Brand v Repatriation Commission
[2004] FMCA 270
•14 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRAND v REPATRIATION COMMISSION | [2004] FMCA 270 |
| ADMINISTRATIVE LAW – Veterans affairs – lumbar spondylosis and osteoarthrosis of the knees – whether war-caused – wrong Statement of Principles applied for lumbar spondylosis – issue whether “acute symptoms and signs” present – wording the same in both Statement of Principles – result the same from applying correct Statement of Principles – no basis for remission despite error of law – whether proper approach used in assessing hypothesis. |
Veterans' Entitlements Act 1986, ss.9, 9(1), 13(1), 119, 120(1), 120A(3), 120(3)
Repatriation Commission v Delidio (1998) 49 ALD 193
Harris v Repatriation Commission [2000] FCA 873
Harris v Repatriation Commission [2000] FCA 1687
Repatriation Commission v Gorton [2001] FCA 1194
Grundman v Repatriation Commission [2001] FCA 892
Bushell v Repatriation Commission (1992) 175 CLR 408
| Applicant: | THOMAS ARTHUR BRAND |
| Respondent: | REPATRIATION COMMISSION |
| File No: | MZ 309 of 2001 |
| Delivered on: | 14 May 2004 |
| Delivered at: | Melbourne |
| Hearing date: | 10 October 2001 |
| Judgment of: | Phipps FM |
REPRESENTATION
| Counsel for the Applicant: | Mr De Marchi |
| Solicitors for the Applicant: | De Marchi & Associates |
| Counsel for the Respondent: | Mr Hanks |
| Solicitors for the Respondent: | Australian Government Solicitors |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 309 of 2001
| THOMAS ARTHUR BRAND |
Applicant
And
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) which affirmed two decisions of the Repatriation Commission that lumbar spondylosis and osteoarthrosis of the knees, conditions suffered by the applicant, were not war-caused diseases.
The applicant served in the Australian Army from 30 June 1965 until 29 June 1967. He had operational service in Vietnam during the period between 22 April 1966 to 12 May 1967. He claimed to have war-caused lumbar spondylosis and osteoarthrosis of the knees. The respondent, by two decisions, decided that they were not war-caused diseases under s.9 of the Veterans' Entitlements Act 1986 ("the Act"). The Tribunal affirmed the decisions.
The applicant said that he was a radio operator and while serving in Vietnam often had to jump out of helicopters hovering 5 to 6 feet above the ground. On the day he claimed to have suffered the injury, he said that they had to be dropped off on the side of a hill because none of the helicopters could land. They had a minimum time for the soldiers to jump out. He could not say the exact date. He said that the helicopter in front of the one he was in lost the main rotor and went into the ground because it was hovering too low and the hill was so steep. When he jumped out he was carrying a radio. He said he landed awkwardly and the rack that the radio was mounted to dug into his back and he jarred his knees.
The law
Section 13(1) of the Act provides for payment of a pension to a veteran when a veteran has become incapacitated from a war-caused disease. The circumstances in which a disease is taken to be war-caused are set out in s.9(1).
Section 120(1) and (3) of the Act prescribe standards of proof to be used in making a determination under s.13(1) where the claim relates to operational service. Section 120(3) poses the threshold question: does the whole of the material before the decision maker raise a reasonable hypothesis connecting a disease with the particular circumstances of the veteran service? If so, the commission is to determine that the disease was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making the determination in s.120(1).
Section 120A(3) provides that a hypothesis connecting a person's disease with the circumstances of any particular service rendered by the person is reasonable, only if there is in force a Statement of Principles (“SoP”) that upholds the hypothesis.
Tribunals reasons
The Tribunal identified that the process of deciding whether or not an injury or disease is war-caused requires the application of the four step approach laid down in Repatriation Commission v Delidio (1998) 49 ALD 193 at 206. The first step is to consider whether the material before the Tribunal points to a hypothesis connecting the applicant's lumbar spondylosis with the circumstances of his service. The second is to ascertain whether there is a SoP in force in respect to the relevant injury. The third step is to consider whether the hypothesis raised is a reasonable one. The Tribunal did not need to consider the fourth step.
