Conway, J.F. v Repatriation Commission

No judgment structure available for this case.

Re: JOHN FRANCIS CONWAY
And: REPATRIATION COMMISSION
No. TG7 of 1988
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop(1), Lockhart(2) and French(3) JJ.

CATCHWORDS

Administrative Law - decision of Administrative Appeals Tribunal refusing applicant's claim for a disability pension under the Veterans' Entitlements Act - whether the Tribunal erred in its determination of the question whether the applicant's disease was war-caused and whether the applicant became incapacitated from such disease - onus of proof where a claim is made under the Act.

Administrative Appeals Tribunal Act 1975 s.44

Veterans' Entitlements Act 1986 s.9, s.13, s.120

HEARING

MELBOURNE

#DATE 28:10:1988

Counsel for Appellant: Mr A. Blow

Solicitor for Appellant: Australian Legal Aid Office

Counsel for Respondent: Mr K. Procter

Solicitor for Respondent: Australian Government Solicitor

ORDER

The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This appeal is brought in the original jurisdiction of the Federal Court pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 on questions of law from a decision of the Administrative Appeals Tribunal, ("The Tribunal") given on 8 April 1988. By that decision the Tribunal affirmed a decision of the Veterans' Review Board made on 11 August 1986 affirming a decision of the Repatriation Board made on 17 September 1984 refusing a claim for disability pension by the applicant in respect of "spondylosis of lumbar spine and spondylolisthesis with surgical fusion." It is most unfortunate that matters of this kind take so long to be determined.

The Veterans' Entitlements Act 1986 ("the Act") imposes a liability on the Commonwealth to pay a pension to veterans who come within the provisions of the Act. For present purposes, the relevant provisions of the Act are contained in s.13 of the Act as follows:-

"s.13(1)Where -

(a) .....

(b) a veteran has become incapacitated from a ..... war-caused disease,

the Commonwealth is, subject to this Act, liable to pay -

(c) .....

(d) in the case of the incapacity of the veteran - pension to the veteran,

in accordance with this Act."

The applicant is a veteran under the Act having served in the Royal Australian Navy between 6 November 1944 and 25 January 1947. He performed continuous full-time service as a stoker outside Australia in the latter half of 1945 while serving overseas in H.M.A.S. "Quickmatch". In 1984 he became incapacitated and claimed a pension under paragraph 13(1)(b) of the Act and the issue raised was whether he had "become incapacitated from a war-caused disease" within the meaning of that paragraph. For the purposes of the Act the phrase "a war-caused disease" is defined in s.9. For present purposes, the relevant parts of that definition are set out:-
"9(1) Subject to this section, for the purposes of this Act, .... a disease contracted by a veteran shall be taken to be a war-caused disease, if -

(a) .....

(e) the .... disease contracted, by the veteran -

(i) .....

(ii) was ... contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service, and, in the opinion of the Commission, was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran .... contracted the disease, but not otherwise."

The applicant is suffering from the disease of spondylolisthesis which, for the purposes of the review by the Tribunal, was treated as:-
"A forward displacement or slipping of one of the bony
segments of the spine (i.e. of a vertebra) over its
fellow below, but usually the slipping of the fifth or
last lumbar (loin) vertebra over the body of the
sacrum. To visualize this, one may conceive the spine
as a stack of coins or, better still, of tuna cans.
The slipping of a coin or a can forward upon the one
below represents a case of spondylolisthesis. 2. The
spinal deformity produced by the slipping forward of
the lumbar (loin) vertebra so that they overhang and
obstruct the pelvis; especially, such a deformity
produced by the displacement of the last, i.e. the
fifth lumbar vertebrae over the top of the sacrum."
At the hearing before the Tribunal, an issue arose as to whether the spondylolisthesis from which the applicant was suffering was a war-caused disease. From the material before it, the Tribunal found that it was a war-caused disease. There seems to have been some confusion by the Tribunal as to the basis for that finding. On one view it was open to the Tribunal to find that the disease was contracted as the result of an incident when the applicant fell and injured his back while heading to action stations. On another view the applicant was suffering from the disease which was aggravated by the fall. In any event, the Tribunal found that the applicant was suffering from a war-caused disease. In one part of its reasons, and after considering the evidence of the expert called by the applicant, Mr Bedi, the evidence called by the respondent, Mr Turner, and the evidentiary provisions contained in s.120 of the Act, the Tribunal said:-

"Whilst we are appreciative of the apparent validity of some of the criticisms made by Mr Turner's evidence of Mr Bedi's opinions, we cannot reject the hypothesis which Mr Bedi advanced as unreasonable. It is simply not possible in the light of his evidence to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease was war-caused."

