Bowie and Repatriation Commission
[2000] AATA 563
•31 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 563
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/415
VETERANS' APPEALS DIVISION )
Re PAUL WILLIAM BOWIE
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date31 May 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/415
)
VETERANS' APPEALS DIVISION )
Re PAUL BOWIE
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M.D. Allen
Date 31 May 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
The Applicant's osteoarthritis of his right wrist is a defence caused disability.
The matter of assessment of pension is adjourned to a date to be fixed.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Osteoarthritis right wrist. Injury occasioned when using a water slide in Singapore whilst member of RAN on shore leave. Did Applicant meet relevant Statement of Principles? Was injury occasioned while on Defence Service or in a private capacity?
Veterans' Entitlements Act 1986 - s70, subs120(6)
Repatriation Commission v Smith (M J) 15 FCR 327
Caserotto v Australian Postal Commission 86 ALR 399
Repatriation Commission v Keeley [2000] FCA 532
Holthouse v Repatriation Commission 1 RPD 287 distinguished
Re Staddon v Commonwealth of Australia 5 ALD 253 followed
The Commonwealth of Australia v Staddon 1 FCR 95
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Ivanka Mamic
....................................................................................Associate
Date of Hearing 31 May 2000
Date of Decision 31 May 2000
Counsel for Applicant Mr J FitzgeraldSolicitor for Applicant Rockliffs
Advocate for Respondent Mr G Wright, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N99/
By MR M.D. ALLEN, SENIOR MEMBER
PROWSE and repatriation department
Sydney, 10 MAY 2000MR ALLEN: In this matter, the applicant pursuant to an application lodged with the Tribunal on 19 March 1999 seeks review of a determination by a delegate of the respondent who on 25 June 1998 refused his claim to have the condition of osteoarthritis of the right wrist, osteoarthritis of both hands and tenosynovitis of the hand and right bilateral attributed to his Defence Service. That decision was affirmed by a Veterans Review Board on 2 February 1999. As I understand the matter before me today the condition of osteoarthritis of the left hand and tenosynovitis bilateral have not been pursued but what is before me is the condition of osteoarthritis of the applicant's right wrist. The applicant's eligibility is pursuant to section 70 of the Veterans' Entitlements Act 1986 as amended which states inter alia paragraph 5:
That an injury or a disease contracted by a member of the Services shall be taken to be Defence caused if the injury or disease arose out of or was attributable to any Defence Service.
Subparagraph (d) of subsection (5) of section 70 makes reference to the aggravation of an injury or disease which was suffered or contracted during Defence Service but not arising out of that Service. If the said injury or disease was aggravated by Defence Service then again, the respondent is liable. Subsection (4) of section 120 of the Veterans' Entitlements Act sets out the standard of proof in relation to this claim and states inter alia:
That the Tribunal must decide the matter to its reasonable satisfaction.
As has been pointed out by the Full Court of the Federal Court in Repatriation Commission v Smith MJ, 15 FCR 327, the term reasonable satisfaction equates to proof on the civil standard, that is to say, on the balance of probabilities. Subsection (6) of section 120 of the Act states:
That there is no onus of proof upon either party to this review.
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©Auscript Pty Ltd 2000The facts for me are within a relatively small compass. On 2 April 1981 the applicant, who was a serving member of the Royal Australian Navy being part of the crew of HMAS Hobart was on shore leave in Singapore. He there attended a premises which went under the name of the Big Splash Slippery Dip which is, I understand the evidence, was a swimming complex which also contained a water slide . It was whilst descending this slide that he came in contact with another person and in order to avoid or mitigate collision he thrust out his right hand and the right hand was bent backwards. He immediately had some pain and attended at a British Military Hospital where his hand, which by this had become swollen like a balloon or rather his wrist which had become swollen up like a balloon was x-rayed and although the applicant had trouble closing his fist he was told that the x-ray was read so as to disclose no break.
He still had pain in his wrist and went back to his ship where he saw a sick berth attendant. The report of that sick berth attendant is contained in document T at page 11 and notes that the applicant had hit a person at the end of a water slide, the wrist was twisted back and swelling developed approximately two hours later. There is then an entry, nil loss of movement. As I understand the applicant's evidence no tests were carried out and I also note that the person making the notes was simply an able bodied seaman sick berth attendant, the applicant had not seen a doctor or use Naval parlance, a surgeon. He then had the wrist bandaged plus some ray heat lamp treatment and some liniment applied.
