Cable and Repatriation Commission - [2000] AATA 923

DECISION AND REASONS FOR DECISION [2000] AATA 923

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W1999/137

VETERANS' APPEALS DIVISION       )
           Re      JOHN FREDERICK CABLE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President Dr D Weerasooriya, Member

Date20 October 2000
PlacePerth

Decision      The decision under review is set aside and the matter remitted to the respondent for reconsideration in accordance with the direction that the applicant's claim for a disability pension be determined on the basis that his condition of lumbar spondylosis is a war-caused injury or a war-caused disease within the meaning of s9 of the Veterans' Entitlements Act 1986.
  ...........(sgd S D Hotop)………..
  Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant an Australian mariner – applicant rendered operational service and eligible war service other than operational service – applicant suffering from conditions of lumbar spondylosis and osteoarthrosis of hips, knees and shoulders – whether those conditions war-caused.
Veterans' Entitlements Act 1986 ss 5C(1), 6B(1), 7(1), 9(1), 120, 120A, 120B, 196B
Revocation and Determination of Statement of Principles concerning Lumbar Spondylosis (Instrument Nos 165 and 166 of 1996)
Revocation and Determination of Statement of Principles concerning Osteoarthrosis (Instrument Nos 41 and 42 of 1998)
Harris v Repatriation Commission (2000) 31 AAR 270
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 98 FCR 108

REASONS FOR DECISION

20 October 2000 Associate Professor S D Hotop, Deputy President Dr D Weerasooriya, Member

This is an application by John Frederick Cable ("the applicant") for review of a decision by delegate of the Repatriation Commission ("the respondent"), dated 15 July 1998, as affirmed by the Veterans' Review Board ("VRB") on 4 February 1999, that the following conditions suffered by the applicant are not war-caused injuries or war-caused diseases within the meaning of s9 of the Veterans' Entitlements Act 1986 (" the VE Act"):

lumbar spondylosis
osteoarthrosis of the left hip
osteoarthrosis of the right hip
osteoarthrosis of the left knee
osteoarthrosis of the right knee
osteoarthrosis of the left shoulder
osteoarthrosis of the right shoulder.

At the hearing the applicant was represented by Mr P Lofdahl, a lay advocate, and the respondent was represented by Mr C Ponnuthurai, a departmental advocate. The Tribunal had before it the documents ("T documents", No T1-T11, pp1-58) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the following documentary exhibits tendered by the applicant:

Statutory Declaration of John Frederick Cable, dated 8 November 1999 (A1)
Report of Mr J O Chleboun, Vascular and General Surgeon, dated 15 February 2000 (A2).

The applicant gave oral evidence by telephone. There were no other witnesses.

Subsequent to the hearing, with the agreement of both parties, a supplementary medical report was obtained from Mr R McWilliam, Orthopaedic Surgeon, at the Tribunal's request. That report, dated 24 May 2000, was lodged with the Tribunal by the respondent on 29 May 2000. Both parties were subsequently accorded the opportunity to make submissions in relation to that report but declined to do so and informed the Tribunal that they had no objection to that report being taken into account by the Tribunal. Mr McWilliam's report, dated 24 May 2000, has accordingly been marked as Exhibit R1.
The Factual Background
The relevant background facts, as found by the Tribunal on the basis of the T documents, are as follows.
The applicant, who was born on 12 January 1921, rendered operational service as an Australian mariner as follows:
Ship  Periods
"Taroona"  30 January 1942 – 13 March 1942
  14 March 1942 – 27 June 1942
  5 August 1942 – 6 August 1942
  13 August 1942 – 13 February 1943
  14 February 1943 – 25 February 1943
"Koomilya"  13 May 1943 – 5 July 1943
  6 July 1943 – 16 November 1943
  10 February 1944 – 23 June 1944
"Marella"  15 November 1944 – 13 May 1945
  14 May 1945 – 1 September 1945.

The applicant also served as an Australian mariner on the ship "Suva" for the period from 14 February 1946 to 7 June 1946.