In another part of its reasons, the Tribunal said:-

"In the present case once spondylolisthesis became symptomatic in 1945 the condition remained as one which was aggravated by war service and therefore war-caused. A quiescent condition was worsened and remained a potential threat to further incapacity".

There was sufficient material before the Tribunal to make the finding that the applicant was suffering a war-caused disease within sub-paragraph 9(1)(e)(ii) of the Act.
Having regard to that finding and the undisputed facts that the applicant was a veteran under the Act and that in 1984 he became incapacitated, the issue before the Tribunal was whether the applicant had "become incapacitated from a war-caused disease," namely the spondylolisthesis. On this issue, there was conflicting medical evidence. To a large extent, the conflicting medical evidence arose because of events which arose after the applicant was discharged from the Navy. He participated in football matches during which he suffered back pains and eventually was forced to s playing the game because of the existence of that pain. He continued suffering from back pain. In 1973, while lifting a stove from a truck, he twisted and injured his back. As a result of the injury then received, the applicant underwent surgery to have a surgical fusion performed by Mr Bedi.
On the issue of whether the applicant had "become incapacitated from" the war-caused disease of spondylolisthesis", the Tribunal said:-

"However, as we have said the problem of whether it produced the incapacity now complained of is more complex. There is no persuasive evidence that the trouble he experienced at football requiring him to wear a brace was occasioned by the fall rather than the mere effort of football itself. There is no persuasive evidence to satisfy us that the pain he experienced after he gave up football was other than early degenerative changes. There is every reason to believe that it was the accident lifting the stove which required the surgical fusion in 1973. There is no persuasive evidence that it was either the spondylolisthesis or the fall which caused him to give up work and make the current claim. These considerations force us to the conclusion that we are not reasonably satisfied that he is or was in 1984 incapacitated by a war-caused disease. We rather prefer the view expressed by Mr Turner, namely that he suffered some transient aggravations of a congenital and/or adolescent condition culminating in a severe trauma in 1973 sufficient to require surgical fusion. Natural degenerative changes have since produced a gradual deterioration resulting in retirement from work."

One of the questions of law raised by this appeal is directed to this issue but before considering that issue, reference should be made to the relevant provisions of the Act. Section 120 of the Act appears to be directed to questions of onus of proof that are relevant where a claim is made under the Act. For present purposes, it is desirable to refer only to those parts of the section relevant to a claim for a pension by a veteran based upon "incapacity from a war-caused disease" under paragraph 13(1)(b). The parts of s.120 relevant to a claim of that kind are:-

"120(1)Where a claim ... for a pension in respect of the incapacity from ... disease of a veteran ... relates to the operational service rendered by the veteran, the Commission shall determine ... that the disease was a war-caused disease ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

(2) .....

(3) In applying sub-section (1) ... in respect of the incapacity of a person from ... disease ... related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining-

(a) .....

(b) that the disease was a war-caused disease .....

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 ... disease ... with the circumstances of the particular service rendered by the person.

(4) Except in making a determination to which sub-section (1) ... applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act ... decide the matter to its reasonable satisfaction.

(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that-

(a) ...

(b) a disease contracted by a person is a war-caused disease ...

(d) a claimant ... is entitled to be granted a pension ... under this Act.

(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on-

(a) a claimant ... for a pension ... under this Act; or

(b) the Commonwealth, the Department or any other person in relation to such a claim ...,

any onus of proving any matter that is, or might be, relevant to the determination of the claim ...".

