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. The Tribunal's Reasons for Decision 10 The Tribunal first summarised the evidence given by Mr Wood and a Mr McDonald, who had been a chief caterer on board the "Endeavour" in the relevant period, as well as the evidence of the various medical experts who had given reports and/or oral evidence. It then proceeded to consider the submissions made by the parties. 11 On the question of Mr Wood's alcohol intake it accepted Mr Wood's evidence and rejected a submission that he had distorted his drinking habits to the doctors who had examined him. 12 It considered too his health before he joined the "Endeavour" accepting that he had suffered some hypertensive heart disease in 1991 and a minor stroke in February 1995 but that he had returned to sea "after making a complete recovery". The Tribunal found, having regard to the medical evidence that he was in good health when he joined the vessel in early January 1997 and that there had been no sign of cardiomyopathy when he had an examination of his heart in 1995. It noted also a submission of the respondent that Mr Wood's condition of cardiomyopathy could have been caused by a number of factors including virus, excessive alcohol consumption, idiopathic causes or a combination of them. It had been submitted that unless Mr Wood was found to be suffering post-viral cardiomyopathy he could not demonstrate his condition was contributed to by his employment. 13 At paragraph 73 of its reasons, in a passage which forms the basis of the principal submissions for ASP, the Tribunal said: "The Tribunal was satisfied from the medical evidence before it, including the reports of Doctors Schiller, Habersberger, Robinson and Light, and as a result of the tests conducted, including an ECG in 1991 (T4) and a TOE in 1995 (T8), that there was no evidence to indicate that Mr Wood was suffering from cardiomyopathy before the incident on 25 January 1997." 14 It concluded that Mr Wood was not suffering therefore from a pre-existing disease aggravated by work as argued for by counsel for ASP. For the reasons it gave it ruled out also that Mr Wood was suffering from an alcohol related cardiomyopathy. The Tribunal accordingly found that the issue it had to determine, and in consequence of its conclusion, the sole issue was whether it was satisfied that Mr Wood's illness was caused by a virus or some other unknown cause. 15 For the sake of completeness it should be noted that two paragraphs further on from the passage complained of the Tribunal considers evidence taken after January 1997 and says, inter alia: "Doctor Peter MacDonald who conducted the diagnostic cardiac biopsy in February 1997, and whose report of it was before the Tribunal … opined that the appearances were consistent with an idiopathic dilated cardiomyopathy." 16 The Tribunal then referred to much of the medical evidence concerning viral illnesses. It noted evidence from Professor Blacket that viruses did not have long incubation periods and the evidence of Dr Habersberger that the incubation period of viruses varied and could be days, weeks, months or even years. It noted that it would be difficult to pinpoint where a virus was contracted. Of Dr Schiller's evidence it said: "It was Dr Schiller's evidence that a virus could be contracted between one and four weeks prior to the onset of symptoms." 17 The Tribunal continued: "The applicant highlighted the medical evidence given by Dr Schiller relating to the short gestation period of viruses, and asserted that it was likely that Mr Wood had contacted the virus on the Endeavour in the 19 days prior to the 25 January 1997. Mr Watson [counsel for ASP] however submitted that the fact some other crew members suffered coughs and flu symptoms was not conclusive of the existence of viral infection on board the ship. He contended that other crew members had experienced symptoms different from Mr Wood's, and that most had been on a different swing, either prior to or after Mr Wood's swing. The Tribunal, preferring the evidence of Dr Schiller, was satisfied that Mr Wood contracted an unidentified virus on the Endeavour in the 19 days prior to the onset of his symptoms on 24 or 25 January 1997." The Tribunal was mindful that a number of the doctors had indicated the difficulty in accurately identifying the exact cause of the cardiomyopathy. Dr Schiller who opined that Mr Wood was most probably suffering post-viral cardiomyopathy, refused to rule out that Mr Wood was suffering an acute episode of alcohol related cardiomyopathy. Dr Robinson speculated that the cause of Mr Wood's cardiomyopathy could have been either alcohol or viral related … and Professor Blacket opined that Mr Wood suffered from both alcohol related and post-viral cardiomyopathy. … However, even with the knowledge of the applicant's drinking habits, Doctors Habersberger, Balzer and Light, all found that it was more likely than not, that Mr Wood had contracted a virus which culminated in the manifestation of his symptoms on board the Endeavour on 25 January 1997, which led to his condition of cardiomyopathy. The Tribunal preferred the evidence of Doctors Habersberger, Light and Balzer and Professor Blacket who concluded that Mr Wood was suffering from post-viral cardiomyopathy." 