Aitken and Repatriation Commission - [2001] AATA 921

DECISION AND REASONS FOR DECISION [2001] AATA 921

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1618

VETERANS' APPEALS DIVISION )

Re HUGH AITKEN
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Ms G Ettinger Senior Member Dr M E C Thorpe Member Mr A Limbury Member

Date7 November 2001
PlaceSydney

Decision        The Administrative Appeals Tribunal determines that the decision under review of the Repatriation Commission dated 28 July 1999 as affirmed by the Veterans' Review Board on 20 January 2000, which held that Mr Hugh Aitken's conditions of osteoarthrosis of the right hip and pleural plaques were not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986, is varied to find that: (i) that part of the decision under review concerning the condition of pleural plaques, by agreement of the parties, is set aside, and in substitution, the condition of pleural plaques is accepted as a war-caused disability; and (ii) that part of the decision under review concerning the condition of osteoarthrosis of the right hip is affirmed. The matter is remitted to the Repatriation Commission for assessment of Mr Aitken's entitlements to pension pursuant to the legislation.
  Ms G Ettinger
  Senior Member
CATCHWORDS
Veterans' Affairs - entitlement and assessment matter - whether osteoarthrosis of the right hip war-caused - Respondent's decision regarding osteoarthrosis of the right hip affirmed - Respondent concedes pleural plaques as war-caused – remitted for assessment of entitlement to pension.

Veterans' Entitlements' Act 1986 ss 9, 120(4) and 120B

Repatriation Medical Authority, Statement of Principles concerning Osteoarthrosis, Instrument No.42 of 1998
Repatriation Medical Authority, Statement of Principles concerning Osteoarthrosis, Instrument No.20 of 1999
Repatriation Medical Authority, Statement of Principles concerning Osteoarthrosis, Instrument No.82 of 2001

Connors v Repatriation Commission (2000) 59 ALD 61
Harris v Repatriation Commission (2001) 62 ALD 174
Harris v Repatriation Commission (2001) 62 ALD 161
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Williams [2001] FCA 1195

REASONS FOR DECISION

7 November 2001 Ms G Ettinger Senior Member Dr M E C Thorpe Member Mr A Limbury Member

The decision under review before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission of 28 July 1999 (T11), which found that the Applicant, Mr Hugh Aitken's conditions of localised osteoarthritis of the right hip and pleural plaques were not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act"). That decision was affirmed by the Veterans' Review Board on 20 January 2000 (T15).

At the Tribunal hearing, Mr Aitken was represented by Mr B Winship of Rockliffs Solicitors, and the Respondent was represented by an advocate of the Department of Veterans' Affairs, Ms G Pacey. Oral evidence was given by the Applicant, Mr Aitken, and Dr M Benanzio, Orthopaedic Surgeon.
The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T-documents") as Exhibit R1, and the following further exhibits:
ITEM DATE NAME
Medical Report of Dr M Benanzio 20 October 2000     Exhibit A1
Medical Report of Dr M Benanzio 30 October 2000     Exhibit A2
T-Documents Exhibit R1
Medical Report of Dr M Hyde Page         2 August 2001         Exhibit R2

ISSUES BEFORE THE TRIBUNAL

The issues before the Tribunal were:
(a)Whether the applicant's condition of localised osteoarthrosis of the right hip was aggravated during his eligible defence service, and was therefore war-caused within the terms of section 9 of the Veterans' Entitlements Act 1986 ("the Act").
(b)The Tribunal noted at the hearing, that the Respondent conceded that Mr Aitken's condition of pleural plaques was war-caused within the terms of the legislation. This issue was not therefore considered further by the Tribunal.
(c)In lieu of assessing Mr Aitken's entitlement to pension, the Tribunal remitted the matter to the Respondent for assessment.

