Commonwealth of Australia v Keogh, Noel Mathew

[1983] FCA 347

Re: THE COMMONWEALTH OF AUSTRALIA
And: NOEL MATHEW KEOGH
SA No. 23 of 1983
Compensation (Australian Government Employees) Act 1971 - Workers'
Compensation
76 FLR 21

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Smithers(1), Fisher(2) and Davies(3) JJ.

CATCHWORDS

Compensation (Australian Government Employees) Act 1971 s.98(1) - resulting from - incapacity - interpretation - Repatriation Act 1920 - interpretation - relationship between s.98 of the Compensation (Australian Government Employees) Act 1971 and the Repatriation Act 1920 - whether repatriation pension awarded under the Repatriation Act 1920 was awarded in respect of an incapacity resulting from injury otherwise compensable.

Workers' Compensation - Commonwealth employees' compensation - Compensable injuries - Worker suffering war-related injury in receipt of repatriation pension - Subsequent domestic injury in course of employment - Application for increase of repatriation pension - award of repatriation pension as totally and permanently incapacitated - Whether award of repatriation pension precluded compensation for domestic injury - Repatriation Act 1920 (Cth) - Compensation (Commonwealth Government Employees) Act 1971 (Cth), s. 98(1).

HEADNOTE

Section 98(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) provides (inter alia):

"Compensation is not payable under this Act to an employee in respect of an injury if the employee has received, . . . in respect of an

incapacity resulting from that injury, a pension . . . in pursuance of a determination or assessment made under the Repatriation Act

1920. . . ."

Held: (1) Due to the provisions of s. 98(1) compensation is not payable in respect of incapacity resulting from compensable injury where a repatriation pension is given in respect of a total deterioration resulting partly from war service injury and partly from compensable injury.

Australian Telecommunications Commission v. Leech (1982) 69 FLR 409, approved.

(2) A determination to grant a pension under the Repatriation Act 1920 (Cth) does not extinguish a right under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) unless the pension is granted in relation to the incapacity which resulted from the compensable injury.

(3) The Commonwealth carries the onus of establishing that the determination under the Repatriation Act 1920 (Cth) was in respect of an incapacity resulting from injury otherwise compensable.

HEARING

Adelaide, 1983, September 27, 28; November 24. #DATE 24:11:1983

APPEAL

Appeal from a decision of the Administrative Appeals Tribunal reviewing a determination that the respondent was not entitled to claim compensation under the Compensation (Commonwealth Government Employees) Act 1971 (Cth) due to s. 98(1).

C. Jessup, for the appellant.

J. W. Von Doussa, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Australian Government Solicitor.

Solicitors for the respondent: R. J. Whittington.

B.A.G.

ORDER

1. The appeal be dismissed.

2. The costs of and incidental to the appeal be paid by the appellant.

Appeal dismissed with costs.

JUDGE1

On 18 June 1974 a determination under the provisions of the Compensation (Australian Government Employees) Act 1971 (the Act) was made by the Delegate of the Commissioner for Employees' Compensation (the Delegate) that on 6 February 1974 the respondent sustained personal injury namely, ligamentous injury to his neck, arising out of or in the course of his employment by the Commonwealth of Australia and that in pursuance of the provisions of s.45(2) of the Act he was thereby entitled to certain specified weekly payments. Such weekly payments were made to the respondent until 4 May 1978 when they were suspended because of the recovery by the respondent of substantial damages at common law from the party responsible for his neck injury.

By June 1981 the total of the weekly payments which, but for that recovery of damages, would have been made equalled the damages so recovered. The respondent thereupon sought the resumption of weekly payments pursuant to the determination of 18 June 1974. However, it appearing that on 23 February 1981 the rate of a repatriation pension in respect of war service disabilities received by the respondent had been increased to what is called the totally and permanently incapacitated (TPI) rate provided for in the second schedule to the Repatriation Act 1920, a further determination was made by the Delegate on 18 November 1981 that in accordance with s.98(1) of the Act compensation was not payable under the Act in respect of the injury of 6 February 1974. This determination was based upon the finding by the delegate that:
"(a) on 13 June 1965 the Department of veterans' Affairs decided to amend the description of the disability accepted as service related under section 101 of the Repatriation Act 1920, from "disc lesion lumbar vertebrae" to "spondylosis" in order that cover under the Repatriation legislation would include degenerative change in the whole of the employee's spine plus any disc degeneration;

(b) the disability pension payable under section 101 of the Repatriation Act 1920 was increased to the T. & P.I. rate with effect from 16 July, 1980;"

By reason of s.98(1) of the Act "compensation is not payable under the Act" to the respondent in respect of the injury of 6 February 1974 if the respondent has received or is entitled to receive, in respect of an incapacity resulting from that injury, a pension in pursuance of a determination or assessment made under the Repatriation Act 1920.

On 6 August 1982 the respondent sought review by the Administrative Appeals Tribunal (the Tribunal) of the last mentioned determination of the Delegate. On that review the Tribunal set aside the determination and made a new determination awarding the respondent compensation for total incapacity pursuant to s.45 of the Act from June 1981 when, in accordance with s.99 of the Act, he became entitled to a resumption of weekly payments under the original determination of 18 June 1974.

The appeal is brought on specified questions of law, namely:
"1. The proper interpretation and application of Section 98 of the Compensation (Commonwealth Government Employees) Act 1971 as amended.

2. The proper interpretation of various provisions of the Repatriation Act 1920 as amended.
The grounds of appeal are stated as follows:-
"(1) The Tribunal erred in not drawing a distinction between the worker in Leech's Case and Mr. Keogh based on the fact that Mr. Keogh "is on a T. and P.I. Repatriation pension rather than a general rate Repatriation pension".

(2) As to the Tribunal's finding that the "increase of the Repatriation pension awarded as a result of a compensable injury should not have been given"

(a) the same was wrong in law;

(b) it was not open to the Tribunal to question the legality of the said increase in the circumstances of the case.

(3) The Tribunal should have found that Section 98 of the Compensation (Commonwealth Government Employees) Act applied to Mr. Keogh so that compensation was not payable as it should have been found that Mr. Keogh had received and was receiving a Repatriation pension in respect of any incapacity resulting from an injury.

(4) The Tribunal should have found that there was no incapacity for which Mr. Keogh was not receiving a pension under the Repatriation Act 1920 as amended.

(5) The word "injury" where second appearing in Section 98(1) of the Compensation (Commonwealth Government Employees) Act 1971 is not confined in meaning to an injury which by itself results in an original right to receive a pension under the Repatriation Act 1920, but extends also to an injury which results in a material change in an existing incapacity in consequence of which an existing pension is adjusted.

(6) The Tribunal erred in not distinguishing Leech's Case upon the basis that it proceeds upon a finding of fact, which was not disturbed, that the consequences of war service and compensable injury were not distinct and had not merged."

The issue before the Tribunal was whether within the meaning of s.98(1) of the Act the respondent had received or was entitled to receive a pension under the Repatriation Act in respect of an incapacity resulting from the injury of 6 February 1974. If this issue were resolved in the affirmative then, by virtue of s.98(1), the respondent would have no entitlement to compensation under the Act in respect of the injury of February 1974.

It is of assistance to state in general terms the circumstances giving rise to difficulty in the resolution of the critical issue. They are that a spinal injury was suffered by the respondent in the course of war service in 1939-1945 war affecting, originally the lower spine, but later accepted by the Department of Defence as spondylosis of the whole of the spine including the cervical area, and that the respondent suffered a non compensable whiplash neck injury in 1964, and also a compensable whiplash neck injury in 1974, and that it is not readily apparent whether a pension at the TPI rate (see Schedule 2 of the Repatriation Act) which has been received by the respondent since 23 February 1981 has been received in respect of an incapacity resulting exclusively from his war service or in respect also of an incapacity resulting from the second whiplash. Obviously the spondylosis and the ligamentous neck injury affected parts of the body near to and having some relation to each other so that there was a basis for the contention that on the probabilities the respondent's total incapacity on 23 February 1981 resulted from both sets of injuries. However, the issue in this case was not to be resolved by the Delegate or the Tribunal and cannot be resolved in this Court by determining whether as a matter of fact, on the evidence, it is established that the respondent's incapacity for work on 23 February 1981 resulted wholly or in part from the second whiplash. The question is whether as from 18 November 1981 he received or was entitled to receive a pension at TPI rate in respect of that whiplash injury. To answer that question one must ascertain whether the pension awarded to the respondent on 23 February 1981 was awarded by the Repatriation Board (the Board) in whole or in part in respect of that whiplash injury.

