FEDERAL COURT OF AUSTRALIA

Pacific Manning Company Pty Ltd v Barton [2003] FCA 498

COMPENSATION – Seafarers Rehabilitation and Compensation Act 1992 (Cth) – application appealing a decision of the Administrative Appeals Tribunal – whether the respondent failed to comply with statutory requirements for notification of injury – whether the Administrative Appeals Tribunal failed to consider the respondent’s capacity for work in suitable employment – whether the Administrative Appeals Tribunal failed to give adequate reasons for its decision – application dismissed.

Administrative Appeals Tribunal Act 1975 (Cth) ss 43, 44

Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss3, 6, 10(4), 26, 31, 32, 62

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 19(4)

Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 cited

Esam v ASP Ship Management (1998) 87 FCR 82 cited

Banks v Comcare Australia (unreported, Federal Court of Australia, Kiefel J, 22 May 1996) cited

Comcare v Luck (1999) 29 AAR 403 cited

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 325 applied

Martin v Australian Postal Corporation [2000] FCA 1646 discussed

PACIFIC MANNING COMPANY PTY LTD v MICHAEL BARTON

No S 27 of 2003

von DOUSSA J

ADELAIDE

22 MAY 2003

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

THE COURT ORDERS THAT:

1.         Application dismissed.

2.         Applicant to pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL

REASONS FOR JUDGMENT

1                     This application is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) against a decision of the Administrative Appeals Tribunal (the Tribunal) which awarded compensation to the respondent, an employee of the applicant, under the Seafarers Rehabilitation and Compensation Act 1992 (Cth)(the SRC Act) in respect of claims made by him for a lower back injury and a psychiatric injury.  Section 44 provides for an appeal to this Court on a question of law.  The questions of law raised by the application concern the procedural requirements of the SRC Act for notification of injury, and alleged failures by the Tribunal to give adequate reasons for its decision. 

2                     The applicant, who I shall refer to as the employer, operates a fleet of coastal vessels including the ‘Pacific Conqueror’ in which the respondent was employed as a merchant seaman.  The ‘Pacific Conqueror’ is a vessel of approximately 1,600 tonnes with a crew of nine.  At relevant times it serviced oil drilling rigs in the Timor Sea with fuel and other supplies.  The respondent worked aboard the vessel from 2 November 1994 until 18 November 1998.  His roster or ‘swing’ required him to rotate between work on board for five weeks, followed by five weeks shore leave.

3                     The decision of the Tribunal determined two applications for review.  The first application sought review of a decision of the employer dated 6 July 1999 which affirmed an earlier determination dated 27 January 1999 to not accept the respondent’s claim for compensation for ‘occupational stress and lower back pain’.  The second application sought review of the employer’s decision dated 11 July 2000 to affirm a determination dated 1 June 2000 refusing the respondent’s claims for compensation for permanent injury.

4                     The decision of the Tribunal against which the appeal is brought is as follows:

‘The decisions under review are set aside, and the matter is remitted to the respondent for the calculation of the compensation payable to the applicant, in accordance with the following findings:

i)                    the applicant suffered injury to his lower back in the course of his employment with the respondent, with that injury occurring by 18 November 1998; 

ii)                  the applicant suffered psychiatric injury in the course of his employment with the respondent, with that injury occurring by 18 November 1998; 

iii)                the applicant’s injuries entirely incapacitated him for work.  Such incapacity continued at the date of hearing.  Since becoming incapacitated, the applicant had been unable to obtain suitable employment up to and including the date of hearing.  Pursuant to s31 of the Seafarers Rehabilitation and Compensation Act 1992, the applicant is entitled [to] compensation at the rate of his normal weekly earnings for the first 45 weeks following his becoming incapacitated, and at the rate of 75% of his normal weekly earnings thereafter; 

iv)                the applicant suffered a permanent impairment of 10% under the applicable Guide as a consequence of his compensable lower back injury;

v)                  the applicant suffered a permanent impairment of 15% under the applicable Guide as a consequence of his compensable psychiatric injury;  and

vi)                the applicant has suffered non-economic loss as a result of his permanent impairments, giving rise to a combined impairment score of ‘5’ under Table 5 of Part B of the applicable Guide.

The respondent is to pay the costs of the applicant.  In the absence of agreement between the parties, costs are to be taxed by the Tribunal.’

5                     On the hearing of this application senior counsel for the employer confined the application to four alleged errors of law.  A further complaint in the application, that the respondent had not made a claim for compensation in the manner required by s 63 of the SRC Act, was abandoned.  The four errors of law alleged are:

(1)        the Tribunal erred in law in its approach to the application of s 62 of the SRC Act. 

(2)        the Tribunal erred in law in failing to give adequate reasons and findings as to the injuries said to have been suffered by the respondent.

(3)        the Tribunal erred in law in failing to consider and deal with the evidence of capacity for work and in failing to consider suitable employment under s 32(e) of the SRC Act. 

(4)        the Tribunal erred in law in failing to give any or sufficient reasons for its determination of permanency which finding was unreasonable on the evidence.

In the formulation of these alleged errors of law, the reference to ‘injury’ is to be understood as a reference both to the lower back injury and the psychiatric injury found by the Tribunal. 

Background

6                     The respondent was born in England on 17 July 1949.  He emigrated to Australia with his family in 1958.  At the time of the hearing before the Tribunal he was aged fifty-three.  He completed grade seven primary school in South Australia but did not undertake any secondary schooling.  Due to learning difficulties, he completed primary school at the age of approximately 15 years.  Upon finishing his schooling he registered with a ship master and commenced seafaring as a deck boy in 1966, aged 16 years.  From then until November 1998 he worked on various vessels including cargo ships, ferries, bulk carriers, tankers, tugs and oil rig supply vessels.  He achieved the rank of able seaman.  The respondent has not worked since he completed a ‘swing’ on the ‘Pacific Conqueror’ on 18 November 1998. 

7                     Before the Tribunal he claimed that he had been incapacitated by reason of the two injuries found by the Tribunal.  In his evidence the respondent described his injuries as occurring gradually.  It is clear that he intended to convey that his degree of suffering and incapacity for work progressed gradually. 