On 22 June 1998, the applicant lodged with the Department of Veterans' Affairs a completed Claim for Disability Pension form dated 18 June 1998.
On 15 July 1998 a delegate of the respondent decided that the applicant's conditions of lumbar spondylosis, osteoarthrosis of both hips, osteoarthrosis of both knees and osteoarthrosis of both shoulders were not war-caused, and refused the applicant's claim.
On 4 February 1999 the VRB affirmed the delegate's decision.
On 30 April 1999 the applicant lodged with the Tribunal an application for review of the VRB's decision.
The Applicant's Evidence
The applicant stated that the ships on which he served during World War 2 were troop and supply ships and his duties were primarily those of a junior engineer although he also assisted with loading and unloading the ships.
The applicant referred to a particular incident which occurred when he was on board the ship "Taroona". He said that the incident occurred in May 1942 when the "Taroona" was tied up in Cockatoo Island dockyard in Sydney for about two weeks between voyages, and he had completed the articles of agreement for the previous voyage and had signed articles for the next voyage. He told the Tribunal that on the occasion in question he had been ordered to raise steam in the ship's boiler at about 4.00 am and, after he and a boiler attendant had built a fire in the furnace, he was climbing backwards out of the furnace area at about 7.00 am when he slipped and fell a distance of about 5 feet onto his back and shoulders. Being covered in soot he then had a shower and noticed a rash all over his body. Furthermore he was not feeling well and he reported the matter to the Chief Engineer who arranged for him to be taken by taxi to the Coast Hospital at La Perouse.
At the Hospital it was first thought that the body rash was due to measles but later it was explained by the medical staff as being due to exhaustion. The applicant said that he spent the next 7 or 8 days in the Hospital resting, his treatment consisting of being given pain-killing tablets each morning and being rubbed with liniment. Upon his discharge from hospital, he returned to service on the "Taroona".
The applicant described his symptoms after the abovementioned incident. He said that, apart from having a sore back, his shoulders were very sore but he did not think that they were swollen. As regards his hips, he said he could bend over from the hips, although not easily. He said that he was able to walk and bend his knees, and was able to dress himself.
The applicant also said that, apart from the abovementioned incident, he suffered a number of falls during voyages on board the ships on which he served during World War 2. He said that he recalled hurting his back and knees in those falls and that he sometimes noticed swelling in his knees which would subside after a few days. He added that sometimes tenderness in his knees would last up to about one week. He did not, however, recall having any particular problems with his hips and shoulders during voyages.
The applicant also stated that his duties routinely included cleaning out the baffles and the boiler, and removing heavy "boxes" from the boiler, when the ship was in port after completing a voyage, and that in performing those duties he was required to work in a very confined space and, in so doing, had to twist and position his body in awkward angles, and that his neck, shoulders, back and legs would ache for days afterwards.
The Medical Evidence
A report by Mr R McWilliam, Orthopaedic Surgeon, dated 3 November 1998, in relation to the applicant states as follows (T7, pp 43-44):
" I saw this 77 year old gentleman as arranged on the 26th October 1998 and again on 3 November 1998 for review of his xrays.
He told me that his war service as with the Merchant Navy and commenced on the 12.2.42 when he spent 14 months on the 'Taroona' which was a troop ship involved in ferrying troops from Townsville to Port Moresby and in evacuating the wounded from Port Moresby to Australia. He was a junior, in the engine room and was involved in working in confined spaces and under poor ergonomic conditions and that was when he was first troubled with low back pain. His pain persisted on and off although under war time conditions he did not make any specific request for treatment.
I note that after 14 months service on the Taroona, he was transferred to the Koomilya which served up and down the Australian coast for 6 months.
He was discharged from the merchant navy in 1945 and received a certificate of competency and married in 1946 and then in seeking his chief engineer certificate joined the merchant navy again for a period and then he was with the Adelaide Steam Ship Company.
He carried on until he retired in 1987.
His other medical history includes a heart attack in 1978 and aneurysm removal from the aorta in 1992 and subsequently 2 operations for abdominal hernias. The last one was in 1998.
He has continued to experience back pain which extends from the centre of the low back to both flanks, radiates to both buttocks but not down the legs. He finds that he can walk about 50 yards now before he has to stop and if he rests for a while he can then go further.
On examination today, I note that he stands with a tendency to bend the hips and in trying to extend experiences pain in the low back area. He is 5 ft 9½ inches tall and weighs 72.5 kilograms. He was tender over the lower lumbar spine particularly in the midline.
He has one half the normal range of thoraco lumbar movements. All hip movements are markedly restricted. Crepitus was present in both knees. Range of movement present in both knees is 5-105 degs. Ankle movements were pain free and reasonable. Straight leg raising was restricted on both sides to 50 degs on R & 60 degs on L. The xray (C.T. Scan) of 27.10.98 shows severe canal stenosis at the L 4-5 level.
Although he has a long standing scar around the left axillary area causing some soft tissue contraction, he does have a reasonable range of shoulder movements on both sides.
Opinion – Mr Cable has clinical evidence of osteo arthritis affecting the hips and knees on both sides and the lumbar spine, where it is associated with a spinal stenosis and lateral canal stenosis, confirmed by C.T. Scanning.