Incapacity is not defined in the Repatriation Act. It is, I think, apparent that incapacity due to injury means a diminution in or want of capacity previously enjoyed. Capacity is the "power or faculty for anything in particular" (Shorter Oxford English Dictionary). In the context of s.98(1) of the Act incapacity must be interpreted as want of capacity to earn money by work. The concept is of injury manifest in the deterioration of physical and mental power of the person concerned. See the observations of Fisher J. in Collins v. Repatriation Commission (1980) 32 ALR 581 at 583. The enquiry under s.98(1) is therefore whether the deterioration of physical or mental power in respect of which the respondent received his Repatriation pension resulted from the injury of 1974. In this case there were two separate categories of injury to which the deterioration of physical and mental power of the respondent might be attributed. First his war injuries as re-classified in 1965 and, secondly, his injuries of 1974. It is possible that the Repatriation pension might have been awarded to and received by the respondent in respect of such deterioration as resulted from or arose out of or was attributed to his war injuries alone: see s.101 of the Repatriation Act. In that case the incapacity in respect of which it was received could not be said to have resulted from the 1974 injury. But of course there is the possibility that it might have been granted in respect of such deterioration as aggravated by the neck injury of 1974; in other words in respect of a total deterioration resulting from both sets of injuries.

The determination under appeal proceeded by reference to a finding by the Tribunal that the deterioration of physical and mental power due to war injuries alone was not such that the respondent's condition could be considered to be permanent and total incapacity within the meaning of Schedule 2 of the Repatriation Act, and that that condition could only be said to exist if a separate and additional deterioration not arising out of or attributable to war service but resulting from the 1974 injury were added to the war service deterioration. Accordingly the pension at the second schedule rate being payable only in respect of war service incapacity, should not have been awarded. On these findings, on the review before the Tribunal, it was concluded that the issue should be resolved on the basis that the deterioration in respect of which the pension was awarded to, and received by, the respondent could not, or should not, be said to result from the injury of 1974. But this approach to the problem is unsound. The respondent has been awarded and has received a pension at the TPI rate. He received it in respect of an incapacity resulting from, arising out of, or attributable to war service. It has been awarded and paid in respect of deterioration of physical and mental power assessed by the Board to be of such nature and degree as to render the respondent totally and permanently incapacitated within the meaning of that expression as used in the Second Schedule of the Repatriation Act, namely as "incapacitated for life to such an extent as to be precluded from earning other than a negligible percentage of a living wage".

For the purpose of s.98(1) the question is not whether the assessment made by the Board was valid or sound, but what was the nature and extent of the deterioration of the physical or mental power of the respondent with respect to which the Board made its assessment and awarded a higher rate of the pension, whatever it was, to the respondent. If any material aspect or item of that deterioration resulted, even in part, from the injury of 1974, then the incapacity in respect of which the respondent was awarded the pension was an incapacity resulting therefrom and s.98(1) was applicable.

The problem before the Tribunal was therefore to identify the deterioration of physical and mental power in respect of which the Board made its assessment and awarded the pension at the TPI rate to the respondent, and, having done so, to enquire whether any material aspect or item of that deterioration resulted from the injury of 1974. I have indicated that it is my view that such a deterioration must for the purposes of applicability of s.98(1) be regarded as resulting from the 1974 injury if it resulted therefrom wholly or in part. This is an important aspect of this case. This view was urged with force by Dr. Jessup in his lucid approach to the problems which are presented in this case. The purpose of s.98(1) is to prevent the receipt by a former member of the forces who has also been an employee of the Commonwealth, and thus, in the ordinary course of affairs entitled, in respect of injury arising out of or in the course of that employment, to compensation under the Act; of compensation for such an injury, if in respect of an incapacity arising out of or attributable to war service he is in receipt of a repatriation pension and that incapacity was an incapacity which resulted from the injury which, but for s.98(1), would have supported a claim for compensation. The circumstance that the criterion of entitlement under the Repatriation Act is incapacity whereas under the Compensation Act it is injury tends to complicate the problem arising under s.98(1). If the expression "resulted from" in s.98(1) means, "resulted solely y from" then the provision would have little practical scope for application. If the provision operates only where the incapacity from the compensable injury therein referred to is a deterioration of physical or mental power resulting solely from that injury and also a deterioration resulting from or arising out of or attributable to war service it would apply in circumstances likely to be so rare that it is difficult to think that it would have been thought worthwhile to enact it. But a provision that compensation is not payable in respect of an incapacity resulting from a compensable injury if a repatriation pension is given in respect of a total deterioration resulting partly from war service and partly from the compensable injury would be rational and would achieve the apparent purpose of s.98(1). To say that the Board may not award a pension for an incapacity not due to war service is not to say that it may not grant a pension in respect of a state of incapacity which has resulted both from a war service injury and a later domestic injury. Such an incapacity may truly be said to have resulted from the war service injury, and not the less so because it may also be said to have resulted from the later domestic injury. It is upon the assumption that the Board may award a pension in respect of a total incapacity, where the deterioration resulting from the war service and the deterioration resulting from the domestic injury combine to cause that incapacity, that s.98 is based.

The expression "resulting from" has received judicial consideration. In Rothwell v. Caverswell Stone Co. Ltd. (1944) 2 All E.R. 350 the question was whether the condition of an injured arm which had been inexpertly treated by a surgeon and the injury thereby exacerbated could be said to result from the original injury; Lord Du Parcq said at p.365 "an existing incapacity 'results from' the original injury if it follows and is caused by that injury and may be properly be held so to result even if some supervening cause has aggravated the effects of the original injury". See also Brown v. George Kent Limited (1913) 3 KB 624 and Sneddon v. Glasgow Coal Co. 42 Sc LR 365, 7 Fraser 485.

An incapacity is "attributable to" war service if that service is a contributing cause thereof. See Law v. Repatriation Commission (1980) 31 ALR 140. And it would be equally true, in a case where the surgeon's contribution to the ultimate condition of the arm was material, that that ultimate condition "resulted from" the surgeon's treatment. In this case the question is whether the actual deterioration for which the respondent was awarded his pension included deterioration to which the injury of 1974 had contributed materially, or to be precise, which had resulted from that injury.

The decision in Australian Telecommunications Commission v. Leech (1982) 44 ALR 441 was much debated before this Court. It proceeded upon the basis that in respect of an incapacity (deterioration) for which the applicant neither received nor was entitled to receive a pension under the Repatriation Act, entitlement to compensation under the Act is not affected by s.98(1). It was pointed out by the Court that an aggravation of hypertension in respect of which compensation was awarded was a condition which existed as a result of a civilian injury and consituted an incapacity (deterioration) separate from the hypertension in respect of which a Repatriation pension had been granted. It was not to the the point to show that a certain degree of hypertension had resulted from the war injuries for which a pension had been awarded. The fact that a sequelae of the war injury and of the civilian injury went by the same name and were the same class of physical or mental deterioration was irrelevant.

I would respectfully agree with the view expressed by Fox and Lockhart JJ. in Leech's Case (supra) at p.445 that an aggravation of a pre-existing injury is distinct from the original injury and can be regarded as an injury in itself. But it does not follow that an incapacity (deterioration), the consequence of both a war injury and what may be called civilian aggravation thereof, and requiring both injuries to produce that incapacity (deterioration) is not to be considered as resulting from both. In such a case, if it can be said that a Repatriation pension has been awarded for that incapacity (deterioration), then there is an entitlement to a pension in respect of an incapacity resulting from "the civilian injury as well as the war injury". In that case s.98(1) applies.

I would respectfully concur also with the observation of Franki J. in Leech's Case (supra) at p.447 to the effect that "the onus lay upon the applicant to establish that pursuant to a determination or assessment the respondent was entitled to a pension in respect of an incapacity resulting from the second injury under the Repatriation Act". The critical words are "pursuant to a determination or assessment" and one may add "of the Repatriation Board". His Honour referred to the examination of entitlement to a pension in respect of war service in Law v. Repatriation Commission (1980) 29 ALR 64 (Toohey J.) by the Full Court (1980) 31 ALR 140 and by the High Court (1981) 36 ALR 411 and concluded that, "it is sufficient to show 'attributability' under s.101(1)(b) of the Repatriation Act if a member's war service is a contributing cause to the incapacity or death in respect of which the claim is made.". Accordingly where an incapacity to which a war service injury as well as a civilian injury have both contributed, especially where it appears that, but for the contribution of each, that incapacity, would not have occurred, to sustain a grant of a pension, there is a situation where a pension is awarded in respect of an incapacity which is attributable to war service and in my opinion "results from" the civilian injury. In respect of that incapacity s.98(1) would be an obstacle to recovery of compensation under the Act in respect of the civilian injury. But this is not to say that on the proper construction of s.98(1) an application for compensation under the Act in respect of a compensable injury could not succeed where an incapacity resulting therefrom was the subject of an award of a pension under the Repatriation Act if the incapacity (deterioration) in respect of which the compensation is claimed under the Act is an incapacity distinct from that in respect of which the pension was awarded. Such a question would arise, for instance, in respect of a civilian injury which aggravated war service spondylosis and such injuries together produced an incapacity for which a Repatriation pension was awarded, if that same civilian injury apart from aggravating a war service related disability also gave rise to, for instance, disabling headaches affecting civilian earning capacity.