LEGISLATION

The relevant legislation in this matter was the Veterans' Entitlements Act 1986 in particular sections 9, 120(4) and 120B(1), as follows:
"9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran    resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
……
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise."
120. Standard of proof
…
(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:   This subsection is affected by section 120B.
….
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B (3) or (12); or
(ii) a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service."
The Tribunal noted that Mr Aitken had served on operational service as well as eligible war service. As the claim was lodged after 1 June 1994, the Tribunal was required to apply section 120B of the Act. This meant that the relevant Statements of Principles ("SoPs") issued by the Repatriation Medical Authority had to be applied. The SoP considered in deciding Mr Aitken's application in relation to his condition of localised osteoarthrosis of the right hip was Instrument No.42 of 1998 concerning Osteoarthrosis, as amended by Instrument No.20 of 1999, dated 14 January 1999.
The definition of "trauma to a joint" in Instrument No. 42 of 1998 was as follows:
"'trauma to a joint' means a discrete joint injury that causes the development within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of that joint. These acute symptoms and signs must last for a period of at least 10 days immediately after the injury occurs."
The definition of "trauma to a joint" in Instrument No.20 of 1999, comprised additional situations in which certain medical intervention was considered. For the sake of completeness, the definition is reproduced here, even though it is not relevant to the present case:
"'trauma to a joint' means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and either altered mobility or range of movement of the joint. These acute symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:
(a)immobilisation of the joint or limb by splinting, sling or similar external agents; or
(b)       injection of corticosteroids or local anaesthetics into that joint; or
(c)       aspiration of that joint; or
(d)       surgery to that joint."