8                     Relevant to the psychiatric injury, the respondent gave evidence that the ‘Pacific Conqueror’ was a smaller, noisier and less clean vessel than others that he had previously worked on.  He said that increasingly with the passage of time in performing his duties on the ‘Pacific Conqueror’ he began to experience anxiety, agitation and a feeling of being confined and isolated.  He said his cabin was very small, 2.6 metres long by 2 metres wide with an ensuite that was 2 feet by 3 feet consisting of a shower and a toilet.  He normally worked a morning and an evening shift between 8 am and 12 noon, and 8 pm to 12 midnight.  Between the morning and evening shifts he was supposed to be resting, however, he said it was impossible to sleep on account of the noise and heat in his cabin.  He would generally spend the time in his cabin reading magazines on woodwork and learning to play a keyboard.  He spent considerable periods of time just lying on his bed doing nothing.  During a ‘rig call’ when the vessel was at a drilling rig he said there was considerable noise from the bow thruster located beneath the accommodation section and from the anchor chain and winch immediately outside his cabin.  He said the airconditioning would break down at least once in a five week swing, usually for an hour or two.  If this happened when he was sleeping, his cabin became very hot and humid.  The heat aggravated a psoriasis condition from which he suffered.  He was also disturbed by a general fire alarm which would sound about twice per swing, being set off by the heat.  He was also disturbed by noise caused by routine maintenance work by other members of the crew carrying out hammering and chipping.

9                     During his time on the ‘Pacific Conqueror’ the respondent became concerned about risks to his safety.  When delivering cargo to an oil rig he was required to work on the stern of the ship which was an open platform without guard rails.  The deck was slippery and often flooded with water as waves crashed over the stern.  He was required to wear steel cap boots, overalls, a hard hat, eye protection and a life jacket.  He became afraid of falling overboard.  He also became afraid of the possibility of wires and ropes holding cargo suspended overhead breaking.  He developed a fear of accidents, and in evidence recited three incidents which had occurred on the vessel where he felt his personal safety or life had been at risk.

10                  The respondent said that he began to first experience symptoms of anxiety and feeling confined in about 1996.  He said these feelings caused him to be depressed, irritable, frustrated and anxious, and these feelings would increase as each swing progressed.  He said he did not consult a medical practitioner during that period or prior to late 1998 because he had hoped that he would recover from the symptoms he was experiencing.  However, he said that his libido decreased and he became withdrawn.

11                  Before the Tribunal, the employer contested the respondent’s evidence about his work environment, and about the cause of his anxiety.  In particular, the employer contended that whatever anxiety the respondent had suffered, was due to disciplinary action that had been taken against him over his years as a seaman.  He had been logged for misconduct in 1975 whilst on board the ‘Nancy Heath’.  An initial decision to sack him was later reduced to a warning, and the respondent served a further five years on that vessel.  In 1991, whilst aboard the ‘Sandra Marie’, the respondent was involved in an altercation with the Chief Officer who it was claimed he had assaulted.  That matter was referred to the Marine Council, and the union became involved on his behalf.  He said he was aggrieved by the allegations that were made against him.  The outcome of this incident is not entirely clear, but the respondent said he thereafter worked on various other vessels and the industrial issues which had arisen on the ‘Sandra Marie’ had no bearing on his later employment.  The respondent had also been involved in two disciplinary incidents aboard the ‘Pacific Conqueror’.  One incident involved an altercation with the Captain of the ship in relation to an argument with the Chief Officer about the respondent not finishing his watch.  That led to a formal warning and a reference to the Marine Council which reported that the respondent could be excluded from the maritime industry if he breached the code of conduct again.  The second incident involved the respondent being unable to be roused for a watch due to intoxication in September 1997.  He said that he had gone ashore and consumed several beers as the weather was hot.  He went to sleep when he returned to the vessel and the Captain was unable to wake him for his watch.  He said he was extremely embarrassed about that incident.  He had apologised to the Captain, and received a written warning.  He said he was happy with the way in which the Captain dealt with the situation.  The respondent denied that these disciplinary matters were the cause of his anxiety which he attributed to the work environment on the ‘Pacific Conqueror’.  Evidence led from the employer’s witnesses largely corroborated the complaints about the environment which the respondent made, particularly as to noise, occasional breakdowns of the airconditioning and false fire alarms.  Notably, the respondent’s witnesses made light of the noise problem on the vessel by saying that they were issued with ear plugs to assist their sleeping.

12                  Relevant to the lower back injury, the respondent gave oral evidence before the Tribunal about three incidents which had occurred on the ‘Pacific Conqueror’ in August 1998 during a swing that commenced on 5 August 1998 and ended on 11 September 1998.  It is convenient to refer to these incidents as ‘the shackle incident’, ‘the bunk incident’ and ‘the soap incident’.  The respondent was unable to specify the precise date of these incidents, but said the bunk incident and the soap incident occurred the day after the shackle incident, and all occurred in August 1998.  The respondent had not hitherto suffered symptoms of a back injury.  The shackle incident occurred when he was lifting heavy shackles, which weighed 20 to 30 kilograms, from the floor level to waist height in order to put them on a rack.  He felt a dull ache in his lower back as he leaned forward with his arms outstretched to place the shackles on the rack.  He did not tell anyone about that incident because the dull ache which he experienced went away almost immediately and he continued with his normal duties of general cleaning and maintenance for the next two hours until his shift ended.  Following his eight hour break he completed the evening watch on the bridge listening to a two-way radio, and went to bed at midnight.

13                  The following morning the respondent was lying down on his bunk when called to his watch.  He got up and twisted around to a sitting position on the side of his bunk, and turned as he jumped about 85 centimetres to the floor.  He said that whilst doing that he felt a ‘sharp pain’ or ‘twinge’ in his spine in the same area as he had experienced the dull ache the day before.  He lay down for about 20 minutes and the pain went away.  There was ‘just an ache’ similar to the dull ache he had felt during the shackle incident.  He went down to breakfast but said nothing to any of the crew as the pain had gone away.  After breakfast the respondent worked on deck, and whilst doing so picked up a drum of liquid soap.  He said ‘I felt another twinge again’.  He said the pain lasted about ten minutes during which time he walked around the deck.  The pain went away and he went on with his normal duties.  As the pain went away he did not report the soap incident.

14                  During the balance of the swing the respondent carried out his normal duties, although avoiding heavy activity.  During the five week shore break that followed, he said that he continued to avoid physical activity as he was still experiencing occasional aches in his low back region.  In a written statement of evidence received by the Tribunal he said:

‘These symptoms were together with anxiety depression and a fear of going back to the confined spaces of the Pacific Conqueror.  These symptoms were the focus of my attention.  Also at this time I recall having increasing sleeplessness at night and a lack of appetite.  I had noticed that my sleeplessness had increased … I told my partner Maggie about the lower back incident.  I did not see a doctor as I hoped I would recover.’

15                  The respondent returned to the ‘Pacific Conqueror’ for his next swing on 15 October 1998.  He carried out his normal duties but said that every time he picked up something heavy the dull ache would return, but because the pain kept coming and going whilst he was working he thought it would just go away with time, so he did not report it to anyone.  The swing ended on 18 November 1998.  He left the vessel in northern Australia, probably in Darwin, and returned to Adelaide.  As he left the vessel he said ‘good-bye’ to Mr G W Steve, the mate.  There is no specific finding as to what else was said.  The respondent says that he told Mr Steve that he was unable to cope with his work any longer and would not be returning.  Mr Steve says the respondent said that he would not be returning as there was no longer any fun in being at sea and not enough time spent in ports on the ‘Pacific Conqueror’.  On either version, the respondent was expressing the view that he would not be returning.