To determine whether the deterioration in respect of which the respondent received his pension was a deterioration which resulted from the injury of 1974 it is useful to enquire:

(a) whether the injury of 1974 did contribute materially to the respondent's total physical and mental deterioration as at 23 February 1981;

(b) if so, in respect of what aspect or item of that total deterioration was it that the Repatriation Board awarded the pension;

(c) did that aspect of deterioration result from the injury of 1974 in a material way?

It is for the appellant to show that the Tribunal found that the particular aspects or items of the deterioration in respect of which the Board awarded the pension included aspects or items which resulted from the injury of 1974 and that such aspects or items constituted a material component of that deterioration or that on the evidence, that was the only conclusion open to it. It is the case for the appellant that the Tribunal did so find. In the course of the reasons for judgment the Tribunal said:
"On any view of the evidence in this matter the results of the war service injury were not adequate to award the applicant a TPI pension on the basis of his war service alone, that is without including incapacity resulting from the compensable injury. . . . In my view that increase of the Repatriation pension should not have been given. . . ."

It is said by Dr. Jessup that, although the conclusion that the increase should not have been given is to be questioned, there is a clear finding that the pension was awarded in respect of total incapacity (deterioration) resulting both from war service injuries and the injury of 1974. The finding by the Tribunal is such a finding. Accordingly, unless the finding is successfully challenged, it established that the 1981 pension was awarded and has been received by the respondent in respect of a deterioration or "an incapacity" resulting from the injury of 1974 within the meaning of s.98(1). It would follow, by virtue of that section, that compensation is not payable for that injury in respect of that incapacity or, Dr. Jessup would argue, at all.

But it is said that on the evidence that finding could not be made. It is said that there is no express statement by the Board specifying the aspects or items of incapacity (deterioration) in respect of which it approved the respondent's application of 1981 for an increase in pension. What it did was to determine, simply, that the "application is approved and pension is increased to the special rate specified in Schedule 2 of the Act as from 16.9.80."

The application was that of 15 July 1980 on a form which stated that it was to be used "only for disabilities already accepted as service related". On that form the respondent sought an "increased rate of payment of disability pension". The stated grounds on which the application was based were as follows:
"Retrogression of my accepted war caused disabilities which have required frequent and increasing treatment with little immediate and no lasting benefit.

I have to remain under constant medical surveillance, observe a strict diet, ingest significant quantitities of medication and live a very restricted existence devoid of social intercourse.

My LMD Dr. McQuade is of the opinion that my accepted disabilities are such that I should rightly be classified as T & PI irrespective of my NDWS complaints and I enclose his opinion for the benefit of the R/B to assist them in coming to a decision in my favour."
The opinion of Dr. McQuade attached thereto was in the following terms:-
"Mr. N.M. Keogh first presented at this practice on the 10th of June, 1964. His initial complaints were skeletal pain, cervical and lumbar spine and a clicking, painful right knee, especially when ascending and descending stairs. History included surgery, lumbo-sacral spine and knee, performed by Dr. Gunning and Dr. West at the Repatriation General Hospital. Physical examination on the 10th of June, 1964 revealed limitation of movement in the lumbo-sacral spine flexion approximately 70 and extension 15; lateral movement and rotation were also restricted but there was pain-free movement. There was more extensive limitation of all movements of the cervical spine and pain was an associated symptom. He complained also of intermittent pain and parathesia in the left arm and hand, especially in the morning. No other abnormality was evident at this examination.

On the 7th October, 1964, he was involved in a vehicular accident and sustained a whiplash injury to the cervical spine, which certainly induced exacerbation of pre-existing symptoms. On the 9th of October, 1964 he presented with Blurred-Diplopia and was referred to an Opthamotogist, who could find no cause for the event.

During the subsequent decade Mr. Keogh was seen regularly with complaints related mainly to his neck, back, wrists and knees. Generally the picture was one of Osteoarthritis with remissions and exacerbations. The secondary phenomena, which in my opinion is related, were periods of anxiety and depression which were frequent. He was employed in the Department of the Army in the Finance Department and was subjected to prolonged periods of desk duties with a relatively fixed position of the head, which was an aggravating factor relating to his cervical problem. He was treated with various anti-rheumatic drugs, analgesics and psycotropic drugs as well. In particular he was treated over a prolonged period with Delta B.T.Z. and subsequently presented with Diabetes. I consider the diabetic state as related to the Cortisone and not entirely a maturity onset Diabetes.

On the 6th of February, 1974, Mr. Keogh was again involved in a vehicular accident, as a passenger in a Taxi, and sustained a severe whiplash injury. He was seen in consultation by Dr. Michael Hone, who concurred with the diagnosis and the treatment which consisted of a Cervical Collar, regular physiotherapy, three months off work, anti-rheumatic and analgesic drugs. Overall response to conservative treatment was not satisfactory and manipulation under general anaesthetic was performed by Dr. Hone, resulting in marginal improvement only.
During September, 1975, he suffered several syncopal - like attacks and collapsed over his desk - there was loss of memory and a severe headache. His physical and mental status, with respect to the tremendous responsibilities as paymaster, necessitated early retirement from employment.

Mr. Keogh has had many referrals to the Department of Veterans Affairs Hospital, Daw Park, particularly in relation to skeletal pain, headaches, mood disturbances, Diabetes and has recently been referred for psychological testing and Psychiatric evaluation. It is considered that his loss of memory and impaired cerebral function is secondary to arterosclerosis and his Diabetes.

Mr. Keogh is totally and permanently incapacitated both as a result of his war accident and subsequent spinal damage, aggravated by whiplash injury and the diabetes state which bears relationship to treatment of his spinal problem."
The respondent's condition was referred by the Board to Mr. Sweeney, a specialist. Mr. Sweeney was reminded that he had seen the respondent before, and was informed that the respondent was applying for an increase of his disability pension of 100% of which 90% was for his spondylosis. He was asked to comment on the respondent's present condition and its severity and his work capacity. Was he:-
"(a) able to perform sedentary work;

(b) unable to earn a living wage except on a part time basis or intermittently; or

(c) incapacitated for life by his severe disabilities as to be unable to earn more than a negligible percentage of a living wage."
Mr. Sweeney advised that Mr. Keogh had:-
". . . general aches and pain in back, neck shoulders . . . Slowly getting worse. Takes indosid and valium and Dyom. Retired as Paymaster 5 years ago (medical discharge). Sleeps badly due to backache. Has to take sleeping tablets. Spinal fusion in 1946. Wears a brace and cervical collar.
SLR = 90.
He has generalised spondylosis.
I don't think he is fit for any work even on part time basis."
On 17 February 1981 Dr. Dawson, a medical officer of the Repatriation Department made an "incapacity assessment of Service Related Disabilities" of the respondent, on a form which required him to comment on and assess each disability separately and then make a composite assessment. He set out four disabilities, namely:

1. "Refractive error", as to which he commented "assessed C N 10% for the wearing of spectacles";

2. "Spondylosis", as to which he commented "see below" and gave an assessment "T & PI";

3. "Functional abdominal pain", as to which he commented "Intermittent symptoms, controlled by diet and simple medication and assessed at 10%";

4. "Diabetes Mellitus", as to which he commented "condition controlled by oral medication and assessed at 10%."

He added "the composite assessment is T&PI" and stated as reasons therefore,
"In my opinion his spondylosis had deteriorated to the extent that he is now unable to earn more than a negligible percentage of a living wage. This opinion is supported by the orthopaedic specialist who states "I don't think he is fit for any work even on a part time basis."
To the question "Is there any "non-accepted" loss of function to which the "paired organs" policy (G.O.E. Part 8) should be applied?" he answered "No". To the question "Is the patient 'permanently unemployable' within the meaning of Section 23 of the Act?" he answered "Yes". "Permanently Unemployable" as defined in s.23 means:
"'Permanently unemployable' means permanently incapable, by reason of physical or mental disablement, of being employed in a remunerative occupation in which, in the opinion of the Commission, he can reasonably be expected to obtain regular employment."