In considering the first step, the Tribunal said that three hypotheses were suggested. The first was that the full infantry load plus wireless caused the lumbar spondylosis. The second was that the back problems were caused or aggravated by continual multiple minor trauma serving as a signaller in an infantry battalion. The third was that the problems are due to trauma to the lumbar spine sustained during service on one occasion when the applicant had a bad landing after jumping out of a helicopter.
The Tribunal identified Instrument No. 165 of 1996 as the relevant SoP for lumbar spondylosis which it should apply. So far as is relevant, that SoP provided that the factor which must, as a minimum, exist before it could be said that a reasonable hypothesis had been raised connecting lumbar spondylosis with the circumstances of the applicant’s relevant service was:
(g) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis.
The SoP contained a definition of “trauma to the lumbar spine” as follows:
"trauma to the lumbar spine " means an injury to the lumbar spine caused by the force of extraneous physical or mechanical agent that causes the development within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of part of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, protest cortícosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered
The Tribunal said that the hypotheses raised concerning the “full infantry load plus wireless” and “continual multiple minor trauma” were not consistent with the template found in the SoP as they did not contain one or more of the factors found in the relevant SoP.
In the third hypothesis raised, the Tribunal said it might at first appear to contain the factor of “trauma to the lumbar spine”, however it was necessary that the “trauma to the lumbar spine” be trauma fitting the definition in the SoP. The Tribunal referred to Harris v Repatriation Commission [2000] FCA 873 and Harris v Repatriation Commission [2000] FCA 1687. The Full Court of the Federal Court approved Finn J's discussion of the meaning of the definition. His Honour said at [30-32]:
30 In the present case the minimum factors the SoP identified that could relate lumbar spondylosis to operational service were the suffering of a trauma to the lumbar spine before the clinical onset of lumbar spondylosis which trauma was itself related to the service rendered by a person.
31 Insofar as the trauma component of those factors is concerned this requires (inter alia) that the injury in question caused the development of "acute symptoms and signs" of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement. Though the preposition "of" only precedes the word "pain" in the SoP's definition I am satisfied that the definition is to be read as if "of" preceded the words "tenderness" and "altered" as well. The applicant has submitted to the contrary, contending that the definition is to be read as if it referred to "acute symptoms and signs of pain and/or tenderness, and [meaning "together with"] altered mobility" etc. When one has regard both to the balance of the sentence in which the definition appears (and particularly to the words "and where such acute symptoms and signs last for a period of at least one week") and to what, ordinarily, would be the work done by the preposition "of" in a sentence constructed in the manner of the definition, the definition must be construed as I have proposed. I should add that that construction is the one propounded by the respondent.
32 The requirement, then, that there be "signs and symptoms" of each of the three stipulated matters necessitates that there be an indication of, or phenomenon evidencing, each: see eg definition II of "sign" and that of "symptom" in the Shorter Oxford English Dictionary ("SOED"). Moreover, given the requirement that the signs and symptoms must be "acute" - ie that they be sharp or act "keenly on the senses": SOED, "acute"; there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc. As the respondent contends, the definition contemplates a significant injury.
The Tribunal concluded that the hypothesis did not fit the template. It considered that the evidence the applicant gave about his symptoms were not consistent with suffering “acute signs” of altered mobility or range of movement.
Grounds of appeal
The first error of law alleged is that the Tribunal considered only one SoP which was either the wrong one or should have led to the consideration of another SoP. This is conceded by the respondent. In Repatriation Commission v Gorton [2001] FCA 1194 at [66], the Full Court said that the Tribunal was required to proceed first by applying the SoP in force at the time of the review. If that SoP did not uphold the hypothesis raised by the material, the Tribunal was then required to consider the SoP in force at the time of the commission's decision. The Tribunal should have considered the SoP contained in Instrument Number 27 of 1999.