16                  The respondent says that his symptoms of pain and anxiety became worse once he returned to Adelaide, and he consulted his general practitioner, Dr Tan, on 30 November 1998.  Dr Tan prepared a medical certificate on a South Australian WorkCover form, which he gave to the respondent.  The certificate was headed ‘Workers Compensation Medical Certificate’.  Details recorded on the certificate are significant.  Under the heading ‘Worker’s Particulars’, the respondent’s name and date of birth were recorded along with the name of the employer.  The date of the examination was recorded.  The ‘stated date of injury’ was noted as ‘8.98’, and the ‘onset of symptoms’ was recorded as ‘8.98’.  Under the heading ‘Clinical Diagnosis’ the examination was recorded as ‘initial’ and Dr Tan expressed his opinion that the respondent was suffering from ‘1.  Occupational Stress & Depression.  2.  Lower Back Injury.’  The certificate recorded that the worker said that this was caused by ‘Work Injury & Conditions’.  Incapacity for work was certified from 30 November 1998 to 4 December 1998. 

17                  The respondent gave evidence that he immediately posted the certificate to the employer.  Whilst there is no specific finding by the Tribunal that this happened, it is clear on the evidence and implicit in the Tribunal’s findings that it did occur.  The Tribunal said it accepted the evidence of the respondent.  Further, the employer’s manager, Mr Hernden, gave evidence that he received a medical certificate from the respondent in early December 1998, having been informed by one of his staff shortly beforehand, in late November or early December 1998, that the respondent had informed the employer that he would not be returning to work.  This advice was received when the staff member telephoned the respondent to arrange travel back to the vessel when his shore leave came to an end.  The respondent gave evidence that he had told the staff member that he was unfit for work.  (He also gave evidence that he told the staff member that he had three medical certificates.  If this was so, the conversation would have been in December.) 

18                  On 17 December 1998 the respondent forwarded to the employer a document headed ‘Notice of Work Related Injury’.  This document was again a South Australian WorkCover form prescribed for giving notice of injury by an employee to an employer.  The form recorded the personal details of the respondent.  In answer to the question, ‘What injury/disease did you suffer?’ the respondent said ‘INDUSTRIAL STRESS & BACK PAIN & DEPRESSION’.  In answer to the question, ‘When did your injury happen or when did you first notice the injury/disease?’ the respondent said ‘/8/98’.  Under the heading in the document ‘WHAT HAPPENED?’, the following questions and answers are recorded: 

‘What were you doing at the time?

WORKING – LIVING ON A RIG SUPPLY VESSEL. 

What led to the injury or disease?

CONSTANT ISOLATION, CONFINEMENT AND BOARDOM [sic].

What exactly caused the injury or disease?

SLEEP DEPRIVATION DUE TO BOW THRUSTERS, ANCHORS, A/C BREAKING DOWN, FAULSE [sic] ALARM BELL, CHIPPING, HAMMERING.’

19                  The employer acknowledged receipt of this document by letter dated 23 December 1998, and asked the respondent to complete an enclosed SRC Act claim form.  The letter said:

‘Upon receipt of your claim we will consider the matter further.  Please advise us of the date of your alleged injury, the date on which you reported it and the name of the person to whom you made the report.’

20                  The respondent completed the SRC Act claim form, again answering a question ‘When did your injury happen or when did you first notice your illness?’ by saying ‘8.98’.  In answer to the question ‘How did the injury/illness happen?’, the respondent said ‘OVER A CONTINUOUS PERIOD OF TIME DOING HEAVY LIFTING AND LIVING IN A CONFINED SPACE’.

21                  By letter dated 8 January 1999 the employer acknowledged receiving the SRC Act claim form and said:

‘Before we can make a determination in this matter, please advise us of the following:

1.                  the date of your alleged injury

2.                  the name of the person to whom you reported the alleged injury

3.                  the date you reported the alleged injury

This information was previously requested by us in our letter to you dated 23/12/98.  Could you also advise us if an incident report has been completed.  In addition please advise us if a long [sic] entry was made.’

22                  On 13 January 1999 the respondent wrote to the employer saying:

‘Refering [sic] to your letter dated 8th Jan 99.  I cannot give an exact date of my occupational stress because it has been an ongoing thing for some time and the back pain has also been a gradual thing wich [sic] I can only put down to constant bending down and heavy lifting over the last several months.  It wasn’t till approx. 2 weeks into my leave that these things started to deteriate [sic] rapidly to a condition where I had to seek medical help, so none of the above was reported to a particular person at a spacific [sic] date, so no log entry was made. 

Yours faithfully

M. Barton’

23                  On 27 January 1999 the employer advised the respondent that it was unable to accept his claim for a variety of reasons including that there was no written notice of injury as required by s 62 of the SRC Act.

Notification under s 62 of the SRC Act

24                  The employer maintained the contention that the respondent failed to give notice of injury as required by s 62 of the SRC Act before the Tribunal, and before this Court.  In developing that contention the employer argued that the respondent had a strict requirement for reporting incidents that occurred on board its vessels;  this requirement was well known to the respondent and the requirement was not fulfilled.  The breach of the employer’s reporting requirements were said to be relevant both to the knowledge of the respondent that injuries must be notified immediately when they happen, and to the credit of the respondent.  It was argued that the Tribunal should reject the respondent’s evidence about the three incidents leading to back pain in August 1998 as the incidents were not reported to the employer or the Master of the vessel at the time, and were not articulated by the respondent in his letter to the employer dated 13 January 1999.  The first identification of particular incidents in August 1998 given by the respondent was to an orthopaedic surgeon, Mr George Potter, to whom the respondent was referred for a medico-legal report in April 2001 (and even then only the bunk incident and the soap incident were mentioned). 

25                  The evidence about the respondent’s reporting requirements, however, did not go so far as counsel’s submissions would suggest.  The requirement of the employer’s system which was put to the respondent in cross-examination was that he was required to report ‘having suffered a disability’.  Mr Hernden also gave evidence that the applicant had ‘a procedure for recording any disability suffered in the course of the employment’.  The following exchange occurred between the cross-examiner and the respondent:

‘So you do know that there is a requirement for seafarers on vessels to report incidents straight away? --- Yes.

You usually complied with that requirement? --- Yes, if it interferes with my work, yes.

So if it interferes with your work you report it and in this case you didn’t report because the pain went away immediately? --- Yes.’