On 18 February 1981 the Deputy Director of Medical Services of the Department stated "I have read Dr. Dawson's assessment and I concur with it". And on 20 February 1981 the Departmental Examiner recommended that the respondent be assessed "TPI".

Before the Board for the purposes of dealing with the application were the assessment and reports last mentioned, including Dr. McQuade's opinion, a statement that the respondent was 65 years of age and was currently assessed at 100% rate of pension, together with,
(1) certain departmental forms lodged by the respondent;
(2) report by opthalmologist dated 16 July 1980.

It may be observed that prior to 1964 the Commission had accepted that the respondent had received injuries on war service as a result of which he had incapacity and in respect of which he was entitled to a pension under s.101 of the Repatriation Act. On 13 September 1965, pursuant to medical advice, the accepted service related disability of the respondent, namely, "Disc lesion lumbar vertebrae" had been amended to "spondylosis". The comments referred to were as follows:
"No entitlement for cervical spondylosis but has been seen and treated by specialist for this condition (1964). In view of the spondylosis and disc degeneration - operated 1947, it seems reasonable to accept the spread of this condition to cervical region. Recommend A of E action.

1. Delete disc lesion lumbar vertebrae.
2. Add, Spondylosis with disc degneration.
I prefer the single diagnosis of 'spondylosis'. This would then cover changes in whole spine plus disc degeneration."
At all material times the relevant disabilities which had supervened on war service were accepted by the Board as comprising four elements namely, refractive error, spondylosis, functional abdominal pains and diabetes mellitus.

In March 1974 the Department of Defence advised the Repatriation Department that the respondent had lodged a claim for compensation in respect of his "whiplash injury" of 6 February 1974, and asked, "as Mr. Keogh has had a neck injury accepted under the Repatriation Act it would be appreciated if you would advise details of the injury." A reply was received setting out the relevant clinical notes of the department including the following:
"The following is a copy of relevant clinical notes:-

23.11.73 X-Ray Cervical Spine
The changes of spondylosis noted in 1968 have not altered significantly. Multiple disc degeneration are again noted. The neural formina are quite well maintained. Degenerative changes are seen in most of the small joints.

23.10.70 Physician's Report
Twenty years of attacks of occipito temporal headaches with pain around umbilicus in conjunction lasting 24-28 hours, coming about once/week for 10 ? years. Gets tense with it but can still eat, with perhaps diarrhoea (not every time - when may have to have loose bowel actions 2 or 3 times in a morning.
. . .

18.12.73 Repatriation Out-patient Department Notes:-
Sensation of heavy bands around head 27 years. 58-year-old clerical worker. Sometimes pain in neck and right shoulder and leg, etc. and numbness left forearm. Also has diabetes.

. . .

19.1.74 Chronic headache for decades in conjunction with known severe cervical spondylosis, old psinal fusion. It is worse some days and generally is relieved by relaxing especially in hot bath and by the use of a collar. Cardiovascular system is normal.
Blood pressure 120/70.
Diabetes controlled by diet and Glibenclamide. Headache has no vascular component and will need to be managed as before with acceptance, relaxation and collar."
On 24 November 1975 the Department of Defence requested the Repatriation Department to advise the percentage of the pension to the respondent which was paid in respect of his condition "spondylosis" and the amount. It was stated that the information was required for the processing of a compensation claim in respect of a neck injury for which liability had been admitted. The reply of 8 December 1975 to this enquiry was that the respondent was receiving "war disability pension at 100% rate, 90% of which was paid in respect of the disability "spondylosis". It was mentioned also that there was on foot at that date an application by the respondent for an increase in the rate of his disability pension. On 24 March 1976 the Repatriation Department advised the Defence Department that the respondent's condition of spondylosis had been accepted as war service related but that his application for an increase in his rate of pension had been declined.

There were before the Tribunal a number of medical opinions and reports concerning the respondent's condition at various stages since the war and since 1974, but it does not appear that any of them other than those mentioned above were before the Board on 23 February 1981. And it is of importance that none of those before the Board save that of Dr. McQuade deal with the question of whether to any and what extent the respondent's condition in February 1981 resulted from spondylosis simpliciter or spondylosis aggravated by the ligamentous neck injury of 1974. It is apparent that the written reports of the departmental officers reveal no interest in whether the current state of spondylosis was the result merely of natural progression or natural progression plus the effects of the ligamentous neck injury. This is perhaps not surprising as from the point of view of the medical officers, looking at the total state of incapacity due to spondylosis any such influence would be unimportant. Spondylosis was accepted as war service related. In the absence of a neck injury of such a nature and extent as to constitute a new deterioration rendering irrelevant the spondylosis resulting from the original war injuries, of which of course there is no suggestion, spondylosis would remain a pensionable deterioration.

Dr. McQuade's report of 1 July 1980 which was presented in support of the respondent's application of 15 July 1980 makes clear that the whiplash of 1964 would have exacerbated pre-existing spondylosis. His final paragraph indicates that any whiplash would have aggravated the spondylosis resulting from the original injury. Dr. McQuade's use of the word "both" in his last paragraph raises questions of construction. In that paragraph he certainly indicated that the original war injuries, that is spondylosis arising solely from war injuries, had been aggravated by the whiplash injury including the whiplash of 1974, and that the resulting condition together with his diabetic state constituted such a deterioration of physical and possibly mental power that the respondent was properly designated totally and permanently incapacitated. But there lurks in the paragraph the assertion that a degree of deterioration fit to be so designated was present in the respondent's condition if one had regard not to his then total deterioration but to a lesser degree thereto. If his total and permanent incapacity were due to two separate sets of disabilities, as the use of the word "both" implies, it is permissible to think that Dr. McQuade had in mind, on the one hand, the degree of deterioration due to war injuries "irrespective" of that due to other injuries, and on the other hand the degree of deterioration due to those other injuries, and considered that with respect to whichever degree one had to regard the respondent's condition was one of total incapacity for work. If one had regard to his report of 31 May 1983 to the respondent's solicitor this impression would be strengthened. But it does not appear that that report was before the Board which made the determination of 23 February 1981.

The comments of Dr. Dawson and Mr. Sweeney which were before the Board would seem to reflect and express an appreciation of the respondent's condition as referable to spondylosis as it existed in 1981. Any aggravation of spondylosis by the whiplash of 1974 would have contributed thereto. It is apparent that when, in February 1981, the Repatriation Board consisting of a Chairman and two members considered the respondent's application of 15 July 1980 it had before it evidence that the whiplash injury of 1974 had aggravated the spondylosis which was classified as due to war injuries and did contribute to the total deterioration then existing.

However, the task before the Board was to deal with and determine the respondent's actual claim for increased rate of pension. And that claim had to be dealt with according to law part of which was the provision of s.47(2) of the Repatriation Act to the effect that ". . . a Board shall grant a claim or application . . . unless it is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim or application . . .". There was advice from the Board's medical advisers that the respondent's spondylosis had deteriorated to the extent that he was permanently unable to earn more than a negligible percentage of a living wage, the TPI standard under the Second Schedule to the Repatriation Act. And there was evidence that the degree of deterioration of the respondent's physical or mental powers in 1981 might be due to a combination of war injuries and other injuries. But for the precise terms of the respondent's application of 15 July 1980 the proper inference might be that the Board approved the increase of pension by general reference to the relation between his war service injuries and the totality of his condition in 1981. But on its proper construction the respondent's claim as made in his application was for such an increase to be made in respect of his accepted war service disabilities "irrespective" of his injuries not due to war service. It was an application for increased rate of pension in respect of disabilities already accepted as war service related. It was based on the ground that due to the "retrogression" of his accepted war caused disabilities "those disabilities" alone were such that he should be classified as TPI "irrespective" of his "NDWS complaint". "NDWS" is understood to mean "not due to war service". The terms of the application were clearly designed to emphasise that the increase sought was sought in respect of incapacity due to war service disabilities irrespective of the effect thereon of other "complaints". Whether, for reasons associated with the dangers posed by s.98(1) or otherwise, it seems that the claim was clearly made for an increase with reference to war service disabilities exclusive of the effects of injuries not due to war service. Faced with such an application the duty of the Board was to grant it unless it were satisfied beyond reasonable doubt that the war injuries irrespective of other injuries had not produced a state of deterioration proper to be assessed as incapacity for life to such an extent as to be precluded from earning other than a negligible percentage of a living wage. It may be noted that the determination of the Board was not expressed in terms relating to the respondent's current condition. Its terms were "application approved ...".