Some general comments may be made. In making its finding that the applicant was suffering from a war-caused disease, the Tribunal correctly applied sub-sections 120(1) and (3), but in that respect, the aggravation arising from the incident when the applicant fell, is not a separate war-caused disease. The war-caused disease is spondylolisthesis. The incident of the fall is but a step in determining that the disease is a war-caused disease. The Tribunal was required then to determine whether the applicant is incapacitated from the disease of spondylolisthesis, not from the aggravation resulting from the incident of the fall.
The provisions of sub-sections 120(5), (6) and (7) were introduced by the 1986 Act. Those provisions make interesting reading in the light of what was said in McDonald v Director-General of Social Security (1984) 1 FCR 354 by Woodward J. at pp 356-7 and Northrop J. at pp 365-6. That case involved the Director of Social Security, but similar principles should have been applied with respect to the administrative tribunals under the Act and with respect to the Tribunal on review.
On appeal, submissions were directed to the issue of whether the provisions of sub-sections 120(1) and (3) applied with respect to determining whether the applicant is incapacitated from a war-caused disease. Counsel for the applicant contended that the sub-sections did not but that the provisions of sub-sections 120(4), (5) and (6) applied. Counsel for the respondent argued that sub-sections 120(1) and (3) applied.
The provisions of sub-sections 120(1) and (3), on their natural reading, apply to a determination of whether a disease was a war-caused disease or not. There is much wisdom in those provisions since the lapse of time and paucity of evidentiary material could make it difficult to establish how a disease was contracted or aggravated by war service. The provisions are designed to assist claimants on this aspect of their claims. The issue of whether they are incapacitated from a war-caused disease come within a different category. There is no logical reason why sub-sections 120(4), (5) and (6) should not apply. Those sub-sections do not impose any "onus of proof" upon a claimant but the Commission, or Tribunal on review, must decide the issue "to its reasonable satisfaction".
In the present case, the Tribunal decided this issue by applying sub-section 120(4). In doing so, it appears to have acted on the basis that it had to be reasonably satisfied that the incapacity resulted solely from the aggravation to the war-caused disease caused by the fall. This is illustrated by the sentence "There is no persuasive evidence that the trouble he experienced at football requiring him to wear a brace was occasioned by the fall rather than the mere effort of football itself" appearing in the quotation set out earlier in these reasons. This is illustrated further by the following extracts from the Tribunal's reasons for decision:-

"The second issue if we find that the disease or condition was war-caused by reason of that aggravation requires us to consider pursuant to s.13(1)(b) whether the applicant has become incapacitated by reason of that war-caused disease. "Mr Blow (counsel for the applicant), conceded that if the question were incapacity (which we have called the second issue) reasonable satisfaction is the proper test (s.120(4)). Mr Everard (counsel for the respondent) did not argue that this latter provision could become relevant, but that is because his case was based solely on the argument that the disease was not war-caused. We agree with Mr Blow's concession ..."

After referring to the case of Heaps (Decision No. 3664 - 29 July 1987) and referring to the hypothesis that "of a number of transient aggravations was the only reasonable one" the Tribunal said:-

"We see it rather as going directly to the question as to whether the present incapacity, since the claim was made in 1984, can be said to be due to the disease aggravated by the fall in 1945. When it comes to considering the whole of the evidence since 1945, it is extremely difficult to isolate the fall and treat it alone as producing a continuing incapacity."

The Tribunal then made some further comments relating to Heaps and then expressed the conclusion set out earlier in these reasons:-

"In the present case once spondylolisthesis became symptomatic in 1945 the condition remained as one which was aggravated by war service and therefore war-caused. A quiescent condition was worsened and remained a potential threat to further incapacity."