18 In the event the Tribunal found that Mr Wood had contracted an unknown virus in the course of his employment with ASP between 3 January 1997 and 25 January 1997 which resulted in his condition of post-viral cardiomyopathy and that accordingly he had an injury which pursuant to s 26 of the Seafarers' Rehabilitation and Compensation Act was compensable. The submissions for ASP 19 Counsel for ASP submitted: 1. That at paragraph 73, in the passage cited earlier, the Tribunal had concluded that there was no evidence that Mr Wood was suffering from cardiomyopathy before the incident in January 1997 when in fact there was some evidence. This was, it was submitted, an error of law and required the Tribunal then to go on and find, having regard to all the evidence, whether Mr Wood did in fact suffer from cardiomyopathy before the incident and depending on that finding what the consequences of it were. 2. In paragraph 79 of its reasons the Tribunal misstated the evidence of Dr Schiller when it said that he was satisfied that Mr Wood contracted an unidentified virus on the "Endeavour" in the 19 day period prior to 24-25 January 1997 when Dr Schiller's evidence did not support this. 20 I shall consider each of these submissions in turn. Submission 1 – Was there any evidence that Mr Wood was suffering from cardiomyopathy before the incident on 25 January 1997? 21 Counsel for ASP referred to three matters. First it was submitted that counsel for Mr Wood had conceded before the Tribunal that there was evidence to indicate Mr Wood was suffering from cardiomyopathy. 22 In support of this submission reference is made to a passage in the transcript when the case was opened after evidence had closed. The passage pointed to is to say the least not wholly coherent. Indeed in these cases it is not unusual to see that the transcript is not always completely accurate. 23 Before repeating the passage upon which counsel relies, it is important to put it in context, particularly the way counsel commenced his submissions. Mr Curran of counsel, who acted for Mr Wood at the time, said: "First of all it is the applicant's primary case that he suffered the onset of a viral cardiomyopathy which affected him in circumstances where he was in a state of vulnerability because of an underlying condition of alcoholic cardiomyopathy. … it is also put that alternatively the applicant suffered an onset of viral cardiomyopathy simpliciter. That is that condition came upon him, cause is by a virus where there was no underlying alcoholic cardiomyopathy present …as a third alternate, it is put that the applicant was at January of 1997 in a normal state of health apart from an underlying but quiescent condition of alcoholic cardiomyopathy." 24 It will be seen that the case was put in alternatives, one of which was that Mr Wood did not suffer from a pre-existing condition of cardiomyopathy. Given that these were the three alternative ways in which counsel argued the case, it seems highly unlikely that counsel intended to concede that one of the alternatives could not be made out. 25 The passage relied upon as a concession follows a submission that the applicant's heart was quite normal in 1995. It was said that the Tribunal should be satisfied that Mr Wood's symptoms were consistent with a viral infection he suffered and that it was only at that time that he began to be infected by cardiomyopathy with no suggestion of any real health problems before that until January 1997. The transcript then reads as follows: "So that members of the Tribunal, even – even adopting the tests, the tests that are suggested by my learned friend, it is my respectful submission that you would be satisfied that the applicant in this particular case is entitled to a finding that he contracted the virus and that as a result of that, an underlying condition of alcoholic myocardium, rather alcoholic cardiomyopathy was excited and made more virulent and that as a result of those events he has suffered an injury within the meaning of the