It is clear that although it may have been reasonable for the Board to hold the view that the war injuries, irrespective of other injuries, had been aggravated by other injuries and that all of them contributed to the current total deterioration of the respondent's physical and mental powers, it would, on the other hand, have been very difficult for the Board to be satisfied beyond reasonable doubt that deterioration to the "TPI" standard had not come about by natural development of war service injuries apart altogether from the effect thereon of non war related injuries. It is quite impossible for this Court, and was so for the Tribunal, to be satisfied, or to draw the inference that the Board did not act by reference to the view that it could not be satisfied beyond reasonable doubt that at the relevant time there was not a state of TPI incapacity in the respondent due exclusively to war service disabilities "irrespective" of disability by aggravation of spondylosis, or otherwise resulting from injuries other than war related injuries, or that it did not assess the condition of the respondent at the TPI standard having regard only to that condition as it resulted exclusively from the war service disability irrespective of aggravation thereof by or otherwise resulting from injuries not related to war service. Unless it were shown that the incapacity in respect of which the increase was granted was an incapacity resulting from the 1974 neck injury s.98(1) does not apply. In my view this was not, and, on the evidence, could not be shown.

Having regard to this conclusion the appeal must be dismissed.

JUDGE2

In this matter I have had the advantage of reading in draft form the reasons for judgment of Smithers J. and of Davies I agree with their conclusion that the appeal should be dismissed and I agree generally with the reasons of each of them. There is nothing which I wish to add.

JUDGE3

This is an appeal from a decision of the Administrative Appeals Tribunal made on 1 July 1983. The Tribunal decided:

"(a) to set aside the determination of a delegate of the Commissioner for Employees' Compensation ("the Commissioner") of 18 November 1981 that the applicant was not entitled to compensation; and the same is so set aside;

(b) to substitute therefor a determination awarding the applicant compensation for total incapacity pursuant to section 45 of the Compensation (Commonwealth Government Employees) Act 1971 on and from the date on which he again became liable to receive compensation pursuant to section 99 of the Act; and the same is so substituted;

(c) to order the respondent to pay the applicant's costs in these proceedings on the appropriate Scale of the Industrial Court of South Australia; and the same is so ordered; and

(d) that liberty to apply generally is given."

The grounds of appeal all relate to the meaning, effect and application in the circumstances of the case e of s.98(1) of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) ("the Compensation Act") which reads:
"98.(1) Compensation is not payable under this Act to an employee in respect of an injury if the employee has received, or is entitled to receive, in respect of an incapacity resulting from that injury, a pension (other than a service pension) in pursuance of a determination or assessment made under the Repatriation Act 1920-1973 (other than Division 10 of Part III), the Repatriation (Far East Strategic Reserve) Act 1956-1966, the Repatriation (Special Overseas Service) Act 1947-1966 the Interim Forces Benefits Act 1947-1966 or the Native Members of the Forces Benefits Act 1957-1968."

This provision was considered by the Federal Court of Australia, constituted by Fox, Franki and Lockhart JJ, in Australian Telecommunications Commission v Leech, (1982) 44 ALR 441. The Court considered a case in which the applicant for Commonwealth employees' compensation was receiving a pension under the Repatriation Act 1920 (Cth) in respect of incapacity arising from hypertension and other causes which were attributable to war service, that is to say, to o which war service had contributed in a material way. The appellant sought compensation under the Compensation Act for an aggravation to his hypertension to which aggravation his civilian employment had contributed in a material way.

Fox and Lockhart JJ left open the question whether s.98(1) of the Compensation Act applies to a disease or the aggravation thereof. Franki J expressed the view that it did apply. I agree with the reasoning of Franki J in this respect. I adopt what his Honour had to say in this regard and need not repeat it.

As to the operation of s.98(1), Fox and Lockhart JJ said, at p.445:
". . . One thing that is clear, both as a matter of common sense, and as a matter of construction of the present legislation, is that the aggravation of an injury is distinct from the original injury, and is to be regarded as an 'injury' in itself. . . . The word 'injury' where secondly appearing in s 98(1) must be construed as meaning an injury which resulted in the right to receive a pension under the Repatriation Act by reason of its having the necessary connection with war service and also having resulted in incapacity. . .

Section 98 appears to us to be of limited application. It deals with the situation where an incapacity can be regarded as both compensable under the Compensation Act and pensionable under the Repatriation Act. . . ."
Franki J said, at p.447 :
"In my opinion the critical question is whether s98 of the Act denies the respondent's entitlement to compensation for the first or second injury which arose out of his employment which aggravated his pre-existing war-related hypertension. The answer to that question must depend on whether the respondent was entitled to receive compensation for the incapacity resulting from that second injury pursuant to a determination or assessment under the Repatriation Act. That is the critical factor."
All the Judges referred to the necessity for the incapacity resulting from the work-related injury to be compensable under both the Compensation Act and the Repatriation Act. The Judges referred to the finding of the Tribunal, which was under appeal, that the incapacities which were the subject of the compensation claim and of the repatriation claim in that case were "markedly different". Fox and Lockhart JJ said, at p.445 :
". . . The point has not been reached, if it will ever be reached during the respondent's lifetime, when the consequences of war service and of the aggravation merge.

For these reasons, it is not correct to say that the respondent has received or is entitled to receive a pension under the Repatriation Act in respect of an incapacity resulting from the injury for which compensation is payable."
Franki J said, at pp.446 and 447 :
"In my opinion if an employee is entitled to receive a pension under the Repatriation Act pursuant to a determination or assessment for an incapacity resulting from a particular injury he is not entitled to compensation under the Act.
. . . . .
In my opinion the onus lay upon the appellants to establish that, pursuant to a determination or assessment, the respondent was entitled to a pension in respect of incapacity resulting from the second injury under the Repatriation Act.
I consider that they did not discharge that obligation."

I respectfully agree with the views expressed by their Honours. Indeed, I do not see that any other view of s.98(1) is possible. Because the Compensation Act gives compensation in respect of an injury, when incapacity or death has resulted therefrom, and the Repatriation Act gives a pension for incapacity resulting from injury, s.98(1) refers to "an injury" when speaking of a claim for compensation and to "an incapacity resulting from that injury" when speaking of the pension entitlement. The terminology is not significant. Section 98(1) is designed to preclude a person from obtaining double compensation in respect of incapacity arising from an injury. Section 98(1) refers to "an incapacity" but, in the context, it undoubtedly means "the incapacity". It would be absurd to think that a person's claim for compensation for a work-related injury could be defeated by proof that part of the incapacity arising from that injury was pensionable under the Repatriation Act. That view was rejected by all the Judges in Leech's case.

Thus, s.98(1) applies in the circumstance that a work-related injury has resulted in incapacity and the incapacity resulting from that injury is pensionable under the Repatriation Act. As Franki J pointed out, in a review by the Administrative Appeals Tribunal, the onus lies upon the Commonwealth to establish that the circumstances prescribed by s.98(1) are fulfilled.

In his reasons, Franki J pointed out that the employee must have received or be entitled to receive a pension "in pursuance of a determination or assessment made under the Repatriation Act". His Honour's view finds support from s.98(4) which refers to the position where a claim for a pension has been made or could be made and "if the claim was so determined compensation would not be payable under this Act". Those words support his Honour's interpretation for they indicate that it would be the making of the determination or assessment under the Repatriation Act, that is to say, a decision on a claim, which would result in compensation not being payable under the Compensation Act. It is necessary, therefore, to look at any determination or assessment that has been made under the Repatriation Act with respect to an incapacity and to form a view as to whether that determination or assessment has granted a pension with respect to the incapacity which has arisen from the work-related injury.

I have spent some time in stating again the principles which were enunciated in Leech's case for it seems to me that the determination of the Commissioner for Commonwealth Employees' Compensation which was under review by the Administrative Appeals Tribunal in this present case did not adopt those principles but fell into precisely the same error as was found in the determination in Leech's case. In Leech's case, the determination of the Commissioner for Commonwealth Employees' Compensation had proceeded upon the footing that because hypertension was an incapacity which had been accepted for repatriation pension purposes, the aggravation to hypertension to which the civilian employment had contributed was pensionable under the Repatriation Act. In the present case, it was said that because spondylosis had been accepted as an incapacity for repatriation purposes and because Mr Keogh suffered an injury which could be described as aggravation of spondylosis, therefore the incapacity resulting from the aggravation was pensionable under the Repatriation Act. But both in Leech's case and in the present case, no determination or assessment of a Repatriation Board had turned its attention specifically to the incapacity to which the civilian employment had contributed. In the present case and in Leech's case the onus was on the Commonwealth to demonstrate that the incapacity to which civilian employment had contributed was incapacity in respect of which a pension had been granted under the Repatriation Act. In neither case did the evidence show that the criteria set out in s.98(1) was satisfied.