26                  A failure by the respondent to report a pain that went away without causing disability in a practical sense would not be a breach of a requirement to report a ‘disability’.  That the employer’s requirement was so understood is borne out by the evidence of one of the employer’s witnesses, Mr A W Vinnicombe, who was the Chief Engineer on the ‘Pacific Conqueror’.  His evidence on this topic was:

‘Have you ever had any incidents where you’ve fallen over in the engine room, minor incidents? --- Yes, there’d be times when I’ve staggered against things because of the roll of the boat and such luck.

Those minor incidents, do you report those? --- Not if it’s just – unless I’ve injured myself.

What if you just bump your arm and you’ve got a bit of a bruise.  You wouldn’t report that? --- I probably should do, but I didn’t.  I wouldn’t.

You would be reporting every two minutes I expect in rough weather if that was the case? --- No, because you’re not bruising yourself every couple of minutes.  There are – you don’t report yourself for minor injuries.  If you do something serious that’s going to incapacitate you then you are going to report it or you should do.’

27                  It is convenient at this point to deal with the employer’s contention that the Tribunal erred in law in its approach to the application of s 62 of the SRC Act.  Sections of the SRC Act relevant to the employer’s contention are:

‘3         General definitions

            …

            injury means:

(a)       a disease;  or

(b)               an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment;  or

(c)               an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;

            but does not include anything suffered by an employee as a result of reasonable disciplinary action taken against the employee, or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment. 

            …

6                    Injuries suffered by employees

A reference in this Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee for which compensation is payable under this Act.

…

26                 Compensation for injuries

(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. 

(2)               …

(3)               …

            …

62                Notice of injury or loss of, or damage to, property

(1)        Subject to subsection (2), this Act does not apply to an injury suffered by an employee unless a written notice of the injury is given to the employer:

(a)                   as soon as practicable after the employee becomes aware of the injury;  or

(b)                   if the employee dies without having become so aware or before it is practicable to serve such a notice – as soon as practicable after the employee’s death.

            (2)       …

            (3)       For the purposes of subsections (1) and (2), if the injury was suffered by an employee on a prescribed ship, a notice given to the master of the ship is taken to be given to the employer. 

            (4)       If:

                       (a)        a written notice, purporting to be a notice under this section, has been given to an employer;  and

                       (b)        the notice, or the giving of the notice, does not comply with this section;

                       the notice is taken to have been given under this section if:

                       (c)        the employer to whom it was given would not thereby be prejudiced;  or

                       (d)        the non-compliance resulted from the death, or absence from Australia, of a person, or from ignorance, or mistake, or any other reasonable cause.’

28                  The first point to be stressed is that, under s 62, the SRC Act does not apply if a notice as required by the Act is not given.  It is beside the point that the employee may not have given a notice of disability or complied with some other reporting procedure independently required by the employer as part of the employer’s system of work.  If the notice of injury given by the respondent fulfils the requirements of s 62 he is entitled to compensation even if he were otherwise in breach of some other reporting requirement laid down by the employer. 

29                  The Tribunal delivered long reasons for its decision which canvassed at length evidence led by the parties.  At par 209 of the reasons, the Tribunal addressed the question whether the respondent had complied with s 62 of the Act.  The Tribunal said:

‘The Tribunal is satisfied that the applicant was not consistent in his approach to the respondent concerning his various conditions.  His reporting of incidents as they occurred seems to be less than accurate.  The Tribunal is satisfied that such was not deliberate nor with intent but rather within the character of the applicant who did not comply with the requirement of written notice.  The Tribunal is satisfied that he erred by either informing his seniors verbally or by bringing it to the respondent’s attention through medical certificates after having been examined by a doctor.  The Tribunal is satisfied on the evidence before it that the applicant, however, did not comply with the written requirement.  Notwithstanding this, subsection 62(1)(a) refers to such notice being given as soon as practicable after the employee becomes aware of the injury.  On the evidence before the Tribunal the explanation given by the applicant is feasible and acceptable.  The attendance by the applicant for medical treatment and the ultimate notice and claim (T7/24-29) for back injury and anxiety (S1999/346) occurred in the view of the Tribunal within a time span that can be said to be “as soon as practicable”.  The Tribunal is satisfied that such is the case and hence appropriate notice was given.’

30                  Unfortunately this paragraph of the reasons is confused, difficult to understand, and at first sight appears to contain inconsistent findings. 

31                  The employer contends that whatever else might be said about the paragraph, there is a finding that the respondent did not comply with the requirement to give written notice, hence the Tribunal should have found that the SRC Act did not apply to the respondent.

32                  I am unable to accept this interpretation of the Tribunal’s reasons.  When par 209 is read as a whole, I do not think that it can be construed as finding that notice complying with s 62 was not given.  On the contrary, it concludes with a finding that the notice did comply. 

33                  I break the paragraph down into sections.  I have great difficulty assigning a particular meaning to the first three sentences of the paragraph.  The first sentence refers to the respondent’s various conditions.  This could refer to his two medical ‘conditions’, the subject of the claims before the Tribunal, or it could refer more generally to incidents and other injuries experienced by the respondent in the course of his employment on the ‘Pacific Conqueror’, including minor injuries that had not been reported in the past.  The reference to the character of the respondent is, I think, a reference to his view that reporting of minor incidents could be overlooked.

34                  Then the Tribunal says that it is satisfied that the respondent ‘erred by either informing his seniors verbally or by bringing it to the respondent’s attention through medical certificates after having been examined by a doctor’.  Counsel for the employer suggested that this passage reflects a typing error in that the word ‘not’ before ‘informing his seniors’ has been omitted.  I do not think that is so.  Rather, I think the meaning of the sentence is that the Tribunal is satisfied that the respondent erred in one of two ways, either by informing his seniors, that is the officer who telephoned him to enquire about his future travel arrangements (the respondent also said that he verbally told Mr Hernden at about the same time) that he was unfit and would not be returning;  or by bringing his injury to the employer’s attention simply by sending medical certificates (the certificate of 30 November 1998, and two others that were received in the following days from Dr Tan) without at the same time giving a more formal notice of injury.

35                  I have already indicated that I do not think the next sentence, stating that the Tribunal is satisfied on the evidence before it that the respondent did not comply with ‘the written requirement’ cannot be taken literally to mean that s 62 was not complied with.  Perhaps the sentence is intended to complement the sentence that precedes it, and to convey no more than that the verbal notice to his seniors, and the posting of medical certificates was not accompanied by a written notice of injury.  This construction of the paragraph receives some support from the reference in the penultimate sentence to ‘the ultimate notice’ which implies that some earlier notice, though not in writing, had been given. 

