Baker, Ronald Thomas William v Repatriation Commission

[1983] FCA 271

Re: RONALD THOMAS WILLIAM BAKER
And: REPATRIATION COMMISSION
N.S.W. G. 142 of 1982
Repatriation Act 1920

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
St. John J.

CATCHWORDS

Repatriation Act 1920 Section 47(2) - claim for pension - onus of proof - whether majority of Tribunal misdirected itself.

REPATRIATION ACT 1920 Section 47(2)

HEARING

SYDNEY

#DATE 12:10:1983

ORDER

(1) The appeal is upheld.

(2) The Commonwealth of Australia is ordered to pay to the applicant a pension in respect of his incapacity arising from lumbo-sacral spondylosis.

(3) The respondent is ordered to pay the applicant's costs.

JUDGE1

This is an appeal from a decision of the Repatriation Review Tribunal whereby that Tribunal confirmed the decision of the Repatriation Commission ("the Commission") rejecting payment of a pension for an incapacity described as lumbo-sacral spondylosis.

Ronald Thomas William Baker, the applicant, served in the Royal Australian Air Force from 12th January 1943 until 12th November 1943 and, whilst training at Ascot Vale, he experienced pain in the lumbar area of his back which radiated to his upper legs. On discharge, there is no record of back trouble, except that his medical history records slight scoliosis of the spine which did not exist on his enlistment.

The grounds of appeal centre around the approach of the majority of the Tribunal in its application of the onus of proof on the Commission which, in S.47(2) of the Repatriation Act 1920, requires the Commission to grant the application unless it is satisfied, beyond reasonable doubt, that there are insufficient grounds for granting the application or allowing the appeal. This section has been considered by the High Court in Repatriation Commission v. Law (1981) 36 A.L.R. 411.

All members of the Tribunal accepted the applicant as a truthful witness and medical records support that, whilst serving at Ascot Vale, he did suffer pain in the lumbar region, which extended down both legs. Those records also reveal that he was treated with ray lamp, that he was not hospitalised and that there were no such symptoms on discharge.

In support of his claim, the applicant relied upon a medical report of an orthopaedic surgeon, Dr. Bhattacharyya, who both examined and treated the applicant for his back condition. That specialist said that the applicant "told me that thirty years ago when he was in war service he was involved in an injury for which he was treated with analgesics, ray treatment and exercises". He found a prolapse of the disc between L.4 and L.5 and expressed the opinion that calcification of the disc had been present for a long time and that there was "no way of putting a time limit as to when it could occur, but because of the disc being completely calcified", he felt "that it must have been present for a long period of time for such changes to occur". He then expressed the opinion that it was possible that it could have occurred during the war service where he received the back injury. It is significant that what that specialist described in the history was an "injury" to the back, the majority of the Tribunal interpreted that word in that report as meaning that the applicant, in giving his history, had stated that there had been no trauma, in the sense of a single trauma of major degree as described in the extract before the Tribunal headed "Spondylosis". The applicant did state in evidence that he could not remember any severe trauma, but did say that he was engaged in activities such as jumping off aircraft wings which may have done something to his back. The applicant also stated that, in discussion with Dr. Bhattacharyya, that specialist had said that his back condition, producing the symptoms from which he suffered during service, could have been the result of a sudden twist or something of that nature. It is also significant that the applicant's symptoms from his back condition were described on a number of occasions in similar terms to those he described as having during his back trouble in service.

In the medical reports before the Tribunal, there was no attempt by the Commission's medical officers to explain the cause of the symptoms produced by the back trouble the applicant had whilst on service. Symptoms experienced then, particularly the location of the pain and its radiation to the lower limbs, are the same as those of which the applicant complained on many occasions since discharge.

The scoliosis, apparently developed during a relatively short period of service, has not, in my view, been adequately explained. The majority of the Tribunal relied upon an inference drawn by the departmental medical officer, from the absence of reference to it by Dr. Winer. I quote from the majority reasons:-

"Whilst slight scoliosis was noted on discharge this condition must have been postural and not of any aetiological importance as it was not mentioned in the clinical notes from Dr. C. Winer . . . . .".

Whilst such an inference is possibly, or even probably, the correct one, the assumption that Dr. C. Winer turned his mind to the significance or otherwise of that scoliosis is to attribute to Dr. Winer an infallibility he may not deserve.

The strength of expert opinion, in areas where scientific accuracy is not always possible, varies.

In their review of the medical evidence relied upon by the Commission, the majority of the Tribunal said:-

"The thrust of this opinion was that the incapacity was likely to be due to wear and tear occurring with advancing age, genetic predisposition and multiple small traumata resulting from heavy manual work over the years."

The word "likely" is too weak to rely upon to conclude that the Commission has discharged the heavy onus upon it. Criminal juries are not told they can convict if it is likely that the accused committed the offence.

In their findings, the majority of the Tribunal said this:-

"(1) The Applicant did not suffer trauma to his back whilst on service of sufficient degree to meet the criteria for that trauma, if so suffered, to be aetiologically important in the development of spondylosis.

(2) The Applicant has suffered problems with his back for a long period of time.

(3) Whilst there appears on file reference to motor vehicle accidents, which were not investigated by the Commission, the Applicant himself states that he cannot recall any trauma to his back, therefore the matter of motor vehicle accidents becomes irrelevant.

(4) The two points, as quoted from Dr. Bhattacharyya's report, likewise become irrelevant as there was no back injury.

(5) The medical opinion concerning the Applicant's condition has not been challenged and, in the opinion of the Tribunal, presents a reasoned and logical explanation as to the cause of the Applicant's lumbo sacral spondylosis."

The applicant, through his counsel, attacks the approach in (5) above as being inconsistent with the proper application of the standard of proof of beyond reasonable doubt and, in particular, submits that a reasonable and logical explanation of the cause of the spondylosis is not sufficient to satisfy that standard. Taken with the totality of the evidence, and the absence in the medical evidence relied upon by the Commission of any explanation as to the symptoms suffered by the applicant during his service, I am of the opinion that there has been a failure on the part of the majority to properly address themselves to the question of the onus on the Commission.

In substance, many of the comments on the evidence I have made herein, repeat what was said by the Deputy Chairman of the Tribunal, J. A. Flett Esquire, who dissented, and whose reasoning and conclusions I endorse. Having regard to the acceptance by all members of the Tribunal of the applicant's evidence and the opportunities afforded to the Commission of presenting its case on previous occasions, I see no purpose in remitting the matter. Indeed, such a course would be unfair to the applicant.

The formal orders I make are:-

(1) The appeal is upheld.

(2) The Commonwealth of Australia is ordered to pay to the applicant a pension in respect of his incapacity arising from lumbo-sacral spondylosis.

(3) The respondent is ordered to pay the applicant's costs.