By the time of writing the decision, Instrument No.82 of 2001 dated 9 October 2001 had been promulgated. In light of the decisions in Repatriation Commission v Keeley (2000) 98 FCR 108, Repatriation Commissionv Gorton [2001] FCA 1194, and Repatriation Commission v Williams [2001] FCA 1195, the Tribunal considered whether this SoP had any bearing on Mr Aitken's claim. It did not alter the definition in Instrument No. 42 of 1998 and No.20 of 1999 substantially. However, the Tribunal noted that the definition of trauma had been changed to "trauma to the affected joint", and was otherwise identical to the definition in Instrument No.20 of 1999. The change did not impact on the decision making process of the Tribunal.
The relevant factor in Instrument No.42 of 1998 which was considered was Factor 5.(u), which as relevant follows:
"Factor 5 (u) suffering a trauma to a joint within the 25 years immediately before the clinical worsening of osteoarthrosis in that joint; or …"
The date of effect should the claim be successful, and as agreed by the parties, was 20 July 1999.
EVIDENCE BEFORE THE TRIBUNAL
mr j aitken - the applicant
Mr Aitken, whose date of birth was 2 October 1943, gave oral evidence before the Tribunal.
Mr Aitken told the Tribunal that he served in the Royal Australian Navy ("the Navy") in various capacities from 1961 to 1981. His periods of operational and eligible war service were listed in the T-documents. The relevant period for purposes of this matter was the eligible service served from 7 December 1972 to 29 September 1981. The period during which Mr Aitken claimed that his condition of osteoarthrosis of the right hip was aggravated within the terms of the legislation, was aboard HMAS Brisbane, where he served for approximately a two year period at sea between 1976 and 1979.
Mr Aitken told the Tribunal that he had a motor vehicle accident at midnight on 3 October 1969, a head-on collision with a vehicle which had been on the wrong side of the road. Mr Aitken described the accident, explaining how severe it had been, and stated that it had destroyed his career, interfering with the plans he had to be at sea. He said that after lengthy medical interventions, he had been transferred to the naval police, but that because he did not like that work, he was finally recategorised and was able to return to sea.
Mr Aitken described his time on HMAS Brisbane in early 1972, explaining that the ship was a destroyer, and had tight stability so that the guns could be used to maximum efficiency. This, however, rendered it very rough and uncomfortable, and being a Petty Officer, he had to supervise in the boiler rooms which meant he often had to be up and down four levels of steel ladders. He gave evidence of having injured himself and having two weeks off work; however there was no record of this. Mr Aitken explained that no records were kept of minor ailments, even having stitches was not considered sufficiently important to record, he said. He said that on other occasions, when he felt pain, he would simply take analgesics and lie down till it eased off. He said that he had no pain at all until the incidents on HMAS Brisbane which he described as being smashed onto the deck in heavy weather,. Mr Aitken stated that following those incidents the pain was virtually present all the time.
Mr Aitken said that he transferred to HMAS Sydney, an aircraft carrier, which he found very rewarding. The structure was more stable and the ladders were easier to manoeuvre, he said.
Mr Aitken said that he spent two years at sea between 1976 and 1979. He said that he was "fit for all sea duties" when he went back, and was happy about that. He said that unless he did "something stupid", he was fine, although he always experienced pain, aching and discomfort when it rained. Mr Aitken also said that during that period he was aboard HMAS Brisbane, and when the weather was rough, it affected his hip. He said that it felt like his legs were being driven up inside him. Mr Aitken said that he could carry out all the duties, climbing up and down and "doing the rounds", checking everything, even though some pain resulted from those activities. He said that at times, however, it was so rough that he was caught up and smashed back onto the deck on several occasions. After some incidents of that he experienced pain going up and down the ladders.
