(3) Compensation is not payable for an injury that is not intentionally self-inflicted but is caused by the serious and wilful misconduct of the employee, unless the injury results in death, or serious and permanent impairment.

We would simply interpose to say that, in our opinion, the particular injury did not result in serious and permanent impairment. Section 12 of the said Act then goes on to provide:

For the purposes of this Act, an employee who is under the influence of alcohol or a drug (other than a drug prescribed for the employee by a legally qualified medical practitioner or dentist and used by the employee in accordance with that prescription) is taken to have engaged in serious and wilful misconduct.

The situation here is that the employer has alleged that the applicant at the time of his fall was under the influence of alcohol.

In respect of that the respondent called three witnesses, two of those were persons who served as members of the crew of the vessel Goliath with the applicant. The first witness, a Mr Milekic, in a statutory declaration completed by him and signed 20 August 2000, stated inter alia that he had a conversation with the applicant between 0800 and 0900 hours when he was told by the applicant he had had a fall.

According to the statutory declaration Mr Milekic asked the applicant, "were you drinking?" to which the applicant replied, "Yes, but I only had two or three beers with Hans". Mr Milekic then goes on to say that he told the applicant a breathalyser test was necessary. He accompanied the applicant to a thing called the telephone room where there was a breathalyser machine, the applicant took a straw, blew into the unit through that straw and had a reading of .03 or .04.

Later, he was present when the applicant underwent another breathalyser test in the presence of the Master of the vessel and, this time, Mr Milekic saw that the reading was nil. Mr Milekic, in his evidence to this Tribunal, was asked about the first breathalyser test and stated that the paragraph 2 of his statutory declaration wherein he mentioned the first breathalyser test, was wrong. He then said his statutory declaration was wrong. It had been handwritten by an investigator who had taken a statement from him and he had just signed it.

The Tribunal finds that difficult to believe because, throughout that statement, there are initials by Mr Milekic where he has initialled alterations in the statement. However, it is clear that he has, in this Tribunal, resiled from his statement.

Likewise, Mr Bell was the chief steward on the Goliath at the time the applicant had his accident. In his statement, he said that he witnessed Mr Milekic and the applicant at the telephone room where the breathalyser machine was kept. He spoke to them and the applicant said, after having apparently just completed a breathalyser test, "I am .08. I was three times that last night". Mr Bell also stated that he saw the applicant at 0600 hours when he had been told by the applicant that he had fallen on the stairs and couldn't do his work of preparing breakfast.

Cross-examined, Mr Bell went on to say, "I might have made a mistake when talking to the assessor" and further added, after his statement was put to him, "I never said nothing like that". It is clear from his evidence that he also is resiled from the statement which he made to the investigator employed on behalf of the respondent's insurer.

The applicant's conduct at the time certainly calls in to question his motivation and what was referred to in submissions as his conscienceness of guilt. It would appear that following the fall, the applicant took himself back to his cabin. Although he had a phone in his cabin, he did not seek any assistance at that time and the first time he sought any assistance was at or about 0600 hours the next morning when he saw the First Mate of the vessel and obtained some pain killers.

He had great complaints about the Captain of the vessel whom he stated had insulted him by accusing him of being drunk. We reject that evidence in its entirety. Fortunately the Captain of the vessel, Mr Booth, made notes at the time and those notes show that the applicant's breath smelt of alcohol and the Captain told him he would like to breathalyse him.

The applicant then took an incident notification form and, instead of completing it at that time, absented himself from the Captain's presence until later at about 1120 hours that morning. He was then breathalysed and, as stated earlier, his breathalyser reading then was nil.

It is entirely consistent, of course, with some of the earlier evidence that the applicant did give himself a breathalyser test earlier in the morning and, having observed that he was still registering on the breathalyser, ensured that he was out of the way until a nil reading could be obtained.

The difficulty we have in this matter is that, given the denials by the two witnesses, we are in a position where we simply cannot accept their evidence either way. What we are left with is the situation that there is a nil breathalyser reading at or about 1130 or 1120 hours on 14 November. Even if we accepted that the applicant had a breathalyser reading of .03 or even .08 at or about 0900 hours, there is no evidence as to what would have been the effect of that earlier in the evening.

The question of what constitutes "under the influence of alcohol" was referred to by a tribunal presided over by Deputy President Forgie in Re Elvin and Comcare 51 ALD 706 where the learned Deputy President adopted statements from insurance law and held that "under the influence of alcohol" could be taken to mean inter alia, disturbance to mind or faculty. It is interesting in one sense that the learned Deputy President, writing the reasons for the Tribunal says that:

If it were not for Dr Elvin's BAC reading of 0.151 and the scientific evidence we have heard, we would have concluded that he had not displayed any disturbance of his facilities or the balance of his mind or the quiet, calm, intelligent exercise of his faculties. The evidence of the BAC reading and the scientific evidence is, to our minds, persuasive and outweighs the evidence of observation and self assessment.

We simply mention that to show in this matter that there is really no breathalyser evidence and no conclusions which we could draw even from it. In Elvin's case, we note that the respondent called Dr Carroll, the government medical officer, to give specialised evidence as to the effect of breathalyser readings.

Another matter which has exercised our minds is whether or where any onus of proof lies. Of course it is often said that there is no such thing as an onus of in these administrative proceedings. However we would refer to the decision of his Honour, Mr Justice Hill, in Casarotto and Australian Postal Commission [1989] FCA 116; 86 ALR 399. Commencing at page 412, his Honour said:

Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) ...

Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present in asserting a claim for a right to compensation ... and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law.

Well of course, the reverse applies where the respondent wishes us to draw certain conclusions from the facts provided. If the Tribunal in Elvin and Comcare supra decided otherwise on the necessity for the accuser to prove their case, then we respect, we disagree with them.

In this matter we agree that the applicant has shown a conscienceness of guilt, we strongly consider that the witnesses, Bell and Milekic, have tailored their evidence in these proceedings to advantage a fellow worker. However, at the end of the day, it simply means that whilst there is suspicion and conjecture that the applicant was affected by alcohol at the time of the accident, it simply remains that, suspicion and conjecture and we are not prepared to make an affirmative finding on the material before us that he was under the influence of alcohol. That being so, the decision under review will be set aside and this matter remitted to the respondent with the direction that the applicant, James Patrick Robertson, is entitled to compensation pursuant to the Seafarers Rehabilitation and Compensation

Act 1992 for injury arising aboard the vessel Goliath on 13 November 1999. I suppose I should add that costs follow the event.