Immediately following that passage, the Tribunal expressed its final conclusion commencing "However, as we have said" as set out earlier in these reasons for judgment.
From a reading of the whole of the reasons for decision given by the Tribunal, it appears the Tribunal was in error in applying sub-sections 120(4), (5) and (6) to the facts found in determining the question whether the applicant was incapacitated from the disease of spondylolisthesis. Having made the finding that the disease was war-caused, the issue of the fall was no longer of any importance. In determining incapacity it must be remembered that disease need not be the sole or only cause of the incapacity. The existence of other events aggravating the disease thereby resulting in incapacity does not deny incapacity from the disease. One of the very features of a disease of this kind is that it is of a continuing nature, asymptomatic as it is described by the Tribunal, but incapacity from that disease could be brought on by some other event. In those circumstances, the liability of the Commonwealth to pay a pension may well lie.
One of the questions of law raised by the applicant was whether the Tribunal had erred in law in that its determination was contrary to the evidence or contrary to the weight of the evidence. This, strictly speaking, is not a question of law, but it could be a question of law if construed to mean that no Tribunal properly applying the law, could have come to the conclusion it did. In any event, the Court did not allow counsel for the applicant to pursue this question.
In all the circumstances, the appeal should be allowed with costs and the matter be referred back to the Tribunal to determine, after hearing such further material as it sees fit, whether the applicant has become incapacitated from the disease of spondylolisthesis and if so the rate of pension to which the applicant is entitled.

JUDGE2

I agree with the reasons for judgement of French J.

JUDGE3

On 5 February 1945 John Conway who was then 17 years of age, enlisted in the Royal Australian Navy. Between 26 June and 22 November 1945 he served as a stoker aboard HMAS Quickmatch. One night during this period he was off duty and asleep when action stations sounded. He woke, changed into overalls and anti-flash gear and quickly pulled boots on to his feet. In his haste he put a work boot on one foot and a football boot on the other. As he began to move to his post on the aft gun the studs on the sole of the football boot failed to grip on the steel floor of the deck. He slid across the floor and hit a stairway, hurting both his left leg and his back.

It is that injury to his back, sustained some 43 years ago, that brings him to this Court. He appeals against a decision of the Administrative Appeals Tribunal, the effect of which was to refuse him a disability pension on account of incapacity which, it is said, he suffered because of that injury in 1945. The appeal is brought on questions of law relating to the proper construction of the Veterans' Entitlements Act 1986. Before turning to the Tribunal's reasons for decision, it is necessary to set out some of the relevant statutory provisions.
Statutory Framework
The liability of the Commonwealth to pay a pension for incapacity arising from a war-caused injury or disease is imposed by s.13 of the Act, which in the relevant parts provides:-
"13(1) Where -

(a) the death of a veteran was war-caused; or

(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to this Act, liable to pay-

(c) in the case of the death of the veteran - pensions to the dependants of the veteran; or

(d) in the case of the incapacity of the veteran - pension to the veteran,

in accordance with this Act."

The term "disease" is defined in sub-s.5(1) of the Act in the following way:-

""disease" includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development and the recurrence of such an ailment, disorder, defect or morbid condition, but does not include the aggravation of such an ailment, disorder, defect or morbid condition."

The concept of a war-caused injury or disease is explained in s.9 of the Act:-

"9(1) 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; .

.

.

(e) the injury suffered, or disease contracted, by the veteran -

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service, and, in the opinion of the Commission, was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered the injury or contracted the disease, but not otherwise.

.

.

."

The standard and onus of proof in characterising a disease or injury as war-caused and in relation to other determinations or decisions is set out in s.120 of the Act:-

"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.

.

.

.

(4) Except in making a determination to which sub-section (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.

(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that -

(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;

(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;

(c) the death of a person is war-caused or defence-caused; or

(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on -

(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b) the Commonwealth, the Department or any other person in relation to such a claim or application, any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

.

.

."

Findings of Fact by the Tribunal

(i) History of Symptoms and Injuries

The Tribunal found that prior to the accident in 1945, the applicant had not experienced any problems with his back. He was able, in spite of the fall to man the gun to which he was assigned. In the weeks that followed however he experienced pain sufficient to require treatment by massage, the application of liniment and some assistance with his work as a stoker. It appears that this discomfort did not continue, for his medical report prior to discharge on 25 January 1947 recorded no complaint of back pain or injury. Not long after discharge the applicant began playing competition football. He subsequently suffered periodic lower back pain to the extent that he considered giving it up. But using a special brace prepared by the club physiotherapist, he continued playing for another 9 or 10 years. By August 1958 he had ceased playing but experienced continuing pain. X-rays were taken at that time. He continued to suffer back ache through to 1973. In that year he injured his back while manipulating a stove off the rear of a van. He sought medical advice and underwent a surgical fusion operation which was performed by a Mr Bedi.
After the operation, the applicant continued in his occupation as an electrician but in a more limited way until 1984 when he stopped work and applied for the disability pension.
An earlier claim for disability pension had been made in 1973 and rejected by the Repatriation Board and the Repatriation Commission.
(ii) Findings on Medical Evidence
The Tribunal found that it became apparent when the surgical fusion operation was performed in 1973 that the applicant suffered from a condition known as spondylolysis. The condition, which was probably congenital, is characterised by a break or weakness in the linkage of the vertebrae due to the absence of a bony bridge between the bodies of the vertebrae and their processes. Mr Bedi's examination of the 1958 x-rays disclosed that he also suffered with spondylolisthesis. The definition of that condition which was accepted by the Tribunal, is set out in J.E. Schmidt Attorney's Dictionary of Medicine Vol. 3 p.S.154:-