The respondent, Mr N.M. Keogh, served in the 1939/45 war. As a result of an aircraft accident during his service, he suffered an injury to his lumbar spine and had spinal fusion in 1947. Amongst other disabilities, the disability "Disc Lesion lumbar vertebrae" was accepted. Mr Keogh returned to civilian employment in about 1946.

In late 1964, as a result of an accident, Mr Keogh suffered a whiplash injury to his neck, that is, to his cervical spine. In August 1965, the following comments were made upon Mr Keogh's file by medical staff at the Repatriation General Hospital :
"No entitlement for cervical spondylosis but has been seen and treated by specialist for this condition (1964). In view of the spondylosis and disc degeneration - operated 1947, it seems reasonable to accept the spread of this condition to cervical region. Recommend A of E action.

1. Delete disc lesion lumbar vertebrae.
2. Add, Spondylosis with disc degeneration.

I prefer the single diagnosis of 'spondylosis'.
This would then cover changes in whole spine plus disc degeneration."
Following upon these comments, Mr Keogh's disability was amended to read "spondylosis". This is a very wide term covering abnormal conditions of the spine. The evidence shows that Mr Keogh was suffering from disc degeneration and arthritic changes and that this condition was found generally throughout his spine.

A claim or application for a repatriation pension must be granted unless the Repatriation Board is satisfied beyond reasonable doubt that there are insufficient grounds for granting the claim or application (see s.47 Repatriation Act). The acceptance of spondylosis as a pensionable condition may have resulted from the acceptance of a view that the trauma of the aircraft accident during war service could have set up or enhanced the development of disc degeneration and arthritic changes and that these developments could have spread from the lumbar through to the cervical region. Although I make this comment, I note that there is no evidence before this Court as to the basis upon which the repatriation pension was granted.

Clinical notes made on 28 October 1970 recorded :
"Physician's Report

Twenty years of attacks of occipito temporal headaches with pain around umbilicus in conjunction lasting 24-48 hours, coming about once/week for 19? years. Gets tense with it but can still eat, with perhaps diarrhoea (not every time) - when may have to have loose bowel actions 2 or 3 times in the morning.

Gets attacks when on holidays - but thinks attacks come when under work tension. On indomethacin, delta BTZ, codis, anatensol and mandrax. Bachelor. Smokes 10 cigs/day. Rarely alcohol. Sleeps poorly - difficulty in getting off. No dysuria; day time polyuria and polydipsia. Weight steady. Mother 77. Father died silicosis aged 56. One brother 53; had spinal fusion 1947 - headache since then. Main physical activity is gardening."
Clinical notes made on 23 November 1973 recorded :
"X-ray Cervical Spine
The changes of spondylosis noted in 1968 have not altered significantly. Multiple disc degenerations are again noted. The neural foramina are quite well maintained. Degenerative changes are seen in most of the small joints."
Clinical notes made on 18 December 1973 recorded :
"Repatriation Out-patient Department Notes :

Sensation of heavy bands around head 27 years. 58-year-old clerical worker. Sometimes pain in neck and right shoulder and leg, etc, and numbness left forearm. Also has diabetes.

On examination

No significant tenderness or spasm.
Movement restricted especially extension and rotation.
Arms - No clear neurological loss.
X-rays notes.
His description of headaches and nausea etc is suggestive of vascular headache - although the sensation of bands may be related to tension from neck.
Has found physio of little or no value which suggests the neck is not the main problem.
Would physician review and give opinion please."
Clinical notes made on 29 January 1974 recorded :
"Chronic headache for decades in conjunction with known severe cervical spondylosis, old spinal fusion. It is worse some days and generally is relieved by relaxing especially in hot bath and by the use of a collar. Cardiovascular system is normal.
Blood pressure 120/70.
Diabetes controlled by diet and Glibenclamide.
Headache has no vascular component and will need to be managed as before with acceptance, relaxation and collar.
Has had amitriptyline once, diazepam worth a trial here; say 2 mgm t.d.s. for 4 weeks."

At this period of time, Mr Keogh had for repatriation purposes the following accepted disabilities and assessments of incapacity :

Refractive Error 10%
Spondylosis 90%
Functional abdominal pains 10%
Diabetes Mellitus 10%.

These disabilities were accepted pursuant to s.101 of the Repatriation Act and in respect of them, although they added up to 120%, Mr Keogh received the general rate of pension in accordance with the provisions of Schedule 1 and Schedule 3 (Table B).

It will be seen from the clinical notes of 29 January 1974 that from time to time Mr Keogh wore a cervical collar.

On 6 February 1974, while on his way to work, Mr Keogh was a passenger in a taxicab which was involved in an accident. He was seen by an orthopaedic surgeon, Dr Michael R. Hone, who reported on 14 March 1974 :
"I saw him approximately 6 weeks after the injury and he at that stage had a grossly stiff neck with loss of movements in all directions. He experienced pain on foraminal compression on the left side. There were no abnormal physical signs in his arms. X-rays show a cervical spondylosis, but flexion and extension views show no instability. X-rays were very similar to X-rays taken in 1964 at the Royal Adelaide Hospital.

I believe that he has an existing cervical spondylosis and in the recent accident, he suffered a ligamentous injury to his neck. The treatment of this has been corrects by rest for at least 6 weeks and he now requires physiotherapy to restore function to his neck. Once again after he has good movement back in his neck, he should lose his headaches and pain in his neck and pain in his arm. As he has a pre-existing spondylosis, this may be a little slower than normal, but he should respond fairly rapidly to treatment. His exact prognosis and the time that he will be out of work and in pain, is not known yet, until a trial of physiotherapy has been carried out and then his progress could be assessed."

A claim for compensation under the Compensation Act was submitted and, on 18 June 1974, a delegate of the Commissioner for Employees' Compensation determined:
"(1) The said NOEL MATTHEW KEOGH sustained personal injury arising out of or in the course of his employment on 6 February 1974, namely, ligamentous injury to his neck.

(2) In pursuance of the provisions of section 45(2) of the said Act, he is thereby entitled to the payment of compensation of $132.50 per week from 7 February 1974 to 1400 hrs 11 February 1974 and $127.79 per week from 1400 hrs 11 February 1974 to 30 April 1974, all dates inclusive."

On 30 July 1975, Dr B.A. Higgins reported, inter alia,
"He was referred to me by Dr J. McQuade and was seen on the 18/9/74. He gave a history that on the 6th February 1974 he was involved in a car accident in which he sustained a whiplash injury to his neck. His head was jerked forward and hit the sunvisor of the car, and was then jerked backwards. He was stunned, but did not lose consciousness. Soon after he developed a considerable amount of pain in the back of the neck and was unable to move his neck from side to side. The pain radiated from his neck into the shoulders and upper arms on both sides. In addition he developed numbness and tingling, radiating down his arms and into his fingers. Almost every day he developed a severe headache and was subject to attacks of blurred vision and dizziness with the headache. He was unable to return to work for three months. He was treated with a cervical collar and physiotherapy, and in July 1974 his neck was manipulated under a general anaesthetic by Mr Michael Hone. After this his neck movement was much improved, but he continued to have headaches. When I saw his his main complaints were recurrent headaches, and a feeling of tiredness and lethargy. He admits that he was depressed because of the lack of improvement. . . .

. . . . .

X-rays of his cervical spine borrowed from Dr Michael Hone showed degenerative disc disease between C2-3, 3-4 and 4-5 intervertebral discs, with some posterior osteophyte formation. The quality of the films was not good and no oblique films were available, so that it was difficult to judge the true extent of the disease, but I felt that one could be fairly confident that some degree of pre-existing cervical spondylosis was present before the accident. This would not be surprising in a man of his age, that is, 59 years.
The symptoms of headache, dizziness and tingling in the arms would be consistent to an injury to his cervical spine caused by a whiplash movement of his head. The long continuation of his symptoms I thought might well be the result of activation of a pre-existing cervical spondylosis."

The following questions were put to Dr C.M. Steele Scott:
"1. From what neck conditions does the claimant suffer?

2. Is the condition 'ligamentous injury to the neck', for which liability has been admitted, of a temporary or permanent nature?