36                  The last four sentences of the paragraph address directly the requirement of s 62(1)(a) of the SRC Act.  I shall return to consider those sentences shortly, but before doing so I think it is helpful to consider what is required by the relevant provisions of the SRC Act. 

37                  Subsection 62(1)(a) must be read with other definitional sections in the Act.  For example, ‘injury’ is defined in s 3.  The obligation to give notice of injury is not an obligation to give notice as soon as practicable after the happening of an injury which meets that definition.  On the contrary, the obligation to give notice only commences to run when the employee becomes aware of the injury.  In context, the ‘injury’ referred to in s 62(1)(a) is the injury referred to in the opening words of s 62(1), namely ‘an injury suffered by an employee’.  Section 6 provides that a reference in the Act to an injury suffered by an employee is, unless the contrary intention appears, a reference to an injury suffered by the employee for which compensation is payable under the Act.  Relevantly, compensation is not payable simply for a physiological or mental condition that meets the requirements of the definition of ‘injury’ in s 3.  There must also be incapacity for work or impairment before compensation is payable:  s 26.  In my opinion there is nothing in or about s 62 that indicates an intention that s 6 is not to the reference in s 62 to an injury suffered by an employee.  On the contrary, the Act is remedial in nature and should be given a beneficial construction:  see Wilson v Wilson’s Tile Works Pty Ltd (1960) 104 CLR 328 at 335 and Esam v ASP Ship Management (1998) 87 FCR 82 at 85.  If s 62(1) is read with s 6, a construction is achieved where the employee is not required to give notice of minor cuts, aches and pains which the employee at the time thinks are unlikely to cause any incapacity for work or impairment.  The notice requirement then takes on a practical, realistic operation, namely that employees are required to give notice where and when they are aware that they have suffered an injury that causes incapacity for work or impairment and therefore attracts the benefits of the Act.

38                  In the present case the Tribunal has found that the respondent has suffered injury to his lower back and psychiatric injury ‘by 18 November 1998’.  In my opinion that finding is supported by the evidence, and is readily understandable.  The respondent continued his normal work until that day.  He did not give evidence of suffering any particular incident of aggravation of either condition during the last swing.  Rather, the import of his evidence is that he felt his ability to perform his work was progressively becoming more difficult.  The fact that he said good-bye to Mr Steve on the last day provided evidence that by then the respondent had become aware that he would not be fit to return to the vessel.

39                  On the assumption that the respondent relevantly became aware of his injury or injuries on or about 18 November 1998, the last four sentences of par 209 of the Tribunal’s reasons are readily understandable.  Delay in giving notice occurred between 18 November and 30 November 1998.  However, during that time the respondent was required to return from Northern Australia to Adelaide, and having returned, he deferred doing anything, including seeking medical assistance, until his condition further deteriorated.  Then, having seen the doctor, instead of giving formal notice which strictly complied with s 62(1), he simply forwarded the first medical certificate, and subsequent medical certificates, to his employer.  He also gave verbal notice to his employer of his unfitness for work.  A notice of injury, although on a WorkCover form was given on or about 17 December 1998, and at the employer’s request, a further notice of injury on a SRC Act form was given on or about 5 January 1999.  It is to those facts which I think the Tribunal is referring when it concluded that ‘The attendance by the applicant for medical treatment and the ultimate notice and claim for back injury and anxiety (s 1999/346) occurred … within a time span that can be said to be “as soon as practicable”’.  On that construction of par 209 of the reasons, I consider the conclusion reached by the Tribunal was plainly open.  Indeed, I do not think that any other conclusion could be supported.  I did not understand counsel for the employer to argue otherwise.  Rather, counsel attacked the assumption that the respondent did not become aware of the injury within the meaning of s 62(1)(a) until about 18 November 1998. 

40                  The primary argument for the employer was that the evidence of the respondent that he suffered the three lower back incidents in August 1998, and his evidence about the cause of his stress and anxiety, should not be believed.  In relation to the August 1998 incidents, it was argued that as he made no reference to them in his letter to the employer on 13 January 1999, the only reasonable conclusion, to which the Tribunal should have come, was that the August 1998 incidents had been made up much later in time to support the compensation claim.  The employer further argued that the rejection of the respondent’s evidence for the reason just given should carry with it the rejection of his explanation for his stress and anxiety.  It was also said that the respondent’s evidence about his work environment was not borne out by the witnesses called by the employer.  It will be necessary to refer to this aspect of the employer’s case, and the Tribunal’s disposal of it, when discussing the next ground of appeal.

41                  The employer’s argument based on s 62(1)(a) was, in a sense, secondary as it only arose if, contrary to the primary submission, a finding were made that the respondent had suffered an injury.  In this event, the employer argued that the Tribunal should have concluded on the factual evidence that the respondent became aware of his injury for the purpose of s 62(1)(a) in August 1998 when the incidents occurred because, at that time, he was aware of pain in his back.  Whilst this limb of the employer’s arguments did not deal specifically with the stress claim, presumably, it is to be inferred that the Tribunal should have found that long before 18 November 1998 the respondent was aware of his stress and anxiety symptoms. 

42                  Counsel for the employer pointed out, correctly in my view, that the Tribunal did not purport to reach the conclusion which it did about notice under s 62, by the application of the provisions of s 62(4).  It was said that before the Tribunal no issue was raised as to whether the employer would have been prejudiced by delay should the notice have been given in August 1998, nor was there any issue raised as to whether a failure to give notice in August 1998 was due to ignorance, mistake or any other reasonable cause.  This appears to be the case, although I note that a passing reference to these topics and to s 62(4) was made by counsel for the respondent in her reply.  Be that as it may, plainly the Tribunal did not base its conclusions on s 62(4), and if on this appeal the other contentions of the employer succeed, the proper course would be to send the matter back to the Tribunal for reconsideration.  This is so even though, on the evidence, there may be a strong case for the application of s 62(4):  see JO Ballard & P Sutherland, Annotated Safety, Rehabilitation and Compensation Act 1988, 5^th ed, at par 53.03 to 53.07and Banks v Comcare Australia (unreported, Federal Court of Australia, Kiefel J, 22 May 1996) dealing with an equivalent statutory provision.

43                  However, I do not think that the employer has made good its contention before this Court that the Tribunal should have held that the respondent, within the meaning of s 62(1)(a), became aware of the injury in August 1998.  At that time he was aware of a transitory sharp pain, and a period of dull aching, but was able to continue with his work.  He was not at that time incapacitated.  Had he sought to make a claim in or about August 1998 in respect of one or all of the August 1998 incidents, his claim would have failed as he suffered no incapacity.  For the reasons already given, I think the evidence before the Tribunal fully supported a conclusion that the respondent did not relevantly become aware of the injury until about 18 November 1998.  I think such a conclusion is implicit in the conclusion reached by the Tribunal in par 209 that notice was given as soon as practicable. 