"A forward displacement or slipping of one of the bony segments of the spine (i.e. of a vertebra) over its fellow below, but usually the slipping of the fifth or last lumbar (loin) vertebra over the body of the sacrum. To visualize this, one may conceive the spine as a stack of coins or, better still, of tuna cans. The slipping of a coin or a can forward upon the one below represents a case of spondylolisthesis. 2. The spinal deformity produced by the slipping forward of the lumbar (loin) vertebra so that they overhang and obstruct the pelvis; especially, such a deformity produced by the displacement of the last, i.e. the fifth lumbar vertebrae over the top of the sacrum."

Spondylolisthesis manifested in the applicant as a slight forward slipping of the body of the L5 vertebra. The Tribunal initially took the view that it pre-dated the 1945 fall, finding that "when the applicant fell on "Quickmatch" an asympstomatic condition which had existed prior to his commencement of naval service became symptomatic...". It expressly refrained from any finding that the condition was congenital or had occurred during adolescence but went on rather curiously to say:-

"Nor is it necessary to determine, if indeed there was no such event prior to the fall on the ship, whether spondylolisthesis then became apparent as a result of that fall for the first time."

To this point the findings went no further than a determination that the initial symptomatic manifestation of the spondylolisthesis coincided with the fall.

Having made its findings on the primary facts, the Tribunal set out the relevant statutory provisions and then identified the issues for determination. In substance they were said to be:-

1. Was the applicant's disease aggravated by his war service?

The issue was so stated, according to the Tribunal, because it was implied in its findings that the applicant suffered the disease before his eligible war service and because there was no contribution in a material degree by that service.

2. If the disease were war-caused by reason of war-caused aggravation of a pre-existing condition, has the applicant become incapacitated by reason of that war-caused disease?

Having set out these two questions the Tribunal proceeded to consider the first under the heading "Was the Disease War-Caused?". Now that heading was quite consistent with the "first issue" as formulated, for a pre-existing disease aggravated by eligible war service is taken to be a "war-caused disease" by virtue of the provisions of sub-para.9(1)(e)(ii) of the Act. But, in spite of the formulation of the first issue in terms of war-caused aggravation, the Tribunal concluded that it could not reject as unreasonable an hypothesis advanced by Mr Bedi that the spondylolisthesis was caused (and not merely aggravated) by the fall in 1945. The Tribunal described Mr Bedi's hypothesis in the following terms:-

"...the condition was caused by the ship fall because spondylolisthesis normally occurs with a fall or forceful injury and the Applicant had no history of forceful injuries."

It thus described and accepted as reasonable the hypothesis that the disease in question either resulted from an occurrence that happened while the applicant was rendering operational service or arose out of or was attributable to his eligible war service (see sub-para.9(1)(a) and 9(1)(b) of the Act).
At the same time, however, it noted a concession by Mr Turner, a medical witness relied upon by the respondent, that "the fall on the ship could have caused a pre-existing spondylolisthesis to become symptomatic for the first time". This concession would support the hypothesis that the disease was aggravated by eligible war service and was thus a war-caused disease (sub-para.9(1)(e)(ii) of the Act).
Having found that it could not reject Mr Bedi's hypothesis as unreasonable, the Tribunal said:-

"It is simply not possible in the light of his evidence to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease was war-caused."

