Brownlow and Repatriation Commission - [2000] AATA 894

DECISION AND REASONS FOR DECISION [2000] AATA 894

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1544

VETERANS' APPEALS DIVISION       )
           Re      Cecil Ernest BROWNLOW
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date12 October 2000
PlaceSydney

Decision The Tribunal affirms the decision of the Repatriation Commission dated 17 February 1999 that refused the claim of Cecil Ernest Brownlow in respect of osteoarthrosis of the left hip.

……………………..
M T Lewis
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – whether osteoarthrosis of left hip war-caused – Statement of Principles applied – whether suffered trauma to joint before the clinical onset of osteoarthrosis – whether satisfied definition of "trauma to joint" – whether experienced acute symptoms and signs of pain and tenderness to left hip – whether hypothesis reasonable

Veterans' Entitlements Act 1986 – ss 120(1), 120(3), 120(A)
Statement of Principles – Instrument No. 41 of 1998, Instrument No.19 of 1999

Repatriation Commission v Deledio (1998) 83 FCR 82
East v Repatriation Commission (1987) 16 FCR 517
Harris v Repatriation Commission [2000] FCA 873

REASONS FOR DECISION

12 October 2000 Mrs M T Lewis, Senior Member

This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 17 February 1999 that refused the claim of Cecil Ernest Brownlow ("the Applicant") in respect of his claim for osteoarthrosis of the left hip. That decision was reviewed by the Veterans' Review Board on 3 August 1999 and affirmed. The Applicant then lodged an application for review by this Tribunal. All applications for review were in time.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence and provided a written statement dated 9 December 1999 (exhibit A) as evidence before the Tribunal. The following documents were tendered as evidence by the Respondent –

Report of Dr P E Giblin, orthopaedic surgeon, dated 13 July 2000 (exhibit 1);
Letter of instruction from Respondent to Dr Giblin dated 21 June 2000 (exhibit 2);
Report of Professor Philip Sambrook, rheumatologist, dated 8 March 2000, and letter of instruction from Respondent to Professor Sambrook dated 28 February 2000 (exhibit 3);
Report of Professor Sambrook dated 14 March 1997 (exhibit 4).

The Applicant enlisted in the RAAF on 25 June 1942 and was discharged on 6 May 1946. His service included overseas service in Merauke (New Guinea), and therefore he had operational service. This matter falls for consideration pursuant to s120(1) and s120(3) of the Veterans' Entitlements Act 1986 ("the Act"), and as the claim was lodged after 1 June 1994 the Tribunal must determine this matter pursuant to s120A of the Act on the basis of a relevant Statement of Principles, which in this case is Instrument No. 41 of 1998, as amended by Instrument No.19 of 1999. The Applicant relied on factor 5(j) of Instrument No. 41 of 1998 which states –
5. The factors that must as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brownlow and Repatriation Commission

Details

AGLC: Brownlow and Repatriation Commission [2000] AATA 894
Case: [2000] AATA 894
Decision Date: 12 October 2000

CaseChat Overview and Summary

In the matter of Brownlow and Repatriation Commission, the central issue before the Tribunal was whether the Applicant's osteoarthrosis of the left hip was caused by service-related trauma, specifically a truck accident during his military service. The case hinged on the interpretation and application of the Veterans' Entitlements Act 1986, particularly sections 120(1), 120(3), and 120(A), as well as the relevant Statements of Principles concerning war-related injuries. The Tribunal was tasked with determining if an hypothesis connecting the Applicant's service to his osteoarthrosis was reasonable and if it complied with the legislative framework and case law precedents.

The key legal issues revolved around the criteria for establishing a service-related hypothesis and whether such a hypothesis was consistent with the Statements of Principles. The Tribunal had to ascertain if the Applicant experienced trauma to his left hip that predated the onset of osteoarthrosis and if this trauma met the definition of "trauma to joint" under the relevant legislation. Additionally, the Tribunal examined whether the Applicant experienced acute symptoms and signs of pain and tenderness to the left hip, which would support the hypothesis of service-related injury.

The Tribunal's reasoning involved a detailed analysis of the evidence presented, including the Applicant's history and medical reports. The Tribunal found that while an hypothesis had been raised, it was not reasonable because the Applicant did not provide specific evidence of hip injury at the time of the accident, and there was no clinical correlation between the accident and the later development of osteoarthrosis. The Tribunal concluded that the hypothesis did not fit within the "template" provided by the Statements of Principles and thus was not reasonable. Consequently, the Tribunal was satisfied beyond reasonable doubt that the Applicant's osteoarthrosis did not arise from a war-caused injury.

The final orders of the Tribunal rejected the Applicant's claim for service-connected osteoarthrosis of the left hip. The Tribunal held that the hypothesis linking the Applicant's service to his condition was not reasonable and did not satisfy the requirements of the Veterans' Entitlements Act 1986. The Applicant's claim was therefore dismissed.

Orders

Orders of the court

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Background

Background to the litigation

As the Tribunal is satisfied on the balance of probabilities that the Applicant suffers from osteoarthrosis of the left hip, the next step is to consider whether an hypothesis has been raised connecting the injury with the circumstances of the Applicant's service. In applying the decision of the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 the Tribunal is required to look at all the material to see if it points to a relevant hypothesis to connect the Veteran's condition with service; it is not enough if the relevant hypothesis is left open: East v Repatriation Commission (1987) 16 FCR 517. This is to be done in the context of the first step set out in Deledio (supra). Those steps, which the Tribunal is required to follow, as set out in Deledio (at 97-98) are:1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by (2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. (Tribunal's emphasis) Taking into account the case law the Tribunal finds that an hypothesis has been raised on behalf of the Applicant that being he sustained an injury to his left hip as well as to his lumbar spine as a result of the truck accident on service and that injury has caused the later development of osteoarthrosis of the left hip. The Tribunal must now consider whether that hypothesis is reasonable in accordance with step 3 of the Deledio test. If the hypothesis is consistent with the "template" in the Statements of Principles, the hypothesis is reasonable.

Evidence

Evidence Before The Court

A report was also provided by Dr Giblin, orthopaedic surgeon (exhibit 1) who examined the Applicant on 13 July 2000. The history taken by Dr Giblin is consistent with the Applicant's history to the Tribunal. Dr Giblin opined, on the basis of the history provided, that the injury sustained by the Applicant in the truck accident did not relate to his left hip disability. He noted that the Applicant made no specific mention of injuring his hips at the time of the accident, other than general bruising, which Dr Giblin considered would probably have been associated with a significant soft tissue injury to the back. He also said that from a clinical perspective, an injury to a hip is usually not accompanied by bruising. He did not consider that the Applicant satisfied the criteria in the relevant Statements of Principles. consideration of evidence and findings of fact As the Tribunal is satisfied on the balance of probabilities that the Applicant suffers from osteoarthrosis of the left hip, the next step is to consider whether an hypothesis has been raised connecting the injury with the circumstances of the Applicant's service. In applying the decision of the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 the Tribunal is required to look at all the material to see if it points to a relevant hypothesis to connect the Veteran's condition with service; it is not enough if the relevant hypothesis is left open: East v Repatriation Commission (1987) 16 FCR 517. This is to be done in the context of the first step set out in Deledio (supra). Those steps, which the Tribunal is required to follow, as set out in Deledio (at 97-98) are:1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by (2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. (Tribunal's emphasis)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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