Mr Aitken said that after 1979, he was at naval headquarters at Garden Island where he was assistant to the fleet engineer. He said that the ships had to be checked each year and he experienced pain doing his work, climbing up and down ladders. Mr Aitken gave evidence that one leg was half an inch shorter than the other after the accident, and that his limp became worse, and his hip sore. He said that the more pain he felt in his right hip, the more he limped.
In cross-examination, Mr Aitken was referred to the reports of Doctors Benanzio and Hyde Page, who had recorded that Mr Aitken had reported no discrete injuries on board ship. He was asked why he had not reported specific incidents of injuries and problems aboard ship, when indeed he had recounted specific incidents to the Tribunal. Mr Aitken explained that he thought that the doctors were asking whether he had any further broken legs or arms, to which he replied that he did not.
Mr Aitken was cross-examined about his work on his dairy farm from 1981 after leaving the Navy. He agreed that it was hard work but said that he loved the country, and in addition, had six children for whom to provide. However, he described that the terrain was not flat and that this caused him pain, so that he changed the practices on the farm to suit his hip, as he put it.
Mr Aitken said that he had now retired and lived on 60 acres where he grew beef cattle, and had three children at home.
MEDICAL EVIDENCE
evidence of dr m benanzio - orthopaedic surgeon
Dr Benanzio, whose reports of 20 October 2000 (Exhibit A1) and 30 October 2000 (Exhibit A2), were before the Tribunal, gave oral evidence. Dr Benanzio had examined Mr Aitken in July 2000. Dr Benanzio was referred to page 4 of his report, of 20 October 2000, and asked whether he had any record of a discrete joint injury suffered by Mr Aitken. He had there recorded:
"In the history given to me there is no report of discrete injuries between patient's discharge from St Vincent's Hospital on 6th November 1969 and his discharge from the Navy on 29 September 1981."
Dr Benanzio acknowledged there was no record of Mr Aitken having two weeks on sick leave due to injury while on board ship. He said that he knew of the activities on board, and understood there had been several occasions when Mr Aitken had suffered aggravations. He said that he knew Mr Aitken had had to be seen by the ship's doctor on several occasions due to acute pain. Dr Benanzio said that he knew that moving around on board ship, in rough seas, had aggravated Mr Aitken's condition. He did not know a specific date of an incident but said that he knew of the activities on board engaged in by Mr Aitken as a carpenter, and that walking up and down the ship's ladders in high seas caused strains to the right hip. When cross-examined regarding whether a discrete joint injury had taken place, Dr Benanzio stated that at sea there was continuous trauma, and a series of little strains, with repeated jarring and twisting.
Dr Benanzio was referred to the report of Dr Ellis, dated 25 November 1971 (T3/39) in which Mr Aitken had been certified "Fit for all duty" before he had returned to sea, and where Dr Ellis had also stated that Mr Aitken had "Past history of right fractured acetabulum leading to osteo arthritis". Dr Benanzio's comment was that osteoarthritis following a trauma and fracture such as that experienced by Mr Aitken, was inevitable. He also commented that it was not clear whether Dr Ellis had observed clinical or radiological signs of osteoarthritis. The Tribunal noted that Mr Aitken returned to sea in February 1972, and that in a Report of the Medical Board of Survey, dated 13 March 1973, Mr Aitken was recorded under the heading of "Members Statement" as having said "I feel 100%".
Dr Thorpe of the Tribunal asked Dr Benanzio whether he found flexion deformity when he examined Mr Aitken, as he had not recorded any. Dr Benanzio said that when he tested Mr Aitken, he did not find fixed deformity, adding that the evolution of osteoarthritis was a slow process and that there would be periods when Mr Aitken would be fine.
Dr Benanzio stated that Mr Aitken's right lower limb was shorter than his left, and that:
"the nature and conditions of his activities in the Navy most likely contributed to the perpetuation of right hip discomfort related to the acetabular fracture of 4th October 1969."
Dr Benanzio also stated in his report (Exhibit A1):
"I suggest that such repeated episodes of aggravation of the right hip condition, caused by the nature and conditions of his activities on board, are consistent with the Statement of Principles Concerning Osteoarthrosis (Instrument No.41 of 1998) Factor 5(v) and Statement of Principles (Instrument No.42 of 1998) Factor 5(u)."