The definition of “trauma to the lumbar spine” in Instrument
Number 27 of 1999 is:
"trauma to the lumbar spine" means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement for lumbar spine. This acute symptoms and signs must rise to a period of at least seven days following the onset save for where medical intervention for the common to the lumbar spine has occurred, without medical intervention involves either:
(a)immobilisation of the lumbar spine by splitting, or similar external agent; or
(b)in injecting cortícosterois or local anaesthetics into the lumbar spine; or
(c)surgery to the lumbar spine.
The inclusion of the word “discrete” cannot make a difference in this case. The injury was a discreet injury, caused by a single event when the applicant landed awkwardly. Neither can the exclusion of the reference to an extraneous physical or mechanical agent. There was such an agent; the force of the applicant hitting the ground. One SoP refers to seven days and the other one week. There is no difference.
The particular feature which the Tribunal found was lacking was “acute symptoms and signs”. It said at [20-23]:
20. The third hypothesis raised may at first appear to contain the factor of "trauma to the lumbar spine", however it is necessary that the "trauma to the lumbar spine" be trauma fitting the definition in the SoP. That definition, as Finn J explained in Harris, requires (inter alia) that the injury caused the development of "acute symptoms and signs" of:
(i) pain
(ii) tenderness
(iii) altered mobility or range of movement
Such "acute" symptoms and signs must last for a period of at least one week.
21. We found Mr Brand to be an honest witness and we accept what he said, but his evidence does not raise or point to the matters required in the definition in the SoP. First there is no evidence of any symptoms suffered being "acute" for more than a minute or so. As Finn J pointed out in Harris, the Shorter Oxford English Dictionary requires that for symptoms to be "acute" they must "be sharp or act 'keenly' on the senses". Mr Brand said that his pain was "very sharp" initially, but during the patrol which lasted 10-12 days became "just niggling pain all the time". He did not say that it remained sharp for at least a week. He said it took a few seconds before he could move his legs and move up the hill. He gave no evidence of acute signs or symptoms of tenderness. All he said on that issue was that his back was "pretty sore" (trans. p33) camping out at night on the patrol, "because it got cold at night" (trans. p33).
22. The facts that Mr Brand did not at any stage seek even a painkiller from the company medic, and that he was able to complete the patrol without requiring any assistance in carrying his heavy load, also indicate that the requirements of the definition are not raised. Further Mr Brand did not tell the Company Commander whose signaller he was, that he had any problem with pain, tenderness or altered mobility because he feared he would not be believed. That is not consistent with Mr Brand suffering "acute signs" of altered mobility or range of movement.
23. Thus we are obliged to find that the material before us does not raise a reasonable hypothesis. The raised hypothesis is not consistent with the "template" to be found in the SoP. As the hypothesis fails to fit within the template, the claim in respect of lumbar spondylosis must fail.
The words “acute symptoms and signs” are the same in both definitions but SoP Number 27 includes the word “either” before “altered mobility or range of movement”.
The addition of this word seems to do no more than clarify that “altered mobility” or “range of movement” are alternatives. But altered mobility or range of movement were not an issue. It was “acute symptoms and signs” which the Tribunal found were not present. The conclusion that the Tribunal came to is not affected by the SoP it was considering. The relevant parts of each have the same wording, “acute symptoms and signs”.
In the written submissions on the part of the applicant, it was said that although the changes in the SoP were not substantive, they did make the meeting of the requirements easier and therefore the more favourable SoP should have been applied. That is not so. There is no difference in the wording of the relevant part of each SoP. It was neither easier or harder to meet the relevant requirement.
Applying the wrong SoP is an error of law. But when there is an error of law, a matter will not be remitted when the error of law makes no difference to the result: Harris v Repatriation Commission [2000] FCA 873 at [36], Finn J. This principle should be applied in this case.