44                  No reference is made by the Tribunal, or by counsel, to s 10(4) of the SRC Act which is a deeming provision in relation to diseases.  That section provides:

‘(4)      If:

            (a)        an employee suffers an injury (other than one resulting in a hearing impairment);  and

            (b)        the injury is a disease or an aggravation of a disease;

            the employee is taken, for the purposes of this Act, to have suffered the injury on the day when:

            (c)        the employee first sought medical treatment for the disease or aggravation;  or 

            (d)        the disease or aggravation resulted in the death of the employee or first resulted in his or her impairment or incapacity for work; 

whichever happens first.’

The evidence would seem to support the conclusion that the claim for stress and anxiety is a claim for an aggravation of a disease, so that, for the purposes of the Act, the relevant ‘injury’ would be taken to have been suffered on or about 30 November 1998 when the respondent first sought medical treatment, or possibly, under s 10(4)(d) on or shortly after 18 November 1998 when he last worked. 

45                  There is no inconsistency between, on the one hand, a conclusion that for the purpose of s 62(1)(a) the respondent did not become aware of the injury until about 18 November 1998, and, on the other hand, the statements reported in Dr Tan’s medical certificate of 30 November 1998 and the documents completed by the respondent at about that time that his injury happened or he first noticed his illness at ‘8/98’.  With the benefit of hindsight the transitory sharp pains experienced in August 1998 indicate the happening of an injury, but do not indicate when the respondent became aware of the injury for the purpose of giving notice under s 62(1)(a). 

46                  Counsel for the employer baldly asserted that the WorkCover form of notice of injury forwarded to the employer on 17 December 1998 was not a notice of injury.  Why that should be so was not explained and I am unable to construe the document other than as a notice of injury.  Further, it was then contended that the SRC Act form submitted on about 8 January 1999 was not a notice of injury because it was a notice of claim under s 63.  In my opinion a notice of claim can also constitute a notice of injury.  An argument to the contrary, similar to that advanced by the employer in this case, was rejected by French J in Comcare v Luck (1999) 29 AAR 403 at [60] and [61].

47                  For these reasons I consider that the Tribunal did not fall into error of law in finding that notice of injury was given under s 62. 

Adequacy of the Tribunal’s Reasons and Findings

48                  The next error of law alleged is that the Tribunal failed to give adequate reasons and findings as to the injuries said to have been suffered by the respondent.  The employer contends that there were inconsistencies within information given by the respondent, to be found in his letter of 13 January 1999 to the employer, in accounts that he gave about relevant events to medical practitioners, and in his evidence.  Further, it is contended that there were inconsistencies between the respondent’s evidence, and that given by the employer’s witnesses, particularly relating to the work environment.  The employer contends that the Tribunal erred in law in failing to closely analyse these inconsistencies, and to give expansive reasons why such inconsistencies did not lead to rejection of the respondent’s evidence.  Further, the Tribunal, for reasons which appear below, rejected the evidence of the psychiatrist called by the employer, Dr L D Terace.  Dr Terace gave evidence that in his opinion Mr Barton in the past had met the criteria for a panic disorder, a recognised psychiatric condition.  He considered that the condition was predominantly the product of inherent personality and constitutional vulnerability, but in part due to the disciplinary processes to which the respondent had been subjected.  He did not ascribe aspects of the work environment as a cause of the psychiatric condition.  The employer contends that even though Dr Terace’s evidence was rejected, it was incumbent upon the Tribunal to analyse his evidence on the issue of reasonable disciplinary action.  The failure to do so constituted an error of law. 

49                  The obligation of the Tribunal to give reasons is prescribed by s 43 of the AAT Act.  Section 43(2) generally requires reasons to be given.  Section 43(2B) provides:

‘Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.’

50                  The obligations imposed on the Tribunal are, in substance, similar to those imposed on the Refugee Review Tribunal under s 430(1) of the Migration Act 1958 (Cth).  In respect of that section the majority of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 325 at [68] said:

‘In its terms, it requires no more than that the Tribunal set out the findings which it did make.  Neither expressly nor impliedly does this section require the Tribunal to make, and then set out, some findings additional to those which it actually made … A requirement to set out findings and reasons focuses upon the subjective thought processes of the decision-maker.  All that s 430(1)(c) obliges the Tribunal to do is set out its findings on those questions of fact which it considered to be material to the decision which it made and to the reasons it had for reaching that decision.’

51                  In my opinion, the Tribunal has made clear its thought process in expressing its reasons for arriving at conclusions in favour of the respondent’s claim.  It has accepted the essential parts of the oral evidence given by the respondent.  In doing so, the Tribunal referred to the educational and work background of the respondent and said that it took that into account.  Minor inconsistencies in the recounting of historical events by such a person who is not accustomed to giving detailed accounts of past events are common place.  Many of the alleged inconsistencies identified by counsel for the employer go to collateral matters of detail, the resolution of which was not critical to either the credit of the respondent, or to the issues on which liability turned.

52                  One matter upon which the employer placed particular weight was the failure of the Tribunal to give more expansive reasons for accepting the respondent’s evidence that he suffered the three incidents in August 1998 when he made no reference to those matters in his letter to the employer of 13 January 1999.  I am not satisfied that the employer has demonstrated such an inconsistency between that letter and the later accounts given to Dr Potter and in oral evidence that the Tribunal was not justified in accepting the respondent’s evidence.  The letter of 13 January 1999 should not be taken in isolation.  I consider it is significant that both to Dr Tan and in the notice to the employer of 17 December 1998 and 5 January 1999 the respondent gave the date of injury and onset of symptoms as ‘8/98’.  Thus, he had disclosed three times to the employer that something had occurred in August 1998.  He later explained in oral evidence that the detail and significance of the events in August 1998 were not on his mind at the time that he wrote the letter of 13 January 1999, but came to him in the course of questioning by Dr Potter.  I consider it was open to the Tribunal to accept that explanation.  Further, having three times told the employer that the date of the injury and the onset of symptoms was ‘8/98’ the respondent could be excused for understanding the request for more particulars as seeking something more.  It is hardly surprising that the respondent did not once again refer to August 1998 in his letter. 

53                  The Tribunal recited at length the evidence of the witnesses.  It noted passages from the evidence of the employer’s witnesses which the employer now says are inconsistent with the respondent’s evidence.  The evidence suggestive of these inconsistencies was not overlooked.  It was expressly mentioned.  I have already noted that so far as the respondent made complaints about confined conditions, noise and the airconditioning on the ‘Pacific Conqueror’, his complaints had a measure of support from the employer’s witnesses.  Moreover, the Tribunal was entitled to accept evidence from Dr Ford, the respondent’s psychiatrist, that the respondent’s anxiety condition made him hypersensitive to noise.  His perception of his environment understandably may have differed from that of his fellow crew members.  Differences between the respondent and the employer’s witnesses about the degree of noise, confinement and discomfort on the vessel can be explained on this basis. 