medical report of dr m hyde page - orthopaedic surgeon

The report of Dr Hyde Page dated 2 August 2001 was before the Tribunal as Exhibit R2. Dr Hyde Page who had examined the Applicant in May 2001, referred to the 1969 motor vehicle accident and stated as follows:
"After making a reasonable recovery from his hip injury he continued his service in the Navy and was back at sea working as an Engineering Mechanic between 1972 and 1980. Here he worked in the Boiler Room doing normal work duties and was not inhibited by his hip and back.
…
In his right hip there was slight irritability of the hip with rotation in flexion but he had virtually a full range of hip movement although there was a fixed flexion deformity of about 20 degrees.
…
The general nature of this man's conditions of duty in the Navy working in the Boiler Room for a number of years has not significantly contributed to his right hip discomfort.
…
I think the MVA in 1969, where he suffered a fracture of the right acetabulum has contributed to his right hip discomfort. It needs to be pointed out however, that he still only has minimal osteoarthritis and no major abnormality seen in the acetabulum itself on xray.
…
This man does not give any discrete injuries during his period of operational and eligible defence service.
…
I do not agree with the conclusion of Dr Tom Claffey. I think this man's major problem is the lumbar spondylitis and osteoarthritis in his lumbar spine rather than the mild osteoarthritis and stiffness in his right hip joint."

medical reports of dr p a hefner - orthopaedic surgeon

There were reports of Dr Hefner dated 27 March 1996 at T6, and 11 February 1997 at T7. In his 1996 report Dr Hefner opined:
"At this examination I saw xrays of the lumbo-sacral spine of 5.3.96 which show degenerative changes particularly at the L4-5 area, and also even in the upper lumbar region.
…
I also had some xrays taken of his right hip which certainly show the beginnings of an osteoarthritic process …
As far as his hip is concerned, he also has loss of movement, anthying (sic) up to 1/3 of movement in his right hip, with corroborating osteoarthritic changes in the right hip."
At T7/56, Dr Hefner opined:
"Examining his right hip, the main findings here are that the leg is shorter than the left, that the leg is held in external rotation of the hip, there is virtually no internal rotation possible and he has 1/3 range of external rotation from his fixed held external rotation, he has no extension possible but there is no fixed flexion deformity, and he has about 2/3 range of flexion.
As stated previously I had seen xrays which show the presence of an osteoarthritis of the right hip, and this would be confirmed by the physical findings."