I believe that it is likely that his service during the war years, working in confined spaces was a significant element in the development of his osteo arthritic condition.
I do not have xrays of his hips and knees, although on clinical grounds with the marked restriction of movement particularly in the hips, I have no doubt that there is pathology present and xrays of the hips and knees would be useful. We do find that people serving under poor ergonomic conditions frequently suffer from multiple joint involvement.
From the history that I have obtained, I think it probable that he has suffered multiple repetitive and minor trauma which was the cause of the onset of his osteo arthritic condition."

A supplementary report by Mr McWilliam, dated 24 May 2000, states as follows (Exhibit R1):
"…
1. Mr Cable has the condition of 'lumbar spondylosis'.
2.Mr Cable suffered a trauma to the lumbar spine before the clinical onset of lumbar spondylosis. Although his duties required carrying supplies and working in confined spaces under poor ergonomic conditions, I believe it is more likely than not a specific trauma occurred which caused low back pain associated with altered mobility and restricted back movements which persisted for a period of weeks.
3.Mr Cable suffered a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse. The evidence for this is the calcification & disc degeneration noted at the L3-4 & L4-5 levels of the lumbar spine noted on the CT Scan dated 27/10/98.
4.Mr Cable was on active service at the time of onset of back symptoms and under war service conditions he did not make any request for assessment or treatment. The history would suggest he probably did suffer a trauma to the relevant disc at the time of clinical onset of intervertebral disc prolapse. Many of the supplies he would lift would weigh more than 10 kgm.
5.Mr Cable also has the condition of osteoarthrosis in both knees. He has restriction of movement in both hips and tends to bend forward at the hips on standing, which may be the result of osteoarthritis of both hips and could be confirmed by Xray examination. There was evidence at the examination of 28 Oct 98 of scarring in the left axillary area, left shoulder, but there was a reasonable range of movement in both shoulders.
6. a)The medical history did not indicate the clinical onset of osteoarthritis in hips or knees.
b)Mr Cable reported that his knees used to swell up during his war service and that this was recorded by his war service doctor. This happened on more than one occasion and more likely than not was a result of his war service duties.
…".

The Law

Section 9(1) of the VE Act relevantly provides:
"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;
… '.

The term "veteran" is defined in s5C(1) of the VE Act to mean, amongst others, "a person … who is, because of section 7, taken to have rendered eligible war service". Section 7(1) of the VE Act relevantly provides:

"Subject to subsection (2), for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
…
(e)a person who was employed on a ship as an Australian mariner is taken to have been rendering eligible war service:
(i)if part of that employment was operational service – for the part of that employment that was not operational service; or
…".

The expression "Australian mariner" is defined in s5C(1) of the VE Act to mean, amongst others:

"a person who was, during the period of World War 2 from its commencement to and including 29 October 1945:
…
(e)a master, officer, seaman or apprentice employed in sea-going service on a ship owned in Australia and operating from an Australian port, being a hospital ship, troop transport, supply ship, tug, cable ship, salvage ship, dredge, fishing vessel or fisheries investigation vessel; or
…".

Section 6B of the VE Act, which sets out the circumstances in which an Australian mariner will be taken to have been rendering operational service, relevantly provides:

"(1) A person is taken to have been rendering operational service during:
(a)any period of employment outside Australia as an Australian mariner on a ship; or
(b)any period of employment within Australia as an Australian mariner on a ship if that period of employment ended immediately before, or started immediately after, the period of employment referred to in paragraph (a)."

The relevant provisions of the VE Act relating to the standard of proof to be applied in the present case are as follows:
"120(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:     This subsection is affected by section 120A.
...
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)      that the injury was a war-caused injury or a defence-caused injury;
(b)       that the disease was a war-caused disease or a defence-caused
disease; or
(c)       that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:     This subsection is affected by section 120A.
(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.
…
120A(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 operational service rendered by a veteran;
...
(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 (2) 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)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)       a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
…
120B(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;
…
(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 Repatriation Medical Authority ("RMA") was established by s196A of the VE Act and its functions are set out in s196B which relevantly provides:
"(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
(b)peacekeeping services rendered by members of Peacekeeping Forces; or
(c)     hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)       the factors which must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
…
(3)If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b)defence service (other than hazardous service) rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c)       the factors that must exist; and
(d)which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
…".