3. If temporary, when can it be assumed that the effects ceased?

4. If permanent, has the condition in any way contributed to:

a. His incapacity since 1 September 1975?

b. His retirement on invalidity grounds?

Note: The conditions which have been accepted as Due to War Service under the Repatriation Act, and aggravations of any or all of these conditions, are ineligible for acceptance under the Compensation (Australian Government Employees) Act 1971/74. The questions are intended to separate the effects of the condition for which liability has been admitted, ie, 'ligamentous injury to the neck', and those conditions accepted under the Repatriation Act. Please refer also to the notes on disease, below.",
On 27 October 1975, Dr Steele Scott responded as follows:
"OPINION: With regard to the neck condition, Mr Keogh has evidence of generalised cervical spondylosis. These changes are present radiologically. They are extermely common in a gentleman of his age, and not necessarily symptomatic. The injury he describes to his neck is of a flexion-extension nature, which causes damage to the soft tissue particularly the ligaments of his neck and the symptoms that he describes, are entirely consistent with this type of injury.

In response to your questionnaire:

1) Mr Keogh suffers from cervical spondylosis and a soft tissue ligamentous injury to the neck.

2) The ligamentous injury to the neck is usually regarded as causing temporary disability, however, symptoms can persist for many years and as this injury is likely to have aggravated his cervical spondylosis, I think the changes at his age are essentially of a permanent nature, although some symptomatic improvement may occur.

3) No longer relevant.

4) A) His main incapacity since September, 1975, has been due to his neck as his back symptoms had not prevented him from working over the past 30 years.

B) I understand his retirement on invalidity grounds is entirely due to his neck injury."

On 5 November 1975, Dr Hone advised:
"This is a difficult case to decide whether all his present symptoms are due to his accident on 6.2.74 or some are from his previous cervical spondylosis which obviously caused him considerable debility.

In my opinion, I feel that probably only 50% of his present condition could be attributed to the accident on 6.2.74."

On 8 September 1975, Mr Keogh was examined by a Commonwealth Medical Officer to determine his fitness for continued duty. The officer reported that, in his opinion, Mr Keogh was unfit for further service and should be retired. Mr Keogh was subsequently retired on 13 January 1977 from his service with the Commonwealth on medical grounds.

I note that there was no medical evidence to that point of time that Mr Keogh was entitled to a repatriation pension with respect to the totality of the incapacity resulting from the injury on 6 February 1974 or even a substantial part of that incapacity. Nor did the medical evidence show that there was any separate aspect of his incapacity which could be separated from the remainder and in respect of which Mr Keogh was entitled to a repatriation pension. As a result of the accident of 6 February 1974, Mr Keogh suffered more than an aggravation of his pre-existing cervical spondylosis, being disc degeneration and arthritic changes. In the accident on 6 February 1974, Mr Keogh suffered a whiplash injury which may well have aggravated that condition but, in addition, he suffered ligamentous injury, causing damage to the soft tissue particularly the ligaments of his neck. The medical evidence did not show that the ligamentous injury was an injury which resulted in an incapacity to which war service had contributed. Nor did it show, by the end of 1975, that any disability from the ligamentous injury had ceased and that Mr Keogh was left only with an aggravation of his pre-existing condition. The medical evidence was quite clear that, in the accident of 6 February 1974, which occurred in the course of his civilian employment, some 28 years after he had ceased his war service, Mr Keogh suffered trauma of a flexion-extension nature in his cervical region.

In late 1975, Mr Keogh sought an increase in his repatriation pension. At that time he was 60 years of age and had been found to be unfit for work in the Commonwealth Public Service. However, his application for an increase was rejected in March 1976. Not only was he not put on to the intermediate rate, the rate for temporarily totally incapacitated persons, or on to the special rate, the TPI rate for permanently totally incapacitated persons, but no change whatever was made with respect to his entitlement to a pension or to the rate of his pension. The description of the disability "spondylosis" was not changed, the assessed rate for the spondylosis, 90%, was not changed and there was no change in the rate of his pension.

Accordingly, the position was, in March 1976, that there was neither a determination nor an assessment of a Repatriation Board which gave any entitlement to a pension with respect to the incapacity arising from the February 1974 accident. Nor was there any medical report which indicated that a claim for a repatriation pension with respect to that incapacity should succeed.

Mr Keogh continued to receive Commonwealth employees' compensation until, after receiving damages at common law for his injury resulting from the accident, the Commissioner in March 1980 acted under s.99 of the Compensation Act to recover from him the compensation which hitherto had been paid and at the same time suspended the operation of the determination until such time in the future as the compensation that was otherwise payable exceeded the amount of the damages recovered. The determination of 24 March 1980 read as follows:
"1. Having regard to the award of damages of $29,166.30 to the said Noel Matthew Keogh and to the fact that he was not held to be responsible in any way for the injury sustained on 6 February 1974, namely, ligamentous injury to neck, the amount which the said Noel Matthew Keogh is liable to pay to the Department of Defence, in accordance with sub-section 99(3) of the said Act, is 100 per cent of the amount of the compensation that was paid to him by the Department of Defence up to and including 4 May 1978 when the damages were paid to him or for his benefit.

2. In accordance with the provisions of sub-section 99(2) of the said Act, the said Noel Matthew Keogh is, therefore, not entitled to any payments of compensation in respect of the injury sustained on 6 February 1974 unless and until the compensation, that the Department of Defence would otherwise be liable to pay, exceeds the amount of the damages recovered by . . . or for the benefit of the said Noel Matthew Keogh."
It was agreed by counsel that that period of time would have expired about the middle of 1981.

On 15 July 1980, Mr Keogh again sought an increased rate of pension. The application read, inter alia,
"Retrogression of my accepted war caused disabilities which have required frequent & increasing treatment with little immediate & no lasting benefit.

I have to remain under constant medical surveillance, observe a strict diet, ingest significant quantities of medication & live a very restricted existence devoid of social intercourse.

My LMO Dr McQuade is of the opinion that my accepted disabilities are such that I should rightly be classified as T & PI irrespective of my NDWS complaints & I enclose his opinion for the benefit of the R/B to assist them in coming to a decision in my favour."
It will be noted that this was an application for an increased rate of pension in respect of the accepted war caused disabilities.

The application was supported by a report from a general practitioner, Dr J.A. McQuade which concluded, inter alia,
"Mr Keogh is totally and permanently incapacitated both as a result of his war accident and subsequent spinal damage, aggravated by whiplash injury and the diabetic state which bears relationship to treatment of his spinal problem."

On 17 October 1980 Dr J. Sweeney, to whom Mr Keogh had been referred by the Department of Veterans' Affairs, reported that Mr Keogh complained of general aches and pains in the back, neck and shoulders, that this was getting worse, that he had retired as a Paymaster five years previously on medical grounds, that he slept badly due to backache and that he had to take sleeping tablets. Dr Sweeney reported that Mr Keogh wore a back brace and a cervical collar and stated his opinion that "He has generalised spondylosis. I don't think he is fit for any work even on a part-time basis". Subsequently, Dr W.D. Dawson, Departmental Medical Officer, reported, on 17 February 1981, "In my opinion, his spondylosis has deteriorated to the extent that he is now unable to earn more than a negligible percentage of a living wage". These reports, together with Dr McQuade's report, and other information which is not before the Court, were referred to a Repatriation Board with a recommendation by the examiner that Mr Keogh be assessed as being T & PI. The determination of the Repatriation Board was "Application is approved and pension is increased to the special rate specified in Schedule 2 of the Act as from 16.7.80 (also considered under A126/5)". That determination was made on 23 February 1981. The Court was not informed of the significance of the words in brackets and I therefore assume they have no significance for present purposes. The date of the commencement of the increased rate of pension was the date of the lodgement of the claim therefor.

In evidence before the Administrative Appeals Tribunal, a further report from Dr McQuade of 31 May 1983 was received. That states, inter alia,
"As a result of the injury Mr Keogh sustained a traumatic Spondylitis, another synonym for whiplash injury, which is beyond the scope of the amended entitlement of 13th June 1965 which specifically relates to 'degenerative change - plus any disc degeneration'. Mr Keogh sustained neither further degenerative change nor disc degeneration. I repeat, he sustained an injury, which relates to tissue, eg, musculo-ligamentous, neurovascular as well as bone."