He attended to his duties as a cook and found that he could only just hold a knife which was used for cutting meat, vegetables etcetera. His wrist continued to be swollen and to hurt. He continued with his duties for the next 12 days and found he could only just hold a knife. As the symptoms got worse with increased swelling and increased lack of movement he attended a saw the Surgeon Lieutenant aboard HMAS Hobart who transferred him by helicopter to an American vessel, USS America, that had x-ray facilities. He was there x-rayed and again, the report is that there was no fracture of the scaphoid bone, however, it was suggested by Surgeon Lieutenant on that vessel that the wrist should be set in plaster, but he was overruled by a Surgeon Commander who used words to the effect, quote:
Bind it tightly he will get more use out of it.
The wrist therefore was bound tightly and he was relocated back to the Hobart and his job was changed from that of a cook to a supervisor of the ward room so that no work was required of him in preparing food. He remained as a ward room supervisor for the rest of
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©Auscript Pty Ltd 2000the voyage being one to two months and the wrist remained bound for about one month. The pain settled but he continued to have a problem with the wrist. After leave after that voyage he was re-posted to HMAS Penguin and there he was a supervising leading cook with five people working under him and didn't have a great deal of work to do in using a knife to prepare food.
Because of another accident to his back he was discharged from the Navy as medically unfit. Documents reveal that after a period of unemployment he commenced work as a chef in 1983 but he said that even while working as a chef then, his right wrist played up and it got to the point where he had to use his arm to assist when cutting and also he gave evidence later that in order to use a knife, being a chef's knife he had to bear down upon the blade with his left arm and hand because of the lack of power in his wrist. Reverting back to when he was seen by the Surgeon Lieutenant on HMAS Hobart that document is at T3, page 9 and the notes read:
Injured right wrist three weeks ago, x-rayed, no abnormality detected, no improvement since. Clinically consistent with fractured scaphoid, re x-rayed USS America NAD and the prescription is to continue strapping.
What is to be noted is the entry, Clinically consistent with a fractured scaphoid. That notation takes on some importance when it is compared with the evidence today of Dr Bonanzio, an orthopaedic surgeon who tendered the Tribunal where it became exhibit A6 an extract from the work, Fractures and Joint Injuries by Sir Bernard Watson Jones. Part of that extract reads:
Negative radiographic findings do not always exclude a recent scaphoid fracture. The clinical diagnosis of recent fracture of the scaphoid based on the history and the physical signs of a fusion with localised tenderness is often more accurate than radiographic evidence which is by no means infallible. Films of perfect quality taken on the day of injury may show no evidence of the fracture that has been sustained. If clinical features suggest a probably fracture and terra-posterior and/radiographs show no evidence of it the radiographic examination should be repeated two or three weeks later. Only negative radiographic findings several weeks after injury is of certain value in excluding recent fractures of the scaphoid.
The extract also states:
The fracture may occur from falls on the outstretched hand.
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©Auscript Pty Ltd 2000Which is, of course, how this applicant obtained his injury. As Dr Bonanzio said in his evidence, the clinical diagnosis is often more accurate than radiographic examination and that lack of evidence of x-ray is inconclusive. In his report of 3 June 1999, which became exhibit A2, Dr Bonanzio notes:
That x-rays of 14 April 1998 clearly show right wrist osteoarthritis with joint space narrowing and marginal spurring of the distal radius.
And he concludes:
It is my opinion that on the balance of probabilities in 1981 the patient sustained a right wrist trauma, meaning a discreet joint injury which caused the developed within 24 hours of the injury being sustained of acute symptoms which were considered by the Navy medical officer as clinically consistent with fractured scaphoid. These acute symptoms and signs lasted for a period of at least 10 days immediately after the injury occurred.
Dr Selby Brown, orthopaedic surgeon was called by the respondent, he also took a history that the applicant after the injury where his thumb as forced into a hypo-extended position, the water slide, that the applicant immediately noted swelling on the radial and dorsal aspects of his right carpus and right wrist and extending along the dorsal aspect of his distal right forearm and severe amount of pain at the same site. He concludes his report:
It is possible that the osteoarthritic change now apparent in the x-ray of his right wrist is a consequence of damage he sustained to the articular cartilage of this joint at the time of his injury incident in Singapore in July [sic] 1981 but I do not believe that there is any way to prove or disapprove this is so.