The reasons for decision then addressed the "second issue" under the heading "Incapacity". Counsel referred the Tribunal to one of its earlier decisions, a case called Heaps (No. 3664 - 29 July 1987), and cited from it a passage which related to transient aggravation of a condition pre-dating eligible war service. The question referred to in the passage cited relates to the application of the term "aggravated" for the purposes of sub-para.9(1)(e)(ii). The Tribunal in Heaps had said that, for the purposes of the statute, the aggravation had to amount to "...a worsening of a marked and indefinite duration which is not merely a temporary phenomenon". At issue in that case was the description of the disease as "war-caused". It seems to have had nothing at all to do with the second issue as defined in this case, namely whether the applicant's present incapacity resulted from the disease which the Tribunal had found it was bound to treat as war-caused. Nevertheless the Tribunal went on to say of the passage cited:-

"Now Mr Everard relied on that passage when seeking to argue that Mr Turner's hypothesis of a number of transient aggravations was the only reasonable one. We see it rather as going directly to the question as to whether the present incapacity, since the claim was made in 1984, can be said to be due to the disease aggravated by the fall in 1945."

The Tribunal was in error in making that connection and in doing so seems to have overlooked its own acceptance of the possibility of a direct causal relationship between the fall and the spondylolisthesis.

It went on to consider aspects of the evidence and came to the preferred conclusion that as propounded by the witness Turner, the applicant had "suffered some transient aggravations of a congenital and/or adolescent condition culminating in a severe trauma in 1973 sufficient to require surgical fusion", and that "Natural degenerative changes have since produced a gradual deterioration resulting in retirement from work". On the way to that conclusion the Tribunal made another inexplicable reference to Heaps case. It also posed the question of the kind of causal connection neccesary to show incapacity from war-caused damage by saying:-

"When it comes to considering the whole of the evidence since 1945, it is extremely difficult to isolate the fall and treat it alone as producing a continuing incapacity."

Now that suggests that the Tribunal was of the view that the applicant could not be said to have become incapacitated "from" his war-caused disease unless that disease or the incident causing it were the only cause of the incapacity. That approach, which was supported by the respondent, is untenable. It would be a narrow and artificial construction that would limit the liability of the Commonwealth under s.13 of the Act to the case in which the war-caused injury or disease is the only cause of incapacity. It is notorious that many, if not most, physical incapacities are traceable to more than one underlying cause. If the Tribunal's implied view is right, a veteran who limps because of a war injury will be disentitled where there is some other contributory cause such as arthritis.

Fortunately, however, the Tribunal's conclusion on incapacity does not rely on that proposition. The principal strand of its reasoning, stretched but not broken by its digression into Heaps' case and the sole cause principle, is clear. It is evident that the Tribunal was satisfied that the fall had no causal connection with the present incapacity. For, in addressing the question whether the fall was the sole cause of continuing incapacity, the Tribunal said:-

"The factors which militate against such a conclusion are many. The applicant can be forgiven for his failure to make further complaint in 1945, for not mentioning the injury or discharge in 1947, for being inconsistent as to whether he mentioned it to his football coach or physiotherapist in 1947 or 1948 or at all, and for forgetting it until questioned by Mr Bedi in 1973. We find it far more difficult to disregard the apparent enthusiasm and skill with which he managed to play football for 10 years, pursued his work as an electrician without any serious difficulty until 1973, played golf before his operation without apparent complaint, pursued, after his operation, a claim based on his knee without mention of his back, and finally the fact that he took no steps to seek a pension for that disability until almost 40 years after his fall."

And after another unprofitable reference to Heaps' case it went on:-

"In the present case once spondylolisthesis became symptomatic in 1945 the condition remained as one which was aggravated by war service and therefore war-caused. A quiescent condition was worsened and remained a potential threat to further incapacity. However, as we have said the problem of whether it produced the incapacity now complained of is more complex. There is no persuasive evidence that the trouble he experienced at football requiring him to wear a brace was occasioned by the fall rather than the mere effort of football itself. There is no persuasive evidence to satsify us that the pain he experienced after he gave up football was other than early degenerative changes. There is every reason to believe that it was the accident lifting the stove which required the surgical fusion in 1973. There is no persuasive evidence that it was either the spondylolisthesis or the fall which caused him to give up work and make the current claim. These considerations force us to the conclusion that we are not reasonably satisfied that he is or was in 1984 incapacitated by a war-caused disease."