No issue arose concerning the SoP for osteoarthrosis of the knees.
It was submitted that the Tribunal disregarded the operation of s.119 of the Act. In the written submission, a passage in the transcript of evidence is referred to where the senior member says: “Well, I will not say another word to try help him”. The senior member had been asking the applicant questions about the report of a medical witness and in particular, the recording in the report of the symptoms reported to the doctor by the applicant. This led to an exchange between the senior member and counsel appearing for the applicant as to whether the questions were being put fairly. It concluded with the statement by the senior member set out above.
Section 119 sets out various matters about the manner in which the respondent is to make decisions. The commission may inform itself as it thinks fit. It is to act according to substantial justice and the substantial merits of the case and without regard to legal form or technicalities. It is to take into account any difficulties that might lie in the way of an applicant in presenting a case because of such things as the effects of the passage of time, availability of witnesses and absence of or deficiency in records.
The argument that s.119 requires the Tribunal to take a more benevolent view of the applicant's case than it would otherwise have done, has been rejected by Federal Court judges on many occasions: Grundman v Repatriation Commission [2001] FCA 892, Gray J [33] and the cases referred to in that paragraph. The tribunal did what was required of it. It found the applicant to be an honest witness and stated specifically that it accepted what he said. It found that his evidence did not raise or point to the matters required in the definition in the SoP. There is no basis for saying that, in relation to the way it treated the applicant's witness, the Tribunal disregarded s.119.
It was submitted that the Tribunal was judgemental in the way it treated the applicant's evidence and so confused its task in carrying out the third step with the fourth step. Reference was made to Bushell v Repatriation Commission (1992) 175 CLR 408 at 413. The Court said:
Sub-section(3) is concerned with whether the material raises a reasonable hypothesis that the relevant injury, disease or death was connected with the service of the veteran. It is not concerned with conflicts in the material, with they be of opinion or fact. The purpose of sub-s.(3), as demonstrated by its terms and history, is to ensure that a claim to which s.120 applies is not met unless there is some material which raises the relevant clause or hypothesis.
It was submitted that the Tribunal, in reaching its conclusion that the hypothesis could not meet the SoP, concerned itself with conflicts in the material.
The Tribunal said that there was no evidence of any symptoms suffered being “acute” for more than a minute or so and referred to the applicant's evidence that the pain was “very sharp” initially, but during the patrol, which lasted 10-12 days, became “just niggling pain all the time”.
The Tribunal said that the applicant did not say that the pain remained sharp for at least a week. It referred to his evidence that he took a few seconds before he could move up the hill and said that he gave no evidence of acute signs or symptoms of tenderness. It said that all the applicant said on that issue was that his back was “pretty sore” camping out at night on the patrol, “because it got cold at night”.
The Tribunal said that the fact that the applicant did not at any stage seek even a painkiller from the company Medic, and that he was able to complete the patrol without requiring any assistance in carrying his heavy load, also indicated that the requirements of the definition are not raised.
It was submitted that the Tribunal, in assessing the evidence in this way, was concerning itself with conflicts in the material. It was not doing that. The Tribunal recited the evidence of the applicant about relevant symptoms of pain. It then referred to matters which in the applicant's evidence he said did not happen. The Tribunal was not assessing conflicts in the evidence. It was reciting the evidence of the applicant which it stated it accepted. It considered that the evidence did not point to the hypothesis meeting the SoP. In doing that, it took into account things which the applicant said occurred and things which the applicant said did not occur. It did not concern itself with conflicts of evidence and it was not judgmental. It was considering matters relevant to the question of whether there were “acute symptoms and signs”. Things that do not occur can be relevant just as things that do occur can be.
There is no basis for saying that the Tribunal adopted the wrong approach in determining that the hypothesis did not meet the SoP.
There is no error of law and the application must be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Phipps FM
Associate: R. Campbell
Date: 14 May 2004
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