As I understood with Dr Selby Brown's evidence today his opinion is, in essence, that the applicant has x-ray signs of osteoarthritis of the right wrist but the condition or its severity is masked by his tenosynovitis. However, he concedes that there is x-ray evidence of the osteoarthritis that is to say, the osteoarthritis does exist. During the evidence of Dr Bonanzio he was asked regarding the effect upon the applicant of continuing to use his right wrist having had the fracture. He Stated that any subsequent degeneration would have been accelerated. Subparagraph (d) of subsection 5 of section 70 of the Veterans' Entitlements Act refers to an aggravation or was aggravated. In Caserotto v Australian Postal Commission 86 ALR 399 at 405, after referring to cases such as Johnson v The Commonwealth
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©Auscript Pty Ltd 200043 ALR 559 at 564 and Ogden Industries Pty Limited v Lucas 116 CLR 537 at 593, Hill J said:
These quotations illustrate what appears in any event from the ordinary English meaning of the words "aggravation" and "acceleration", namely that aggravation connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease which, if not invariably, will usually in any event be a progressive one.
However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease. However, in this matter, as I understand Dr Bonanzio's evidence I could not find aggravation as opposed to acceleration.
Because the applicant's claim was made after the first day of July 1994, although I must be satisfied the matter on the balance of probabilities, section 120B of the Act provides that in coming to that satisfaction I can only be so satisfied if a so-called statement of principle upholds the contention that the injury or disease is on the balance of probabilities connected with the applicant's defence service. There are three statements of principles each of the other two amending the original first which were in force at the time the original decision in this matter was made.
As was pointed out by the Full Court of the Federal Court in Repatriation Commission v Keeley 2000 FCA 532, the statement of principle to be applied is that which existed at the time of the original decision. I would only interpose that although I understand that the Repatriation Commission has filed an application seeking special leave to appeal Keeley the matter is still at a very early stage. Special Leave has not been granted and I do not consider that I should do otherwise than hold myself as being bound by the decision in Repatriation Commission v Keeley
The effect of the particular instruments being the statements of principle which were taken in as exhibits in this matter being exhibits R4, R5 and R6 is that a factor connecting osteo-arthritis with service is that if an applicant suffered a trauma to the relevant joint before the clinical onset of osteo-arthritis, trauma to the relevant joint being defined as a joint injury caused by the force of an extraneous physical or mechanical agent 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 the joint where such acute symptoms and signs last for a period of
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©Auscript Pty Ltd 2000at least ten days immediately after the injury occurs unless medical intervention has occurred. Where medical intervention for the injury has occurred, for example splinting, cortico-steroid injection, surgery, and there is evidence relating to the extent of injury and treatment, such evidence may be considered.
At the start there was a diagnosis made. Some three weeks after the applicant's condition was clinically consistent with a fractured scaphoid. There had been trauma to the joint. There was immediate acute symptoms being pain, swelling and as far as altered mobility is concerned the applicant gave sworn evidence today that he did have altered mobility. The notation by sick berth attendant to me is nothing to the contrary and in any event Dr Bonanzio pointed out altered mobility doesn't mean that you can't move it, it simply means that upon movement there is pain.
All round I'm satisfied beyond reasonable doubt that the applicant does meet the statements of principle. The only matter then to consider is the argument by the respondent that the actual accident took place while the applicant was not engaged in defence service but on a frolic of his own.
In submissions in this regard, the respondent pointed to the decision of his Honour, Davies J, in Holthouse v Repatriation Commission which is reported in volume one of Repatriation Pension Decisions at page 287. There his Honour at page 290 said after a submission that:
Were it not for the fact of a transfer the appellant in that case would not have sustained the injury which gave rise to the incapacity.
He said speaking of then provisions of the Repatriation Act:
The provisions are based upon well understood concepts of causation which have been dealt with in many fields of the law particularly in relation to workers compensation legislation.
He said at page 291 of the equivalent section of the Repatriation Act:
It does not in my view abrogate the ordinary principles of causality or dispense with the requirements that the Defence Service be a contributing cause of the incapacity or death. Although the effect of the provision is to extend section 107M(1) it extends that provision by doing away with some of the past concepts which if applied would unduly limit the operation of that principal provision.