The Tribunal then concluded that it preferred the view expressed by Mr Turner which has already been referred to, namely, that the applicant had suffered some transient aggravations of a condition which pre-dated his accident in 1945. That conclusion plainly embodies a rejection of the proposition that the 1945 fall has played any role at all in the current incapacity and it is on that basis that the Tribunal affirmed the decision under review.
The Applicant's Attack on the Tribunal's Decision
The applicant has proceeded on the basis that the Tribunal found the spondylolisthesis to have been war-caused and that such a finding could only have been based on direct causation arising under either sub-paras.9(i)(a) or (b). As the applicant puts it the Tribunal accepted as a reasonable hypothesis that the spondylolisthesis was directly caused by the fall. This correctly characterises the Tribunal's view given its acceptance of Bedi's theory.
The next step in the applicant's argument was to contend that the Tribunal erroneously entered upon a consideration of the question whether the applicant's present incapacity could be said to be due to "the disease aggravated by the fall". It is quite true to say that having found the hypothesis open that the disease was directly war-caused it was unnecessary for the Tribunal to enter upon questions of aggravation under sub-para.9(1)(e). For that provision merely extends the class of war-caused injury or disease to pre-existing injury or disease aggravated by war service. Having found it open to say that the injury or disease was directly war-caused it was unnecessary to invoke the more generous extended category.
The question the Tribunal posed was whether the present incapacity is due to the disease aggravated by the fall in 1945. On the finding it had already made, the proper question was a simple one - was the present incapacity due to the disease caused by the fall in 1945? Upon a close examination of the Tribunal's reasons however, what it did was to answer the question posed as though it were answering the correct question. That is to say, having posed the wrong question it has dealt with it as though answering the right one. The Tribunal embarked upon the exercise of deciding whether the fall was responsible for the continuing incapacity. In the end it found that there was "no persuasive evidence that it was either the spondylolisthesis or the fall which caused him to give up work and make the current claim".
The error made by the Tribunal in the way it posed the incapacity question was rectified by the way it answered, for the answer was an answer to the correct question.
The applicant also complained that the Tribunal erroneously applied a sole cause test to the question of incapacity when it said:-

"...it is extremely difficult to isolate the fall and treat it alone as producing a continuing incapacity."

As already observed however, the basis upon which the Tribunal made its finding on the cause of the applicant's incapacity rendered any sole causation principle implied in the passage complained of, irrelevant. I am satisfied therefore that the applicant has failed to show any error of law that could have affected the outcome of the case.
The Respondent's Attack on the Tribunal's Decision
The respondent also contends that the Tribunal was in error. In substance, it submits that it was required by the Act to adopt the following analysis:-

"(i) Was the veteran incapacitated at the relevant date?

(ii) If so, what condition produced that incapacity?

(iii) Was that condition war-caused within the meaning given to that expression in section 9?

(2) That in answering the third question identified above, the condition which must be examined is the condition which produces the incapacity, i.e. the condition as at the relevant date."

The Tribunal, it is said, erred in treating as the relevant "disease", the condition as it existed immediately following the 1945 fall. It considered the causal connection between the disease as it was and the present day incapacity. That causal link was, as it found, broken by the absence of symptoms at discharge, the football activities, the stove incident and the progress of the spondylolysis. I am not prepared to say that the Tribunal erred in this aspect of its reasoning. There may be more than one way of analysing the evidence consistently with the statute. It is only if the Tribunal has excluded or failed to consider an approach which might have resulted in a finding favourable to the applicant that it could be said to have erred. The approach for which the respondent contends was not advanced by the applicant. Indeed, whatever the result of failing to consider such an approach, it is not in the present case, open to invoke it on appeal and the respondent does so on the basis that it is the only correct approach. In my opinion the respondent has likewise failed to disclose any operative error of law. For these reasons the appeal should be dismissed.

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Citations

Conway, J.F. v Repatriation Commission [1988] FCA 634

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McDonald v Director-General of Social Security [1984] FCA 59

[1988] FCA 634

28 OCTOBER 1988