Respondent

DECISION

Tribunal

Deputy President P E Hack SC

Date 20 May 2011

Place Brisbane

Decision

THE TRIBUNAL Declines to dismiss the application pursuant to s 42B(1)(a). Declines to make a direction under s 42B(1)(b). Directs that the name of the respondent be amended to Svitzer Towage Holdings Limited.

............Signed.................
Deputy President

CATCHWORDS

PRACTICE & PROCEDURE – dismissal as frivolous & vexatious - whether a common law claim is a bar to compensation – proceedings not dismissed

Administrative Appeals Tribunal Act 1975 (Cth) s 42B

Seaman’s Compensation Act 1911 (Cth) s 10A(3)

Seafarers’ Rehabilitation and Compensation Act 1992 (Cth) ss 58

Seafarers’ Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992 (Cth) ss 6, 7

Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535

REASONS FOR DECISION

20 May 2011

Deputy President P E Hack SC

1. The applicant, Mr Mark Wurth, was a seaman aboard MV Sandra Marie on 16 September 1990 when he was injured. He initially received compensation pursuant to the Seaman’s Compensation Act 1911 (Cth). In March 1991 Mr Wurth commenced common law proceedings in the Supreme Court of New South Wales against his employer, Howard Smith Industries Pty Ltd, to recover damages for injuries, loss and damage occasioned by the negligence and breach of statutory duty on the part of his employer.
2. Mr Wurth obtained a judgment[1] of $112,441.20 in September 2000. Although the employer was found to have been negligent (and Mr Wurth was found to be not guilty of contributory negligence) Mr Wurth was dissatisfied with the quantum of the award. He sought to appeal the judgement but required an extension of time because the notice of appeal had not been lodged in time. The application was refused because the Court concluded:

“There is no prospect...that [Mr Wurth] could overturn on appeal the findings as to the injuries and disabilities suffered in and flowing from the September...1990 events”[2].

3. On 29 March 2011 Mr Wurth commenced proceedings in the Tribunal naming Svitzer Australia Pty Ltd as the respondent. He identified a letter from that company dated 3 March 2011 as the decision sought to be reviewed. That letter affirmed an earlier refusal to pay compensation to Mr Wurth on the footing that the award of damages “represented full and final settlement of the matter”.
4. Svitzer Australia has applied to have the proceedings dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth). It submits that I ought be satisfied that Mr Wurth’s application is “frivolous or vexatious”. It answers that description, it is said, because it is bound to fail because s 58 of the Seafarers’ Rehabilitation and Compensation Act 1992 (Cth) is a complete answer to Mr Wurth’s claims for compensation. Svitzer also seeks a direction under s 42B(1)(b) of the Administrative Appeals Tribunal Act that Mr Wurth 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 Sandra Marie on 16 September 1990.
5. To understand Svitzer’s argument it is necessary to consider the general scheme of the Seafarers’ Rehabilitation and Compensation Act. Part 2 of that Act deals with the general entitlement to compensation where an injury results in death, incapacity for work or impairment. Provisions within that part create an entitlement to compensation for property loss, medical and related expenses, funeral expenses and household services.
6. Subject to an exception created by s 55 of the Act, s 54 has the effect that an employee is not entitled to bring an action or other proceedings against the employer in respect of an injury sustained by an employee in the course of employment. Section 55 permits an employee to elect, prior to being paid compensation under ss 39, 40 or 41 of the Act (permanent impairment or other non-economic loss), to institute an action or proceeding against the employer for damages for that non-economic loss. Section 58 is critical to the present application. It provides:

“(1) This section applies if:

(a) an employee recovers damages in respect of an injury to the employee or in respect of the loss of, or damage to, property used by the employee, being an injury, loss or damage in respect of which compensation is payable under this Act; or

(b) damages are recovered by, or for the benefit of, a dependant of a deceased employee in respect of the death of the employee and compensation is payable under this Act in respect of the injury that resulted in that death.

...

(4) Compensation is not payable under this Act to the employee in respect of the injury, loss or damage, or to, or for the benefit of, the dependant in respect of the injury that resulted in the death of the employee, after the date on which the damages were recovered by the employee or by, or for the benefit of, the dependant, as the case may be.

...

(6) Subsection (4) does not apply if the damages were recovered:

(a) as a result of proceedings, or fresh proceedings, instituted by the employer under section 59; or

(b) as a result of proceedings the conduct of which is taken over by the employer under that section; or

(c) as a result of proceedings instituted by the employee as a result of an election by the employee under section 55; or

(d) by way of settlement of those proceedings.”