The RMA has, pursuant to subss (2) and (3) of s196B of the VE Act, determined Statements of Principles ("SoPs") in respect of the relevant injuries or diseases in the present case, namely, lumbar spondylosis and osteoarthrosis. Those SoPs have, since they were first determined, either been amended by the RMA or revoked and replaced by new SoPs determined by the RMA. In Repatriation Commission v Keeley (2000) 98 FCR 108 the Federal Court of Australia (Full Court) held that, in such circumstances, the SoPs, as in force at the date of the relevant primary decision by the respondent, are to be applied by the Tribunal for the purpose of making a decision on an application for review.
In the present case the relevant SoPs which were in force at the date of the respondent's decision (namely, 15 July 1998) were as follows:

"Revocation and Determination of Statement of Principles concerning Lumbar Spondylosis" under s196B(2) of the VE Act (Instrument No 165 of 1996);
"Revocation and Determination of Statement of Principles concerning Lumbar Spondylosis" under s196B(3) of the VE Act (Instrument No 166 of 1996);
"Revocation and Determination of Statement of Principles concerning Osteoarthrosis" under s196B(2) of the VE Act (Instrument No 41 of 1998); and
"Revocation and Determination of Statement of Principles concerning Osteoarthrosis" under s196B(3) of the VE Act (Instrument No 42 of 1998).

The SoPs which are applicable in relation to periods of operational service are those contained in Instrument No 165 of 1996 (Lumbar Spondylosis) and Instrument No 41 of 1998 (Osteoarthrosis), whereas the SoPs which are applicable in relation to periods of eligible war service (other than operational service) are those contained in Instrument No 166 of 1996 (Lumbar Spondylosis) and Instrument No 42 of 1998 (Osteoarthrosis).
Findings on Material Questions of Fact
Lumbar Spondylosis

The Tribunal finds, on the basis of Mr McWilliam's report of 24 May 2000 (Exhibit R1), that the applicant has the condition of lumbar spondylosis. The question is, of course, whether the applicant's lumbar spondylosis is a "war-caused injury" or a "war-caused disease" within the meaning of s9 of the VE Act. The case as presented on behalf of the applicant sought to connect the applicant's lumbar spondylosis specifically with an incident ("the boiler incident"), as described by the applicant in his oral evidence (see paragraph 11 above), in which he fell onto his back when on board the ship "Taroona" which was then tied up in Cockatoo Island dockyard. The Tribunal accepts the applicant's evidence in relation to the boiler incident and finds that that incident occurred during a period of "eligible war service", but not "operational service" (see ss 7(1)(e)(i) and 6B(1)(b) of the VE Act). Accordingly, the appropriate standard of proof to be applied by the Tribunal is that of "reasonable satisfaction" pursuant to s120(4) of the VE Act and the relevant SoP to be applied in relation to the boiler incident is that contained in Instrument No 166 of 1996.
That SoP relevantly provides:
"…
Basis for determining the factors
3.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that lumbar spondylosis and death from lumbar spondylosis can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must exist before it can be said that, on the balance of probabilities, lumbar spondylosis or death from lumbar spondylosis is connected with the circumstances of a person's relevant service are:
…
(f)suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; or
(g)suffering a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse; or
…
Other definitions
7.        For the purposes of this Statement of Principles:
…
'lumbar intervertebral disc prolapse' means protrusion, herniation or rupture of an intervertebral disc of the lumbar spine, causing local pain and stiffness, and/or pain and paraesthesia radiating into the lower limbs, attracting ICD code 722.10, 722.32 or 722.73;
…
'relevant service' means:
(a)       eligible war service (other than operational service); or
(b)       defence service (other than hazardous service);
'trauma to the lumbar spine' means an injury to the lumbar spine 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, tenderness and altered mobility or range of movement 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, …
…".

In his report of 24 May 2000 Mr McWilliam opined that the applicant suffered a "trauma to the lumbar spine before the clinical onset of lumbar spondylosis", within the meaning of para 5(f) of the abovementioned SoP. He continued:
"… I believe it is more likely than not a specific trauma occurred which caused low back pain associated with altered mobility and restricted back movements which persisted for a period of weeks."