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©Auscript Pty Ltd 2000What I deduce from Holthouse is that it is not a – as his Honour put at page 290:
It is an ordinary test of causation and not a new test founded upon the words "but for", so that at the outset one can dismiss any argument which in fact was not put that if it wasn't for naval service the applicant would not have been in Singapore.
However, the test has been applied in very similar circumstances. I refer first of all to re Staddon v The Commonwealth of Australia 5 ALD 253 which at first blush is on all fours with this case. There that case was taken on appeal through The Commonwealth V Staddon 1 FCR 95 where his Honour, Fox J at page 97 after referring to Danvers v Commissioner of Railways New South Wales 122 CLR 529 at 536/537 and The Commonwealth v Oliver 107 CLR 353 stated:
The question in this case like many similar cases is not an easy one and the conclusion is a marginal one. However, I am impressed by the reason set out by the Tribunal and the facts referred to therein in support of the conclusion that the injury did arise in the course of employment. The fundamental matter which seems to me to set a context for the whole is that the injured man was serving in the Navy on a ship then in foreign port and that the ship was there to create a favourable impression on the part of the people of the country both as to the existence and seeming efficiency of the Australian Navy and as to the quality of its personnel.
While in a foreign port, as I understand the facts as found, the discipline is relatively tight. The situation is not at all like one where there is a shore-based unit of the Navy and sailors attend there by day, having their homes in a suburb of some capital city. They are given short periods of leave. They are given it on certain understandings made pretty plain by the officer commanding the ship as to their behaviour and as to their dress and other personal matters into which the Navy in many other circumstances would not intrude.
The leave can be cancelled and the sailors recalled to the ship at any time and with the barest minimum of notice. As I understand it the injured person in this case came back to the ship each evening and set off on his leave in Djarkata during the day. At the particular moment when his injury occurred he was riding a shoot which one is entitled to assume was a joyful activity. Whether or not it involved much physical exercise I do not know. He was, however, a person who had a particular
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©Auscript Pty Ltd 2000skill at swimming and participated in competitive swimming. He belonged to a service not alone in this regard which required a high degree of physical fitness on the part of those who might be called upon perhaps at short notice to go on active service. In the Navy not unnaturally swimming receives particular emphasis.
There is more than one reason why the injured person in the present case should want to go for a swim because the undisputed evidence is that the ship itself, particularly in a tropical area, was very uncomfortable indeed at least for those whose quarters were below deck. From the point of view of the officer commanding the ship I have no doubt that he wanted to encourage people to go on shore leave and obtain their relaxation and indulge in swimming of one sort or another which would give them some relief from the climate and which would perhaps have other advantages such as those I have already mentioned.
It seems to me on the whole that the test stated in the cases to which I have referred particularly those set out in Danvers case are satisfied in the present case. A point was made of the fact that the injured sailor was in fact going down a shoot at the time of the injury and this was in any view catering for his own pleasure. I do not think one can divorce that sort of activity from the use of the swimming complex as a whole and it is not at all foreign to the purposes I have been mentioning that he should have some enjoyment and there should be some incidental activity for his pleasure.
In this matter there were undisputed evidence – the evidence was not even challenged – that the applicant was a serving member of the navy, liable to uphold his own physical fitness and in particular his weight. He had already been spoken to on two occasions about being overweight and had he continued to be so, he would have lost his position. There was physical training on board the ship. When on leave in Singapore uniform was required. It was showing the flag in foreign ports. When he went to do his swimming he was conscious of the physical activity. He preferred to go swimming and maintain his fitness rather than going drinking in a bar. In Singapore he was of course, subject still to naval discipline and also the administrations of any naval short patrole, particularly in Singapore, the British Military Police.
In all those circumstances, it seems very clear to me that it is very like what was set out in paragraph 6 of re Staddon as reported at 5 ALD at page 255, and also as referred to Fox J. Given the whole of the
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©Auscript Pty Ltd 2000evidence before me in this matter, I am reasonably satisfied that whilst undergoing his sporting activities whilst on shore leave, the applicant was still engaged in defence activities. He has met the statement of principles. The osteo-arthritis in his right wrist still exists. Therefore the decision of the Repatriation Commission will be set aside, and this matter remitted to the Commission with the Tribunal's substituted decision that the applicant's osteo-arthritis right wrist is a defence caused disease.
The matter of assessment of pension will, for matters which I raised with counsel, be adjourned to a date to be fixed.
RECORDED : NOT TRANSCRIBED
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