7. However it is not sufficient to have regard only to the present legislation. The injury of which Mr Wurth complains arose, it would seem, from an incident in September 1990 at which time the Seafarers’ Compensation Act was in force. That Act was repealed by the Seafarers’ Rehabilitation and Compensation (Transitional Provisions and Consequential Amendments) Act 1992[3] (the Transitional Act). By virtue of s 6 of the Transitional Act, the Seafarers’ Rehabilitation and Compensation Act 1992 applies in relation to an injury, loss or damages suffered by an employee, whether before or after the commencing day i.e. 24 June 1993.
8. Section 7(1) of the Transitional Act provides:

“(1) A person is not entitled to compensation under the [Seafarers’ Rehabilitation and Compensation Act 1992] in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage under the repealed Act.”

9. The repealed Act, the Seaman’s Compensation Act, provided in s 10A(3):

“(3) A seaman who recovers damages from an employer in respect of an injury shall not be entitled to compensation or any payment under this Act in respect of the same injury and any sum received by him under this Act in respect of that injury prior to the award of the damages shall be deducted from the amount of the damages recovered from the employer.”

10. The key concept in each provision is that of “injury”. The application by Mr Wurth, and Svitzer’s response to it, requires consideration of the injury for which Mr Wurth recovered damages and a consideration of the injury for which Mr Wurth now seeks compensation.
11. It has been said authoritatively of the expression “injury” when used in the Safety, Rehabilitation and Compensation Act 1988 (Cth), on which the Seafarers’ Rehabilitation and Compensation Act is closely modelled, that it does not mean “workplace accident”, it means “the resultant effect of an incident or ailment upon the employee’s body”[4]. Without the benefit of argument on the point, I propose to assume for present purposes that the term “injury” is to be similarly regarded in the Seafarers’ Rehabilitation and Compensation Act.
12. Included within the material lodged in the Tribunal is the Statement of Claim filed on behalf of Mr Wurth in the Supreme Court of New South Wales. Having identified the workplace incident of 16 September 1990 as the occasion on which Mr Wurth was injured it particularises the injuries as,

“(a) Injury to right arm.

(b) Injury to right shoulder.

(c) Injury to neck.

(d) Injury to back.”

There is, as well, an “Amended Statement Pursuant to Part 9, Rule 27”, a document which I assume was required to be filed in matters involving personal injuries. Included within the list of disabilities are various symptoms of abnormality of mental function – irritability, anxiousness and depression. Mr Wurth’s mental state was obviously an issue in the proceedings when they were heard by Rolfe DCJ: his Honour’s judgment refers to a report of Dr Robert Delaforce, a consultant psychiatrist. That report concluded that Mr Wurth has posttraumatic stress disorder unrelated to his employment. But the reasons for judgment[5] suggest that Mr Wurth’s psychiatric condition was not part of his claim against the defendant.

13. In the course of the hearing Mr Wurth identified the claims for compensation that he wishes to make as claims for “psychiatric damage” and “further problems with the neck and back”.
14. It is plain that injuries to the neck and back formed part of Mr Wurth’s common law claim and, to that extent, Mr Wurth has recovered damages in respect of an injury to his neck and to his back. However what is not presently clear to me is whether the injury, constituted by the “further problems with the neck and back” is the injury i.e. the resultant effect on Mr Wurth’s body, which was the subject of his common law claim. Thus it is not clear that Mr Wurth has recovered damages for the injuries to his back and neck for which he now seeks compensation. It does appear that posttraumatic stress disorder or adjustment disorder, both conditions referred to in the material presently available, were not the subject of the common law claim and on the present state of the material, I cannot be satisfied that Mr Wurth has recovered damages in respect of those injuries.
15. The application by Svitzer raises complex factual and legal issues. They are not apt to be determined in a summary fashion. It is not possible for me, at this juncture, to be satisfied that the claim made by Mr Wurth is bound to fail because it is not clear to me what claims Mr Wurth now makes. Certainly the claim looks unpromising. I would not want Mr Wurth to think otherwise. And he will need to identify, with some precision, what injury or injuries he claims for. It may be that when that exercise is undertaken it becomes apparent that Mr Wurth’s claim is not maintainable, however the respondent has not persuaded me that the claim is bound to fail. I accordingly decline to dismiss the proceedings pursuant to s 42B(1)(a) of the Administrative Appeals Tribunal Act. Necessarily, I decline to make the direction sought under s 42B(1)(b) of that Act.
16. Arrangements will be made to list the matter for a conference with a conference registrar who, no doubt, will take up with Mr Wurth the need to identify the claims that he seeks to make.
17. The submissions of Svitzer point out that Mr Wurth’s employer is now known as Svitzer Towage Holding Limited. The entity named by Mr Wurth in his application is a related entity. I will therefore direct that the name of the respondent be amended to correct this misnomer.
    

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: .....................Signed..............................................

Associate

Date of Hearing 17 May 2011

Date of Decision 20 May 2011

The Applicant was self-represented

Solicitors for the Respondent HWL Ebsworth

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[1] In the District Court. I assume the proceedings were remitted to that Court.
[2] [2001] NSWCA 432 at [7].
[3] No 233 of 1992.
[4] Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 at [10].
[5] At page 49.