The applicant's evidence was that, following the boiler incident, he spent the next 7-8 days in hospital with, amongst other symptoms, a sore back, where he was given pain-killing tablets and rubbed with liniment.

In order to satisfy para 5(f) of the relevant SoP the applicant must have suffered a "trauma to the lumbar spine" in relation to his eligible war service which, in terms of the definition of that phrase in cl 7 of the SoP, caused the development within 24 hours of "acute symptoms and signs of pain, tenderness, and altered mobility or range of movement" of his lumbar spine which lasted for a period of at least one week immediately thereafter. In Harris v Repatriation Commission (2000) 31 AAR 270 the Federal Court of Australia (Finn J) considered the interpretation and application of a former SoP concerning lumbar spondylosis which contained a definition of the phrase "trauma to the lumbar spine" in terms similar to the definition of that phrase which appears in the relevant SoP in this case. His Honour stated (at p 281):
"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."

Although the evidence before the Tribunal in relation to this matter is not very substantial, the Tribunal is prepared, on balance, to find, on the basis of the applicant's evidence and Mr McWilliam's opinion, that the applicant's fall in the boiler incident caused an injury to his lumbar spine causing the development within 24 hours thereof of acute symptoms and signs of pain and altered mobility or range of movement of his lumbar spine which lasted for a period of at least 7 days immediately thereafter. There is no specific evidence before the Tribunal that the applicant also developed acute symptoms and signs of tenderness in relation to his lumbar spine but the Tribunal is prepared to infer that he did develop such acute symptoms and signs of tenderness contemporaneously and in association with the acute symptoms and signs of pain he experienced and that those acute symptoms and signs of tenderness also lasted for a period of at least 7 days immediately after the injury to his lumbar spine occurred. Accordingly, the Tribunal finds that para 5(f) of the relevant SoP is satisfied in this case.
An alternative minimum factor listed in cl 5 of the relevant SoP that was raised in this case is the factor referred to in para (g) of that clause. In order to satisfy para 5(g), the applicant must have suffered a "lumbar intervertebral disc prolapse" (as defined in cl 7 of that SoP) in relation to his eligible war service. Mr McWilliam, in his report of 24 May 2000, opined that the applicant suffered "a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse", within the meaning of para 5(g) of the SoP. The Tribunal accepts Mr McWilliam's opinion and finds accordingly.
The condition of Intervertebral Disc Prolapse, however, is itself the subject of a SoP. The relevant SoP for the purposes of the present case is that contained in Instrument No 131 of 1996, as amended by Instrument No 93 of 1997 ("the IDP SoP"), which relevantly provides:
"Basis for determining the factors
3.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that intervertebral disc prolapse and death from intervertebral disc prolapse can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must exist before it can be said that, on the balance of probabilities, intervertebral disc prolapse or death from intervertebral disc prolapse is connected with the circumstances of a person's relevant service are:
(a)suffering trauma to the relevant disc at the time of the clinical onset of intervertebral disc prolapse; or
…
Other definitions
7.        For the purposes of this Statement of Principles:
…
'relevant service' means:
(a)       eligible war service (other than operational service); or
(b)       defence service (other than hazardous service);
'trauma to the relevant disc' means an injury to the particular prolapsed intervertebral disc, giving rise to immediate pain, tenderness and altered mobility or altered range of movement of that part of the spine, which persists for at least two weeks, unless medical intervention has occurred (for example bracing, corticosteroid injection, surgery). Where medical intervention for the injury has occurred, and there is evidence relating to the extent of injury and treatment, such evidence may be considered. Examples of activities or events that may result in trauma to the relevant disc include:
(i)        lifting, pushing or pulling an object weighing more than 10 kg; or
(ii)jumping from a height, for example, in a parachute jump, or jumping down from a tank; or
(iii)a fall; or
(iv)diving into a body of water; or
(v)participating in sports, for example, football, surfing, gymnastics; or
(vi)spinal manipulation; or
(vii)a motor vehicle accident; or
(viii)a blast explosion; or
(ix)a physical attack.
…".