54                  The Tribunal also received evidence from the respondent’s partner, Maggie, which supported the respondent’s evidence about his increasing anxiety and gradual onset of symptoms.  She was not cross-examined.

55                  The acceptance by the Tribunal of the credit of the respondent, and in turn his evidence, largely disposed of the evidentiary inconsistencies about which the employer complains.  The employer’s complaint is in substance one about the merits of the facts found, but such an error is not an error of law reviewable by this Court.

56                  The evidence of Dr Terace was rejected for reasons given by the Tribunal in pars [220] and [221] of the reasons.  The Tribunal said: 

‘Dr Lawrence Terace, psychiatrist, saw the applicant only on one occasion.  He stated that the interview did not show the applicant to be acutely or profoundly disturbed about issues such as to cause a psychiatric condition.  In his oral evidence Dr Terace had the temerity to state that in diagnosing he is in a better position than a treating psychiatrist because his lack of predisposition increased the validity of the report in the sense that such would not be clouded.  The Tribunal does not accept such a claim and rejects it outright.  By making such statement Dr Terace has not shown an open mind in reaching his conclusion but rather a biased attitude.  He in fact considered himself to be in as good a position in relation to diagnosis and causation as the treating psychiatrist, Dr Ford.  He also stated that he had considered things such as working in rough seas as a significant stressor but had found no causal link and gave the opinion that most of the time significant stressors do not lead to the development of a psychiatric disorder.

The Tribunal in considering the evidence of the two psychiatrists has no hesitation, whatsoever, in preferring the evidence of Dr Ford to that of Dr Terace.  It found Dr Ford to be more in tune with the circumstances and as the treating psychiatrist, more understanding of the applicant’s condition and in his diagnosis.’

57                  It was open to the Tribunal to prefer the evidence and opinions of one psychiatrist over those of another.  The Tribunal has given its reasons for doing so.  If those reasons are open to criticism, that is a criticism going to the merits of the fact finding process and is not reviewable by this Court. 

58                  The Tribunal did not merely reject Dr Terace’s evidence without consideration of the disciplinary processes to which the respondent had been subjected.  The Tribunal referred to the disciplinary incidents which had occurred, and also to the evidence of Dr Ford.  Dr Ford had obtained a history of the disciplinary incidents, and noted that the respondent, having mentioned them, did not return to them in later interviews but focussed on his frustration with the heat, noise and sleeplessness as the cause of his nightmares and other psychiatric problems.  In short, Dr Ford had considered the relationship of the disciplinary processes with the respondent’s condition, and had reached a conclusion which differed from that of Dr Terace.  There was no need for the Tribunal to involve itself in further analysis.  The analysis had already been undertaken by a psychiatrist with appropriate professional expertise to undertake it. 

59                  In my opinion the complaint that the Tribunal fell into error of law through its failure to engage in further analysis of inconsistencies in the evidence is without substance.

Capacity to Earn Income in Suitable Employment – Section 32(e) of the SRC Act

60                  The next error of law alleged by the employer is that the Tribunal failed to consider and deal with the evidence of capacity for work and failed to consider suitable employment under s 32(e) of the Act. 

61                  Part 2 of the SRC Act, ss 26 to 47, deals with compensation and the quantification of compensation.  Section 31 relevantly provides: 

‘31       Compensation for injuries resulting in incapacity

(1)       This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 33, 34, 35, 36 or 37 applies. 

(2)       Subject to subsection (3) and this Part (other than this section), compensation for the injury is payable to the employee, for each of the first 45 weeks (whether consecutive or otherwise) during which the employee is incapacitated, of an amount worked out using the formula:

            Normal weekly earnings – Earnings in suitable employment where:

            Normal weekly earnings means the amount of the employee’s normal weekly earnings.

            Earnings in suitable employment means the amount per week (if any) that the employee is able to earn in suitable employment.

(3)       If the employee is a seafarer, the compensation payable under subsection (2) is payable for each of the first 45 weeks (whether consecutive or otherwise) after the date on which the seafarer is left on shore at, or returned to, his or her proper return port.

(4)       Subject to this Part (other than this section), compensation for the injury is payable to the employee, for each week during which the employee is incapacitated, being a week to which subsection (2) does not apply.

(5)       The amount of compensation per week payable under subsection (4) to an employee is:

            (a)        if the employee is not employed during that week – an amount equal to 75% of his or her normal weekly earnings less the amount (if any) that he or she was able to earn during that week in suitable employment;  or 

            …’

Section 31(2) and (5) provide that compensation is the normal weekly earnings or a percentage thereof less the amount the employee was or is ‘able to earn … in suitable employment’.

62                  Section 32 relevantly provides:

‘32       Determination of suitable employment

An employer who determines, for the purposes of section 31, the amount per week that an employee is able to earn in suitable employment must have regard to the following:

…

(e)        if, after becoming incapacitated for work, the employee has not sought suitable employment – the amount per week that, having regard to the state of the labour-market at the relevant time, the employee could reasonably be expected to earn in such employment if he or she were engaged in such employment; 

(f)        if paragraph (b), (c), (d) or (e) applies to the employee – whether the employee’s failure to accept an offer of employment, to engage, or to continue to engage, in employment, to undertake, or to complete, a rehabilitation or vocational retraining program or to seek employment, as the case may be, was, in the opinion of the employer, reasonable in all the circumstances;

(g)       any other matter that the employer considers relevant.’

63                  The Tribunal at par 225 of its reasons said:

‘The Tribunal is satisfied that the accepted injuries resulted in the applicant being incapacitated for work pursuant to section 31 of the Act.  Section 8 of the Act states that such incapacity may be such as prevents a person from engaging in any work, or such as prevents a person working at the same level they worked at prior to sustaining the injury.  In this case, the applicant has not worked since November 1998.  On the evidence of Dr Ford, the applicant was and will indefinitely remain unable to work in a marine environment.  In the interim the applicant has sought rehabilitative treatment, has attempted to retrain and has applied for work in areas outside that in which he previously worked.  Furthermore, in his report dated 18 August 2001 (T23/61), Dr Ford stated that the applicant was “able to function in study but not to work”.  Hence the Tribunal is satisfied that pursuant to section 31, with reference to section 32, the applicant has been unable to earn any income in “suitable employment” to the date of the hearing …’

64                  The employer contends that the fact that the respondent has not earned income is not to the point.  The employer contends it was incumbent upon the Tribunal to analyse whether he was able to earn income in suitable employment.  It is argued that the Tribunal failed to undertake an analysis of whether he was able to undertake employment of the kind that he had applied for, what employment he might be suitable for, if any, and what amount he might be able to earn in such suitable employment.