Act and that injury is compensable. Now, at this point I have to just repeat my opening remarks. It is definitely the applicant's case that he had an underlying, largely acquiescent condition of alcoholic cardiomyopathy and that submission is primarily and largely based on the fact that the tests done later do suggest that there may – that there were some previous underlying history of it." 26 In my view the passage cited should not be treated in its context as a concession particularly as it seems totally opposed to much of the submissions which preceded and follow it. 27 The second matter relied upon by senior counsel for ASP is the evidence of Dr MacDonald. Dr MacDonald did not give oral evidence. There is a note of a telephone conversation to someone on 19/2/97 which reads as follows: "Dr Peter MacDonald rang re: biopsy on Steven Wood. Showed changes consistent with an established cardiomyopathy. No evidence of myocarditis." 28 Subsequently Dr MacDonald wrote to a Dr Robinson who treated Mr Wood on reference in 1991 and gave reports in 1997. Dr MacDonald's letter reads as follows relevant: "Thank you for sending this man along for diagnostic cardiac biopsy. I performed this on the 18 February … The histology shows evidence of an established cardiomyopathy with moderate isocytosis and myocytolysis together with mild interstitial fibrosis. There was no inflammatory infiltrate and stains for iron and amyloid were negative. Overall the appearances are consistent with an idiopathic dilated cardiomyopathy. After the procedure he did ask me about what impact this would have on his ability to work as a International Sailor. At that stage I did not know the answer to the biopsy and said that if it did show evidence of a cardiomyopathy he has probably been working with this for the last five years. I advised him that I thought he would need regular medication, however, [if] he were asymptomatic then I thought he could return to work." 29 It is clear from the passage in the Tribunal's reasons cited earlier (para 75) that the Tribunal did not ignore Dr MacDonald's evidence. The reference to consistency with idiopathic dilated cardiomyopathy is to be found in the Tribunal's reasons also in its summary of his evidence at para 50 as follows: "He conducted a diagnostic cardiac biopsy, and stated in his report that overall the appearances were consistent with an idiopathic dilated cardiomyopathy." 30 Perhaps there is a question of interpretation of his evidence. Certainly the statement of consistency is not a statement of actual cardiomyopathy before 18 January 1997. Without more the point would seem a poor one. However counsel seizes upon the reference in the 20 February letter to "an established cardiomyopathy". It is not clear to me necessarily what this means. Does it mean established at the time of the test on 18 February 1997 or established at an earlier point of time. Given the emphasis both in the telephone conversation and in the letter on consistency with cardiomyopathy, I think the letter should be treated as meaning what it says. In other words it does not seem to me to involve an error law for the Tribunal to find that Dr MacDonald's evidence was that Mr Wood was not suffering from cardiomyopathy before 25 January 1997. 31 The third evidence to which reference was made by counsel was the evidence of Professor Blacket, said to be supportive of Dr MacDonald. 32 Dr Blacket was shown Dr MacDonald's report. Dr Blacket had not seen the biopsy itself. The first passage in his oral evidence relied upon is as follows: "Now, if the cardiomyopathy had been induced suddenly on board the ship would you expect there to be signs of it being quote, established cardiomyopathy, unquote?---No. Would you, if the process whereby the cardiomyopathy was acquired, have found it to be – sorry, I withdraw that. If the cardiomyopathy was acquired acutely following myocarditis induced by virus, would you expect that on a biopsy taken on 18 February, if the event occurred on 25 January, expect there to be no inflammatory signs?---No I would expect there to be inflammatory signs for such a recent history of that indeed with the ideology." 33 Given that Dr Blacket had not seen the biopsy but was asked to assume certain conclusions which may or may not be possible to read into Dr MacDonald's evidence, in my view it is unfair to treat Dr Blacket's evidence as being some evidence contradicting the Tribunal's comments at para 73 of its reasons. The first submission in my view fails. Submission 2 – the evidence of Dr Schiller 34 It will be recalled that the Tribunal's reasons preferred the evidence of Dr Schiller which it said related both to short gestation periods of viruses and the general issue as to whether Mr Wood had contracted an unidentified virus in the 19 days prior to the onset of his symptoms. 