Mr McWilliam, in his report of 24 May 2000, opined that "(t)he history would suggest (the applicant) probably did suffer a trauma to the relevant disc at the time of clinical onset of intervertebral disc prolapse". In expressing that opinion Mr McWilliam referred generally to the applicant's being "on active service at the time of onset of back symptoms" and referred specifically, by way of example, to the fact that "many of the supplies (the applicant) would lift would weigh more than 10 kgs".
The definition of the phrase "trauma to the relevant disc" in cl 7 of the IDP SoP requires that the relevant injury give rise to "immediate pain, tenderness and altered mobility or altered range of movement" of the relevant part of the spine. There is insufficient evidence before the Tribunal to enable it to make a finding that that requirement is satisfied. As regards the boiler incident, which was the most serious single incident involving the lumbar spine referred to by the applicant, the evidence did not go so far as to establish that the applicant suffered immediate pain, tenderness and altered mobility or altered range of movement in relation to his lumbar spine by reason of that incident beyond the period of 7-8 days following that incident. There was no evidence before the Tribunal that the abovementioned symptoms persisted for at least 14 days after the boiler incident. Accordingly, the Tribunal finds that the applicant did not suffer a "trauma to the relevant disc", as defined in cl 7 of the IDP SoP, in the boiler incident and that, therefore, the minimum factor specified in para 5(a) of that SoP is not satisfied in this case.
The overall finding of the Tribunal in relation to the applicant's lumbar spinal condition is that the applicant suffered a trauma to the lumbar spine before the clinical onset of lumbar spondylosis, within the meaning of para 5(f) of the relevant SoP, that he suffered that trauma in the boiler incident, and that, accordingly, the applicant's condition of lumbar spondylosis is related to his eligible war service.
The Tribunal finds, therefore, that the applicant's condition of lumbar spondylosis is a war-caused injury or a war-caused disease, within the meaning of s9 of the VE Act.
Osteoathrosis – Knees, Hips and Shoulders
First, there is no evidence before the Tribunal that the applicant has the condition of osteoarthrosis in either of his shoulders and the Tribunal is, therefore, unable to make such a finding.
As regards the applicant's knees, the Tribunal finds, on the basis of Mr McWilliam's report of 24 May 2000, that the applicant has the condition of osteoarthrosis in both knees.
There is some doubt as the whether the applicant has the condition of osteoarthrosis in his hips. A diagnosis of osteoarthritis of the hips was made by the applicant's general practitioner, Dr R Wittenoom, on 18 June 1998 in support of his claim for disability pension (T7, pp 26-27). In a report dated 3 November 1998 (T7, pp 43-44) Mr McWilliam noted that the applicant "has clinical evidence of osteoarthritis affecting the hips", although he commented that he did not have the benefit of seeing x-rays of the applicant's hips. In his report of 24 May 2000, however, Mr McWilliam commented that the applicant has
"restriction of movement in both hips and tends to bend forward at the hips on standing, which may be the result of osteoarthritis of both hips and could be confirmed by x-ray examination". (emphasis added)

Notwithstanding the doubt expressed by Mr McWilliam in his report of 24 May 2000, the Tribunal is prepared to find, on balance, that the applicant does have the condition of osteoarthrosis in both hips.

The question then arises whether the applicant's conditions of osteoarthrosis of both knees and both hips are war-caused injuries or war-caused diseases within the meaning of s9 of the VE Act. It was common ground that this question was to be determined on the basis of the applicant's having rendered operational service as an Australian mariner within the meaning of s6B of the VE Act. On that basis the appropriate standard of proof to be applied by the Tribunal is that of "reasonable hypothesis" pursuant to subss (1) and (3) of s120 of the VE Act and the relevant SoP to be applied pursuant to s120 of that Act is that contained in Instrument No 41 of 1998.
The approach to be taken by the Tribunal in these circumstances was summarised by the Federal Court of Australia (Full Court) in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98 as follows:
"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 ss196B(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 s120(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."

The Knees

The material before the Tribunal – in particular the evidence of the applicant and the medical reports of Mr McWilliam – raises a hypothesis connecting the applicant's condition of osteoarthrosis in his knees with the circumstances of his operational service. The question then arises whether that hypothesis is a reasonable one. The answer to that question depends on whether it is consistent with the "template" to be found in the relevant SoP, namely, that contained in Instrument 41 of 1998. That SoP relevantly provides:
"…
Basis for determining the factors
3.The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that osteoarthrosis and death from osteoarthrosis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthrosis or death from osteoarthrosis with the circumstances of a person's relevant service are:
…
(j)suffering a trauma to a joint before the clinical onset of osteoarthrosis in that joint; or
…
Other definitions
8.For the purposes of this Statement of Principles:
…
'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 seven days immediately after the injury occurs;
'relevant service' means:
(a)     operational service; or
(b)     peacekeeping service; or
(c)     hazardous service;
…".

