ASP Ship Management Pty Ltd v Wood [1999] FCA 851

FEDERAL COURT OF AUSTRALIA

ASP Ship Management Pty Ltd v Wood [1999] FCA 851

No question of principle.

Seafarers' Rehabilitation and Compensation Act 1992 (Cth) ASP SHIP MANAGEMENT PTY LTD v STEVEN SIDNEY WOOD N 0043 of 1999 HILL J 25 JUNE 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 0043 OF 1999

BETWEEN: ASP SHIP MANAGEMENT PTY LTD

Applicant

AND: STEVEN SIDNEY WOOD

Respondent

JUDGE: HILL J

DATE OF ORDER: 25 JUNE 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The Applicant pay the Respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 0043 OF 1999

BETWEEN: ASP SHIP MANAGEMENT PTY LTD

Applicant

AND: STEVEN SIDNEY WOOD

Respondent

JUDGE: HILL J

DATE: 25 JUNE 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant, ASP Ship Management Pty Ltd ("ASP") appeals from the decision of the Administrative Appeals Tribunal, constituted by a senior member as well as an ordinary member of that Tribunal, which found it liable to pay to Mr Steven Sidney Wood (the respondent in the present appeal) compensation pursuant to s 26 of the Seafarers' Rehabilitation and Compensation Act 1992 ("the Act"). The appeal to this Court is an application in the Court's original jurisdiction and is an appeal on, that is to say, limited to a question of law. 2 The objective facts were not in dispute. Mr Wood, by trade and occupation, was catering assistant in the maritime industry. Between 23 November 1996 and 11 December 1996 Mr Wood worked on board a vessel, the "Australian Trader", a vessel of ASP. His service involved a roster system of a number of weeks on board ships (known as a "swing") and an equivalent number of weeks of on shore leave. His duties included loading stores and provisions, assisting with meal preparation and cleaning the officers' and captains' rooms. Mr Wood then joined the "Endeavour" on 3 January 1997. He was then feeling well. He became ill on or about 25 January 1997. Between 3 January 1997 and becoming sick, he travelled on the "Endeavour" from Sydney to Melbourne, back to Sydney, on to Brisbane and then to Yokahama in Japan. He did not leave the ship in Melbourne but did go home for four hours whilst the ship was berthed in Sydney. In Brisbane he left the ship only in order to load stores. 3 Mr Wood's evidence was that some five days out of Brisbane he began to feel unwell, suffering a sore throat and neck, to the extent that on or about 25 January he was bedridden, suffering from aches throughout his body including pain in his back. He had chest pain and problems breathing. 4 Mr Wood was discharged from the shipping service for medical reasons on 2 July 1997 and has not worked in the industry since. 5 Before the Tribunal it became clear that there were a number of possible hypotheses which might be advanced. The first, which was the primary case put before the Tribunal on behalf of Mr Wood, was that while on board he suffered the onset of a viral cardiomyopathy, albeit he was at that time in a state of vulnerability because he had an underlying condition of alcoholic cardiomyopathy. Second an alternative way in which Mr Wood's case was put was that he suffered an onset of viral cardiomyopathy simpliciter, that is to say his cardiomyopathy came upon him because of a virus and in a case where there was no underlying alcoholic cardiomyopathy present. The third alternative was that he did have a condition of cardiomyopathy present through January 1997 which became manifest at work in the course of his employment and was thus an injury. 6 The thrust of the case for ASP was to reject the possibility of Mr Wood having a viral infection which developed into cardiomyopathy but to concentrate on his pre-existing idiopathic related cardiomyopathy brought about by alcohol. 7 As is obvious from the short description just given two matters were in considerable issue. The first was Mr Wood's alcohol intake. The second the considerable body of medical evidence relating to the ultimate cardiomyopathy manifest after the events in January 1997. 8 Mr Wood's evidence was that he had drunk alcohol from the age of 16; his intake had increased with difficulties in his marriage. The Tribunal noted that Mr Wood had consulted doctors and mentioned his alcohol consumption. At least on his own evidence he drank six schooners of beer a day. He sought assistance from a drug and alcohol specialist whose view was that he was not an alcoholic. He fulfilled his duties at work satisfactorily. He had performed his duties without problems and was able to carry out his duties which involved climbing stairs, lifting and bending satisfactorily. 9 There was, as to be expected in cases of this kind, a considerable volume of medical evidence. Most of it is summarised in the Tribunal's reasons for decision, particularly the evidence of Dr Schiller, a cardiologist; Dr Blacket, a cardiologist; Dr Habersberger, a cardiologist; Dr Robinson, a cardiologist; Dr Balzer, a general practitioner; Dr Gottlieb from the Drug and Alcohol Department at St George Hospital; Dr Wikramanayake, a physician; Dr Light who treated Mr Wood shortly after 25 January 1997; Dr Cejnar, a consultant cardiologist and Dr MacDonald, a cardiologist. Their evidence was in many ways conflicting. The conflicts that that evidence displayed were conflicts to be resolved by the Tribunal.