35 Counsel for ASP pointed to the following evidence given by Dr Schiller orally. 36 It was Dr Schiller's evidence that the cardiomyopathy resulted from a viral infection which happened within a matter of one or several weeks before the onset of the cardiomyopathy. Asked about what he meant by "several weeks" Dr Schiller expressed the view that the period of time from contracting the virus until the result was two to four weeks, sometimes less. 37 In various passages not referred to in the course of cross-examination, Dr Schiller continued to maintain the view that there had been an acute and rapid onset of symptoms. Indeed Dr Schiller at one point said that this happened in a "matter of days". 38 Dr Schiller was then referred to the views of Dr Habersberger as expressed in two reports and was asked to comment on them. The following passage is relied on by senior counsel for ASP: "Well doctor, do you have any comment to make concerning the views expressed by Dr Habersberger?---He takes the view that it is impossible to say at what point the viral infection which proceeded the cardiomyopathy was acquired. It would appear though that if there were a number of people with sore throats on board, with symptoms of this, that he may well have acquired the infection after he came on board ship. And it appears somewhat more likely than that he acquired it quite a long time earlier. And what are the factors doctor in summary that caused you to say it is more likely to have been contracted after he went on board on 5 January than before?---Because there were other people who had viral infections and sore throats and who were asking for some medication for it. At the same time that he was on board it is reasonable to assume that one of them brought it on board and that the infection spread to others while the ship was out." 39 A submission that it was Dr Schiller's view that it was more likely than not that the onset of the viral infection was a long time before Mr Wood came on board ship (see the last sentence in the first paragraph quoted) hardly appears to be what Dr Schiller said having regard to the question that was asked him next. It would seem more likely either that he was expressing a view of Dr Habersberger or that he intended at least to say that it was not likely that the virus had been acquired earlier than Mr Wood coming on board ship. 40 There are other passages relied upon by senior counsel. There is little point repeating them. I have read them, indeed I have read the whole of Dr Schiller's evidence. It is fair to say that overall, while Dr Schiller could not be positive about whether a virus had caused Mr Wood's problems or the time that that virus would take to produce the result, he continued to conclude, as the Tribunal said, that his preferred position was that Mr Wood suffered a post-viral cardiomyopathy as a result of contracting an unidentified virus on the "Endeavour". It was open to the Tribunal to accept Dr Schiller's evidence. There was also other evidence to the same effect. No error of law has been demonstrated. 41 I would not conclude these reasons without making a comment. Parliament provided for applications in the way of appeals from the Administrative Appeals Tribunal (or for that matter other tribunals) to be limited to questions of law. 42 While there may be room for argument from time to time as to the distinction between questions of law and questions of fact, care must be taken that appeals to this Court not be ill-disguised attempts to appeal issues of fact disguised as issues of law and to adopt a rather pedantic approach to the reasons of the Tribunal. The Tribunal, as I have said in my judgments before, operates often under quite difficult circumstances. Its workload is heavy. Its assistance is often limited. Its reasons should not, as the High Court itself has on numerous times pointed out, not necessarily in connection with the Administrative Appeals Tribunal, be combed through in a search for some apparent error when none exists. 43 The application is to be dismissed. The applicant should pay the respondent's costs. I certify that the preceding forty three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate: Dated: 25 June 1999 Counsel for the Applicant: J D Hislop QC Solicitor for the Applicant: Blake Dawson Waldron Counsel for the Respondent: P Hall QC, J Trainor Solicitor for the Respondent: W G McNally & Co Date of Hearing: 21 June 1999 Date of Judgment: 25 June 1999