medical report of dr t claffey - orthpaedic surgeon

Dr Claffey's report of 18 February 1998 was before the Tribunal at T22. In his summary and prognosis he wrote:
"I am unable to work out from the notes who gave this man the impression that his complaints were due to lumbar spondylosis. He certainly has some low back degeneration and slight low back stiffness, but nothing that I would consider abnormal in a man in his middle fifties who has led an active working life. I would have to agree with the Tribunal that I could not accept that multiple minor traumata on board a ship would be responsible for lumbar spondylosis. … I believe his main and continuing problem at this stage is the arthritis in his right hip, which is undoubtedly secondary to the fracture of his acetabulum, which occurred in 1969. … I would consider he is only now fit for light work or work of a managerial or supervisory nature. I do not consider that this is due to lumbar spondylosis but to osteo-arthritis in the right hip."

SUBMISSIONS AND CONCLUSIONS

In coming to the correct and preferable decision regarding Mr Aitken, the Tribunal had to take into account the evidence both written and oral, the case law, legislation and SoPs, to decide whether Mr Aitken's claim that his osteoarthrosis of the right hip was aggravated aboard HMAS Brisbane in the Navy, during his eligible service, and whether the aggravation was therefore war-caused pursuant to section 9 of the Act.
The Tribunal noted that the Veteran's disabilities accepted as war-caused were, irritable bowel syndrome, bilateral sensori-neural hearing loss, and post traumatic stress disorder with anxiety state. Mr Aitken's claim for pleural plaques to be accepted as war-caused had been rejected by the Repatriation Commission in its decision of 28 July 1999 (T11), and by the Veterans' Review Board in its reviewable decision of 20 January 2000 (T15), before the Tribunal. However, at the hearing, the Respondent conceded that the condition of pleural plaques was to be accepted as war-caused, and the Tribunal did not therefore consider that issue at all. Mr Aitken's non-accepted disabilities were lumbar spondylosis, fracture of the right acetabulum and localised osteoarthrosis of the right hip.
There was no disagreement, and the Tribunal was mindful that Mr Aitken served his country in the Navy from 5 May 1961 until 29 September 1981 with various periods of operational service. The period of operational service closest to midnight 3 October 1969, the date of the motor vehicle accident ("MVA"), was 19 September 1968 to 12 April 1969 in Vietnam, followed by eligible service from 7 December 1972 to 29 September 1981. The MVA did not fall within either of those periods, but Mr Aitken claimed that the nature of his duties aboard Navy ships after his return to sea following the MVA, and from 24 August 1976 to 28 September 1979 on HMAS Brisbane, and during eligible service, was such that aggravation of his osteoarthrosis of the right hip occurred, and that this should be accepted as war-caused.
Given Mr Aitken's eligible war service, the Tribunal was required to consider his claim pursuant to section 120(4) of the Act, and so decide the matter to its reasonable satisfaction.
For the sake of completeness, the Tribunal noted that the MVA was very serious, that Mr Aitken spent a considerable period in hospital and that, amongst other injuries, he fractured his right acetabulum. There was no dispute that the accident did not occur within either operational or eligible service, and the Tribunal accepted that the osteoarthrosis of the Applicant's right hip was a direct result of that incident, and that its development is a continuing process.
The Tribunal was mindful of Mr Aitken's evidence that this accident interfered with his plans to remain at sea, but that with his excellent motivation, he managed to recover and make a statement which was recorded at T3/42 on 13 March 1973, in a Report of Medical Board of Survey as "I feel 100%".
Mr Winship submitted on behalf of the Applicant that HMAS Brisbane on which he was posted, was a gunnery ship with tight stability, that is, during heavy seas it rolled and came upright sharply. He submitted that it was due to this movement that Mr Aitken suffered severe episodes of pain, that his hip was tender to touch and he limped at times. The limping, Mr Winship submitted, was in line with the altered mobility which formed part of the requirements in SoP Instrument No.42 of 1998. Mr Winship submitted that Mr Aitken took analgesics for his symptoms and signs of pain which went on for days at a time. He submitted that Mr Aitken had ongoing pain for the two years he was on board ship, and that altered mobility would last for at least ten days. He submitted that the definition of trauma to a joint from the relevant SoP should be used as a guide.
Ms Pacey, for the Respondent, referring to the SoP, submitted that it could not be used as a guide at all, but that adherence was imperative. She cited Connors v Repatriation Commission (2000) 59 ALD 61 and Harris v Repatriation Commission (2001) 62 ALD 174, and Harris v Repatriation Commission (2001) 62 ALD 161 in support of her argument.
Mr Winship referred to two incidents in which Mr Aitken said he was thrown to the deck during rough seas, and had attended medical personnel on board ship. He referred to Dr Benanzio's evidence regarding what constituted a discrete injury, submitting a "twist" or a series of repeated injuries, recurring stress and trauma, led to aggravation of Mr Aitken's osteoarthrosis of the right hip. Ms Pacey submitted on the other hand, that both Dr Benanzio and Dr Hyde Page had recorded that no discrete injury had been reported by the Applicant in his history. She submitted that the incident described before the Tribunal, of falling on board ship, had been fabricated and heard for the first time at the hearing. She emphasised there had been no record of any treatment for a fall which Mr Aitken claimed he had sustained. Ms Pacey submitted that the Applicant did not therefore meet the definition of trauma in the SoP.
Mr Winship referred the Tribunal to T3/42, (dated 13 March 1973), where Mr Aitken had been recorded as saying "I feel 100%", before his appointment to HMAS Brisbane. By way of contrast, he directed the Tribunal to T3/44, the Statement of Mr Aitken on discharge dated 7 August 1981, where he had written:
"1. Pain R hip joint – aches when tired, & as it rains …
2. hip –aggravated by walking up & down ladders & general carpentry duties. …"