65                  The evidence about the capacity of the respondent to engage in any employment, and if so what, was meagre.  The respondent said that he had been in receipt of sickness benefits from Centrelink until about six or seven months prior to the Tribunal hearing, at which time his doctor declared him ‘fit for light duties’ meaning unable to lift more than ten kilograms.  He said that in 2000 he undertook a full-time sound engineering course to try and obtain some skills in another field.  He had some work experience in theatre production work in his partner Maggie’s theatre production where he sat at the sound mixing console and ‘turned the faders up and down’ and also with the Noel Coward Society in the Arts Theatre in Angas Street, Adelaide where on one occasion he put radio microphones onto the actors’ clothes.  The respondent said he had been unable to obtain any remuneration from sound engineering work.  He said that he had also just completed another course in video production.  He said that his interest in sound engineering stemmed from playing the keyboard and that he could play the keyboard and piano reasonably well.  However, he also gave evidence that learning a piece of music took him a long time because he could not sight read and had to memorise the music.  He said in cross-examination that he would be happy to work as a sound engineer if the work were available and he had the opportunity to learn about it.  He did not know whether he had passed the sound engineering course that he had undertaken.

66                  Given the respondent’s background, and the evidence that he gave about his understanding of sound engineering, and his limited work experience, the evidence does not give a picture of someone with the experience or intellectual skills to undertake work which apparently requires a degree of sophisticated knowledge and understanding of sound frequencies.  Further, the evidence failed to inform whether there was any remunerative work of that kind likely to be available to anyone, let alone an inexperienced 53 year old man with limited intellectual skills. 

67                  In the course of cross-examination the respondent was asked if he could undertake clerical duties such as working as a ship’s clerk or a clerk in a shipping firm.  He said that he would be able to undertake work of that kind if trained, but had not looked for clerical work as he did not have the training.  He said that he had unsuccessfully applied for work as a food and beverage attendant and as a machine operator.  He said that he did not obtain work in those fields as the employers needed people with experience.  At one point in his evidence he was asked if he could work as a courier.  He said he could not as he was unable to read a road map. 

68                  Again, the evidence failed to demonstrate what capacity the respondent might have in the fields suggested.  The evidence failed to address the question of whether a 53 year old with limited intellectual skills would have any hope of obtaining employment in these fields.  Nor was there any evidence before the Tribunal about the state of the labour market generally, or specifically in the fields of endeavour suggested as possible.

69                  Evidence which the respondent gave about his work in his partner Maggie’s theatre group is revealing.  He said that he assisted in catering, serving cups of tea and cake.  He said he was given a budget of $100 and he went to the supermarket to buy provisions.  He said he took a calculator along and added up each item and afterwards he took the provisions home and prepared them before delivering them to the theatre group.  He said that he could not work in a coffee shop because he has had panic attacks while handling money as he becomes confused adding and subtracting.  The evidence gives the overall impression that there was no realistic prospect of the respondent obtaining remunerative employment in the workforce in any of the fields of endeavour suggested by the cross-examiner.

70                  In Martin v Australian Postal Corporation [2000] FCA 1646, the Tribunal had held that the respondent was fit to engage in full-time employment provided that a number of restrictions applied.  The Tribunal found that the respondent had not seriously sought employment, and on that basis dismissed his claim for compensation.  On appeal to this Court, Wilcox J stressed, at [34] – [40], that the Tribunal must consider whether work which the employee is able to undertake is actually available to the employee.  That claim arose under the provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) which in material respects are similar to the provisions of the SRC Act.  His Honour pointed out that the equivalent provision to s 32 of the SRC Act (i.e. s 19(4) of the Safety, Rehabilitation and Compensation Act) sets out matters that the employer must consider in determining what amount per week an employee is able to earn in suitable employment.  The paucity of information on the availability of suitable work did not excuse the Tribunal from dealing with the question.  His Honour said at [40]:

‘It is inappropriate for the Administrative Appeals Tribunal to determine a matter by reference to the onus of proof:  see McDonald [vDirector-General of Social Security (1984) 1 FCR 354] at 358 (Woodward J), 366 (Northrop J) and 369 (Jenkinson J).  As Woodward J pointed out in that case (at 358), the Tribunal “must act on the material which is before it but … is not bound by rules of evidence and may inform itself on any matter in such manner as it thinks appropriate”.  As Mr Latham submits, this is not a case where the relevant facts were peculiarly within the knowledge of one party to the proceeding.  While it might be expected that Mr Martin would be able to offer evidence concerning the availability to him of work having the restrictions listed by the Tribunal, Australia Post is a major employer.  It must have had considerable experience in rehabilitating injured employees and finding positions compatible with their working limitations.  If [the senior member] had posed for herself the appropriate question, it would have been reasonable for her to expect assistance from both parties in relation to its resolution.  In particular, if Australia Post had wished to contend that one or more positions compatible with Mr Martin’s restrictions is reasonably available to him, the best way of making good the contention would have been to identify the position.’

71                  In the present case, whilst the evidence was meagre, it disclosed that the respondent had attempted to obtain work in a number of areas without success because he lacked relevant training or experience.  The employer’s case merely suggested kinds of employment that might be suitable, but on analysis were not available because the respondent had neither the training nor intellectual skills to perform them.  Moreover, his age, lack of intellectual skills and psychiatric condition left no realistic likelihood that employment would be available.

72                  In my opinion the finding of the Tribunal at par 225 is to be understood as a finding that the Tribunal was satisfied that suitable employment had not and was not available to the respondent, and hence he was unable to earn any income in suitable employment.

73                  In my opinion that conclusion was not only open on the evidence, but in accordance with it.

Permanency of Impairment

74                  The remaining error of law alleged is that the Tribunal failed to give any or sufficient reasons for its determination of permanency of impairment which finding, it is contended, was unreasonable.  This alleged error was said to flow from the failure of the Tribunal to give adequate reasons for its conclusions, an alleged error which, for reasons already given, I do not consider has been made out.  The ground was not advanced as a separate discrete complaint.  The Tribunal’s reasons disclose that the assessments of permanent impairment were based directly on the opinions given in evidence by Dr Potter and Dr Ford, the respondent’s witnesses whose evidence the Tribunal accepted.  In my opinion the Tribunal sufficiently disclosed the reasons for those determinations.  The determinations, being based upon credible medical evidence before the Tribunal, cannot be said to be unreasonable.

Conclusion

75                  In my opinion the employer has failed to demonstrate any error of law on the part of the Tribunal and the appeal by way of application to this Court should be dismissed with costs. 

Associate:

Dated:              22 May 2003