Case: Visscher v Munro [2005] FCAFC 252 ; (2005) 147 FCR 538
Outcome: cited
One of the principal purposes of the Navigation Act is to ensure the safety of ships and crew in Australian waters: see Visscher v Munro [2005] FCAFC 252 ; (2005) 147 FCR 538 at 542. The Marine Orders, as I have said, may also be interpreted in that context. However, I do not think that it follows that a contract of employment procured by a person with a CMF which has been issued despite (or because of) misleading or incomplete information provided to the doctor concerned necessarily would frustrate that objective. The Marine Orders, and in particular the CMF, aims to ensure that the crew on a ship are physically fit for the duties which they are to undertake so that they are not a danger to themselves or to others or to the ship. Dr Macris undertook his own examination of the respondent. As a result of that examination, he observed that the respondent had normal use of the arms and legs, normal gait, and did not have any apparent defect of the bones or joints, enjoyed movements of the joints in the normal range and without pain, and did not have any restriction or pain in the movement of the spine. 48 It would follow from the applicant's contention that a misleading or inaccurate or incomplete disclosure on a medical information form, even one irrelevant to the particular person's fitness to undertake work proposed to be undertaken on a ship, would lead to the invalidity of the CMF. For example, through oversight, an applicant for a CMF may simply not disclose a previous medical condition (such as an appendix removed), and be visited with the consequence that the CMF itself is invalid, and (as the applicant contends) that there is therefore no valid employment subsequently undertaken on the basis of the CMF which has been issued. I do not think such a construction is necessary to fulfil the object of the Marine Orders as part of the service of the purposes of the Navigation Act . Nor does that construction provide the certainty which the CMF is intended to provide, as a foundation for employment; it would be ... a provisional foundation vulnerable to identifying at some later time and perhaps at a much later time that all along the employment has been invalid. Such an outcome does not lie easily with the definitions in the marine Orders to which I have referred. 49 In my view, the second step is equally problematical for the applicant. In addition, there is nothing in the Seafarers Act itself to support the contention for the reasons just discussed. An employee is defined in s 4 to include a seafarer, and a seafarer is defined in s 3 to include a person employed in any capacity on a prescribed ship. As a matter of fact, the respondent was employed on the Iron Chieftain operated by the applicant. On the clear wording of s 26 of the Seafarers Act, if the respondent as an employee suffered an injury which resulted in his incapacity for work, compensation was payable to him for that injury under the Seafarers Act. It would be a wholly disproportionate consequence of the applicant's contention that he would be ineligible for compensation, even if the non-disclosure or incomplete disclosure of his medical condition was accidental or through oversight, or if it related to a condition which had no relevance to his capacity to perform his duties. It is difficult to accept that outcome would have been intended in legislation which has a significant social objective. The analysis of the relative significance of the information which has been either not disclosed or inaccurately reported regarding the past medical history, and its relationship to the injury, or of the reasons for its non-disclosure or inaccurate disclosure, is not one upon which, in my view, the entitlement to compensation under the Seafarers Act are predicated. That may be one of the situations which, subject to considering the applicant's further contentions, ss 26(3) or 10(7) of the Seafarers Act is designed to cover. The disproportionality to which I have referred is a relevant consideration to the construction for which the applicant contends: cf Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312 at 316. Indeed, the point was made in Visscher 147 FCR at 542 that a medical certificate is not conclusive of the question of fitness to undertake particular duties. In that case, the Full Court at 542 adopted a submission of counsel that: ... the regulatory scheme that is established by the [Navigation] Act and the Orders is a licensing system of a familiar generic sort, of which the issuing of medical certificates is part. It does not, either expressly or impliedly, deal with the contractual relationship between employers and employees.