Mr Winship submitted that even Dr Hyde Page had not indicated there was no contribution from the movement of the ship. Referring to T3/39, Mr Winship submitted that before joining HMAS Brisbane, Mr Aitken was found to be "fit for all duty", and yet on discharge, he had pain in his right hip which had been aggravated by that duty. Mr Winship referred also to the reports of Dr Benanzio and Dr Claffey in support of the Applicant's claim.
The Tribunal considered the evidence and submissions, and was mindful that in order to meet the requirements of the SoPs on osteoarthrosis, there had first to be a "trauma to a joint". The definition of trauma to a joint in Instrument No.42 of 1998 was as follows:
"The definition of "trauma to a joint" was as follows:
"'trauma to a joint' means a discrete joint injury that causes the development within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of that joint. These acute symptoms and signs must last for a period of at least 10 days immediately after the injury occurs."
The Tribunal was mindful that in Instrument No.20 of 1999, the definition included conditions where medical intervention had been given, e.g. immobilisation of the joint or limb by splinting … injections … aspiration of that joint or surgery. In SoP No.82 of 2001, (promulgated 9 October 2001), the trauma was characterised as "trauma to the affected joint", with the definition of trauma identical to that in Instrument No.20 of 1999.
Referring to the above definitions, the Tribunal noted that there was no evidence regarding any particular medical intervention in respect of Mr Aitken on board HMAS Brisbane, and it therefore looked to whether there had been a discrete joint injury, and what the effects of that were claimed to be. The Tribunal was mindful that to meet the definition of trauma, the person must have suffered acute signs and symptoms of pain, swelling, tenderness and altered mobility, for a period of at least ten days immediately after the injury.
The Tribunal was mindful that if Mr Aitken suffered a discrete injury, there was no record of it on board ship. Neither did he tell Dr Benanzio in July 2000, nor Dr Hyde Page when he saw him in May 2001. Both recorded in their respective reports that there had not been a discrete injury, although Dr Benanzio who acted rather like an advocate for the Applicant, tried to explain that a number of micro traumas or strains may have occurred to Mr Aitken on board ship. Dr Benanzio said, in his oral evidence, that several small aggravations could be a number of discrete events.
The Tribunal was mindful that there was nothing available from the ship's records which indicated Mr Aitken had sought medication or other assistance for his osteoarthrosis of the right hip, and did not accept that he had fallen heavily, to meet the definition of trauma in the relevant SoP due to rough seas and the construction of the ship. Mr Aitken told the Tribunal that he had at one stage taken in excess of ten days sick leave on board in connection with falls. There was no record of such leave taken, and the Tribunal could not be convinced to the requisite standard that this had occurred as recounted by Mr Aitken in his evidence.
The Tribunal noted that to meet the requirements of the definition of trauma in the relevant SoPs, and to be able to substantiate his claim, Mr Aitken would have to have, within 24 hours of the injury, suffered symptoms and signs of pain, tenderness and altered gait, lasting a minimum of ten days.
The Tribunal accepted that Mr Aitken had suffered a serious accident in 1969, that his motivation to return to sea was excellent, and that due to the fact one leg was shorter than the other, he no doubt limped when he suffered pain.
There was no technical evidence before the Tribunal regarding the construction of the ship, but neither was there a rebuttal regarding the fact that it had a particular purpose and was built accordingly, therefore causing particular difficulties for someone like Mr Aitken who had to climb numerous ladders as part of his job. The Tribunal accepted that he experienced those difficulties. There was no documentary evidence of the incidence of heavy seas, and again no rebuttal that they occurred. The Tribunal was satisfied Mr Aitken had encountered heavy seas from time to time in the two years during which he claimed he had aggravated his osteoarthrosis of the right hip, and he may well have fallen on deck. However the Tribunal was not satisfied Mr Aitken met the definition of trauma in the relevant SoPs.
In considering Mr Aitken's recollection of the falls, the Tribunal took into account that the Act is beneficial legislation, and that pursuant to section 119 of the Act, account can be taken of events even where there is no clear documentary record. However, the Tribunal did not accept that Mr Aitken had suffered the accidents on board ship as recounted at the Tribunal, that is with ten days of pain, altered gait and the other threshold criteria to meet the definition of trauma in the SoP.
The Tribunal could not accept Mr Winship's submission that adherence to the requirements of the SoP could be approximate or in spirit only, and preferred Ms Pacey's submission, correctly stating that the SoP had to be applied and interpreted strictly.
As the Tribunal could not, on the balance of probabilities, accept Mr Aitken's version of events with regard to the aggravations of his osteoarthrosis of the right hip on board HMAS Brisbane in the period between 1976 and 1979, his claim that these aggravations and the worsening of his osteoarthrosis right hip was war-caused could not be upheld. Therefore the decision of the Tribunal was as follows.
DECISION
The Administrative Appeals Tribunal determines that the decision under review of the Repatriation Commission dated 28 July 1999 as affirmed by the Veterans' Review Board on 20 January 2000, which held that Mr Hugh Aitken's conditions of osteoarthrosis of the right hip and pleural plaques were not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986, is varied to find that:
(i) that part of the decision under review concerning the condition of pleural plaques, by agreement of the parties, is set aside, and in substitution, the condition of pleural plaques is accepted as a war-caused disability; and
(ii) that part of the decision under review concerning the condition of osteoarthrosis of the right hip is affirmed.

The matter is remitted to the Repatriation Commission for assessment of Mr Aitken's entitlements to pension pursuant to the legislation

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member, Dr M E C Thorpe, Member and Mr A Limbury Member
Signed:         .....................................................................................
  Associate
Date of Hearing  6 August 2000
Date of Decision  7 November 2001
Solicitor for Applicant               Mr B Winship
Advocate for the Respondent Ms G Pacey