The first matter to be considered is whether the minimum factor specified in para 5(j) of the SoP is satisfied in this case – that is, whether the applicant suffered a "trauma to a joint", as defined in cl 8 of the SoP, before the clinical onset of osteoarthrosis in that joint.
The applicant's evidence was that, during the voyages on board the ships on which he served during World War 2, he suffered a number of falls in which he hurt his knees and that he sometimes noticed swelling in his knees which would subside after a few days and that sometimes tenderness in his knees would last up to about one week. Mr McWilliam, in his report of 24 May 2000, noted that the applicant reported that his knees used to swell up during his war service. This evidence, however, falls short of establishing that the applicant suffered a trauma to his knee joints, within the meaning of the relevant definition in cl 8 of the SoP. In particular the evidence does not establish that the swelling, and altered mobility or range of movement, of the applicant's knees persisted for a period of at least 7 days after any relevant injury to his knees occurred.
Accordingly, the Tribunal finds that the minimum factor specified in para 5 (j) of the SoP is not satisfied in this case and, since that is the only such factor which is relevant in this case, it necessarily follows that the raised hypothesis referred to in paragraph 39 above is deemed not to be a reasonable one and the applicant's claim in relation to his knees must fail: Deledio (above).
The Tribunal finds, therefore, that the condition of osteoarthrosis of the applicant's knees is not a war-caused injury or a war-caused disease within the meaning of s9 of the VE Act.
The Hips
Finally, as regards the applicant's condition of osteoarthrosis of the hips, it is doubtful whether the material before the Tribunal even points to a hypothesis connecting that condition with the circumstances of his operational service. The applicant, in his oral evidence, did not recall having any particular problems with his hips during voyages on the ships on which he served during World War 2. Mr McWilliam, in his report of 24 May 2000, made no reference to the applicant's experiencing symptoms in his hips during his service. In his report of 3 November 1998, however, Mr McWilliam opined, in relation to the applicant's hips and knees, that it was
"likely that his service during the war years, working in confined spaces was a significant element in the development of his osteoarthritic condition".

On the basis of that report the Tribunal accepts that a hypothesis, connecting the applicant's condition of osteoarthrosis in his hips with the circumstances of his operational service, is raised.

The next question – whether that hypothesis is a reasonable one - also falls to be determined according to the provisions of the abovementioned SoP contained in Instrument No 41 of 1998 – specifically, the minimum factor referred to in para 5(j) of that SoP. Did the applicant suffer a "trauma to a joint", as defined in cl 8 of that SoP, before the clinical onset of osteoarthrosis at that joint? On the evidence before it, the Tribunal must answer that question in the negative because that evidence does not establish that the applicant experienced acute symptoms and signs of pain, swelling, tenderness and altered mobility or range of movement in relation to his hips by reason of a particular injury to his hips and that all of those symptoms and signs persisted for a period of at least 7 days immediately after any such injury occurred.
Accordingly, the Tribunal finds that the minimum factor specified in para 5(j) of the SoP is not satisfied in this case and, since that is the only such factor which is relevant in this case, it necessarily follows that the raised hypothesis referred to in paragraph 44 above is deemed not to be a reasonable one and the applicant's claim in relation to his hips must fail: Deledio (above).
The Tribunal finds, therefore, that the condition of osteoarthrosis of the applicant's hips is not a war-caused injury or a war-caused disease within the meaning of s 9 of the VE Act.
Conclusion
The ultimate findings of the Tribunal are, therefore, as follows:

the applicant's condition of lumbar spondylosis is war-caused;
the applicant's conditions of osteoarthrosis of the knees, hips and shoulders are not war-caused.

Decision

For the above reasons the Tribunal sets aside the decision under review and remits the matter to the respondent for reconsideration in accordance with the direction that the applicant's claim for a disability pension be determined on the basis that his condition of lumbar spondylosis is a war-caused injury or a war-caused disease within the meaning of s9 of the VE Act.

I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Dr D Weerasooriya, Member
Signed:
..........................(sgd S Railton)............................
Associate
Date/s of Hearing  3 March 2000
Date of Decision  20 October 2000
Counsel for the Applicant        Mr P Lofdahl
Counsel for the Respondent    Mr C Ponnuthurai