At the hearing before the Administrative Appeals Tribunal, the following concessions or agreements were made:
The appellant (sic) does not submit that the effect of Dr McQuade's statement contained in the third sentence of the penultimate paragraph of his report dated 31st May 1983 is that the aggravation of the appellant's pre-existing cervical spondylosis on 6 February 1974 was not a factor which contributed to his total and permanent incapacity as at February 1981 or was not a factor which contributed to changes in his spine.

The evidence of Dr W.D. Dawson is that in making his assessment on account of the appellant's spondylosis on 17 February 1982 he took into account the whole history of the appellant's spinal condition including the effects of war service on his spine and any and all aggravations of that condition including the aggravation of 6 February 1974 and all other matters affecting the condition of his spondylosis as diagnosed on 17 February 1981.

On this evidence, it is submitted that the Commonwealth had satisfied the onus of proof of establishing that, by increasing the rate of pension in February 1981, seven years after the injury in February 1974, the Repatriation Board determined or assessed a pension in respect of the incapacity resulting from the injury of 1974.

This submission seems to be based first upon the agreement made as to Dr Dawson, namely, that in making his assessment he took into account the whole history of the appellant's spinal condition, including the aggravation on 8 February 1974. However, the fact that the Departmental Medical Officer took those matters into account when making a recommendation which later went to the Repatriation Board does not establish that Mr Keogh received or became entitled to receive pursuant to a determination or assessment a pension in respect of the incapacity then resulting from the injury of February 1974. Dr Dawson's report to the Repatriation Board was a written report and I have already set out the substance of it.

Mr Keogh did not in July 1980 request an increased rate of pension with respect to the incapacity resulting from the accident of 1974. He requested an increased rate of pension with respect to his accepted war disabilities. In his report, the orthopaedic surgeon, Dr Sweeney, did not refer to the accident of 1974. Certainly he referred to a cervical collar but I have already pointed out that Mr Keogh had used such a collar from time to time prior to the 1974 injury. In his report Dr Dawson did not refer to the 1974 injury nor to the accident and did not in any way raise those matters for the attention of the Repatriation Board.

The Repatriation Board was asked to determine a rate of pension with respect to a disability, spondylosis, which had been accepted in 1965 and which, to the knowledge of the Repatriation Board, would have related back to the 1946 injury which Mr Keogh suffered in the aircraft accident.

It does not seem to me to be possible to draw the conclusion from the evidence that a pension was granted in 1981 with respect to the incapacity which resulted from the accident which occurred in the course of Mr Keogh's civilian employment in February 1974. The Repatriation Board was not concerned with that accident. It was not asked to make any finding in relation to it and it made no finding in relation to it. The Repatriation Board in 1981 determined a rate of pension with respect to a condition which had been accepted in 1965 and which had its genesis in an accident which occurred in the course of Mr Keogh's war service in 1946.

Reliance was no doubt placed upon the wide meaning of the word "spondylosis". The report from Dr McQuade of 31 May 1983 states:
"Spondylosis, as defined in BLAKISTON'S Medical Dictionary, is a condition of the vertebrae other than normal. It may be degenerative, infective, traumatic or defined as a syndrome embracing conditions other than degeneration or infection or trauma."
The word may be wide enough to cover the ligamentous injury which occurred in 1974. But even if it is wide enough to do so, there is no basis for concluding that the adoption of the word "spondylosis" had the effect that any condition which might possibly fall within that description had been accepted by a Repatriation Board as being related to war service. It was clear from the history of the file what was accepted, namely, a condition to which the trauma of 1946 contributed or may have contributed.

There is a suggestion in the argument put forward that the assessment of a TPI rate meant that there was a grant of a pension for total incapacity. But the special rate, the TPI rate, is defined in Schedule 2 as being applicable to a person who is "incapacitated for life to such an extent as to be precluded from earning other than a negligible percentage of a living wage".

The name of the rate therefore does not assist the Commonwealth. The rate was granted because the conclusion was drawn that it could not be established beyond reasonable doubt that Mr Keogh was not permanently precluded from earning more than a negligible percentage of a living wage by reason of an incapacity to which war service contributed.

In the present case, there is no determination or assessment of a Repatriation Board which made any reference to the incapacity resulting from the injury of 1974. Moreover, there is no medical report which states that the whole of the incapacity resulting from the 1974 injury was pensionable under the Repatriation Act. No doubt the position has become blurred over a period of years. Nevertheless, there is no medical report which turned its attention to the incidents of the 1974 injury and expressed the view that all incapacity resulting therefrom, or all but an insignificant part of that incapacity, was pensionable under the Repatriation Act and indeed that it was the subject of the rate increase granted in 1981. Such a report may, on its own, not have concluded the matter in the Commonwealth's favour for, as I have said, there must be a receipt or entitlement to receive pursuant to a determination or assessment under the Repatriation Act. But the absence of any such report simply emphasises the point that I earlier made that although the Repatriation Board may in 1976 have been concerned with the 1974 accident and its after-effects, simply because of the proximity of time, the Repatriation Board in 1981 had no concern with that matter. There is no medical report which suggests that the Repatriation Board in 1981 was or should have been concerned with the totality of the incapacity which resulted from the 1974 accident.

In their reasons for judgment in Leech's case, Fox and Lockhart JJ said:
". . . The point has not been reached, if it will ever be reached during the respondent's lifetime, when the consequences of war service and of the aggravation merge."

Their Honours did not make clear what they intended by the word "merge". If, however, their Honours had in mind that a time may come when the only remaining incapacity from a work-contributed injury is incapacity to which war service has also contributed and which therefore is pensionable under the Repatriation Act, then there is no significant evidence in this present case that that stage has been reached. The Administrative Appeals Tribunal accepted Dr McQuade's report of 31 May 1983 and that report, which is really the only one dealing with this matter, expresses a contrary view. The concession made with respect to Dr McQuade's report does not lead to the conclusion that all incapacity which resulted from the 1974 accident and which still existed in 1981 was an incapacity to which war service had contributed and which was the subject of a pension granted under the Repatriation Act. That is not the effect of Dr McQuade's report.

In the result, there was no evidence before the Administrative Appeals Tribunal on which it would have been proper for the Tribunal to act under s.98(1) so as to affirm the cancellation of the determination of 18 June 1974. It was not argued that in this circumstance the decision of the Administrative Appeals Tribunal was incorrect. It follows that the appeal should be dismissed.

However, I have reached this conclusion on a basis different in some respects from the reasoning of the Tribunal. The Tribunal said, in paragraph 13,
"On any view of the evidence in this matter the results of the war service injury were not adequate to award the applicant a T & PI pension on the basis of his war service alone, that is to say without including the incapacity resulting from the compensable injury."
That remark seems to proceed upon the footing that there was no common element of injury or incapacity to which both war service and civilian employment contributed. It appears to me that the evidence does not support that view. Dr Higgins said in the extract of his report of 30 July 1975, which I have earlier set out, that the long continuation of Mr Keogh's symptoms might well be the result of aggravation of the pre-existing cervical spondylosis. The other medical evidence is consistent with this view. There is no reason why both the war accident and the whiplash injury of 1974 could not have contributed to disc degeneration and arthritic changes.

If there was a common element, the question did not arise as to whether the appellant could have received a TPI pension "without including the incapacity resulting from the compensable injury". Indeed, no medical report before the Tribunal turned its attention to what Mr Keogh's condition would have been in 1980 when he made his application for an increase in the rate of pension had he not had the whiplash injury in 1974.

In paragraph 14 of its reasons, the Tribunal said,
". . . In my view, that increase of the Repatriation pension awarded as a result of a compensable injury should not have been given; had it not been so awarded the issue which arises under section 98 would never have arisen."
But, plainly, the Repatriation Board was bound to make an assessment of a rate of pension with respect to Mr Keogh's accepted war disabilities once it had been asked to do so. It had no discretion about the matter. Section 98 makes it clear that it is the right to compensation which is extinguished, not the right to a pension. The Repatriation Board acted properly. I do not see any evidence which suggests that its assessment of the rate of pension was not fully justified.

The point which Leech's case made clear was that a determination or assessment under the Repatriation Act does not extinguish a right under the Compensation Act unless the pension is granted or assessed in relation to the incapacity which resulted from the compensable injury. Section 98(1) applies only when the compensable injury has resulted in incapacity and the employee is entitled, pursuant to a determination or assessment made under the Repatriation Act, to a pension in respect of that incapacity. A pension granted with respect to a subject matter markedly different from the incapacity resulting from the compensable injury, including a pension granted with respect to part only of that incapacity, will not defeat the right to employees' compensation.

As I have said, in the present case, the conditions specified by s.98(1) were not shown to have been satisfied. In my opinion, the appeal should be dismissed with costs.