DAVID ARMSTRONG and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2011] AATA 841

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 841

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/1359

VETERAN’S APPEALS DIVISION		)
Re		DAVID ARMSTRONG

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Dr K S Levy RFD, Senior Member  

Date25 November 2011

Place  Brisbane

Decision

1.        The Confidentiality order dated 3 August 2011 over a witness statement is now lifted to the extent of the content which is referred to in this decision, but the name of the witness remains confidential.

 2.       The decision under review is affirmed.

Senior Member 

CATCHWORDS

VETERANS’ AFFAIRS – Compensation for injury – Safety, Rehabilitation and Compensation Act 1988 (Cth) – Former service with Royal Australian Navy – Fracture to left femur and deep vein thrombosis from motorbike accident – Injury did not arise out of defence service – Injury not in the course of defence service – Standard of proof not met – No entitlement to compensation – Decision under review affirmed

Evidence Act 1995 (Cth) s 140

Safety, Rehabilitation and Compensation Act 1998 (Cth) s 5A, 6, 14, 24

Briginshaw v Briginshaw (1938) 60 CLR 336

Canute v Comcare (2006) 226 CLR 535

Jones v Dunkel (1959) 101 CLR 298

Mahony v J. Kruschich (Demolition) Pty Ltd (1985) 156 CLR 522

Military Rehabilitation and Compensation Commission v Roberts (2007) 93 ALD 554

Re Mulligan and Comcare (1995) 36 ALD 699

Roncevich v Repatriation Commission (2005) 222 CLR 115

The Commonwealth v Wright (1956) 96 CLR 536

REASONS FOR DECISION

25 November 2011 Senior Member Dr K S Levy RFD

Dr K S Levy RFD, Senior Member

INTRODUCTION

1.      David Armstrong is an applicant for compensation for an injury received in a motor vehicle accident whilst he was a pedestrian in China. The claim relates to a “fractured femur, fracture of the femoral head of the femur (hip) and deep vein thrombosis”. The applicant claimed that the condition is a sequela to a previously accepted condition of his defence service, a left knee and left hip condition.

2.      The applicant served in the Royal Australian Navy (RAN) from March 1998 to November 2003. He has had numerous previous claims, many of which have been accepted as being related to his defence service and for which he has received compensation and/or support for medical treatment. These include:

(a)an “aggravation of right acromio-clavicular joint excision and small supraspinatus tear” (T36);

(b)“musculoligamentous strains of the lumbar spine” (T36);

(c)left trochanteric bursitis and aggravation of left hip osteoarthritis (T36);

(d)“major depressive disorder” (T36);

(e)an “aggravation of a pre-existing left rotator cuff calcification and impingement condition due to crutches use” - terminated as at 16 March 2007 (T35);

(f)“right and left wrist” (upper limb) conditions;

(g)an “aggravation of right hip osteoarthritis”;

(h)“musculoligamentous strains of the thoracic spine”;

(i)“bilateral archilles tendonitis” and “bilateral plantar fasciitis” – accepted         16 October 2007 (see T37);

(j)“chronic left calf strain”; and

(k)“opioid dependence”.

3.      The claim was denied on 31 August 2010. On review, the original decision was affirmed on 5 April 2011. He has now applied for review to this Tribunal.

EVIDENCE

The Applicant

4.      The present claim refers to an accident in which he, as a pedestrian, was involved with a motorbike while walking across a street on 3 July 2010 in Jinan, Shandong, People’s Republic of China. He provided a statement and some supporting evidence that there had been such an accident and that he was taken to hospital that day and medical staff at the hospital identified a fracture of the femur of the left leg. Mr Armstrong’s evidence states that the doctors in China could not fully deal with the damage to his left leg and that he was then prepared for transport to Australia for further medical attention. It appears that he then left China for Hong Kong and ultimately Cairns Base Hospital in Australia, departing China on 12 July 2010. On 14 July 2010, he had surgery on his left leg and there were post surgery complications from deep vein thrombosis.

5.      On 31 August 2010, the respondent denied liability for the fractured femur and deep vein thrombosis which occurred secondary to the accepted condition of the left knee and the accepted left hip condition. On the same day, Mr Armstrong forwarded correspondence and amplified details of the claim. These details revealed that:

(a)he was going for his normal morning exercise walk at 6.40am;

(b)he was walking across the road on a crossing when a motorcycle came from the wrong direction and struck him on the inside part of his left leg;

(c)he said that he was left with a very large hole in his left thigh muscle and his left leg was broken directly above the prosthesis which had been inserted during surgery of a previously accepted condition;

(d)after hitting the road, there was a fracture to the top part of his hip; and

(e)a witness allegedly called his wife, who is a doctor, and she attended the scene very quickly. She then arranged for him to be conveyed to hospital after which, Mr Armstrong says, he was taken to the operating theatre twice – firstly to stitch up his leg; and on a second occasion to prepare him to travel to Australia “… as the Chinese could not fix the leg at all”.

6.      This correspondence was followed by further statements on 2 September 2010 and 3 September 2010. On 16 September 2010, Mr Armstrong requested reconsideration of the decision of 31 August 2010.

7.      Since that time there has been a large volume of submissions made by the applicant. The most significant are set out below, all of which as a general rule repeat information previously given, although there are some attempts by Mr Armstrong to further clarify the factual position.

8.      In his statement of 27 May 2011, he stated that whilst in the middle of the crossing he caught sight of “an object” (the motorbike) approaching from his right-hand side and that:

(a)the motorbike at that time was 10 to 15 metres away from him;

(b)there were many motorcycles and pushbikes in the area around him and he tried to manoeuvre himself to avoid the oncoming threat;

(c)he believed at that time that the motorcycle was doing approximately 40 to 50 kilometres per hour (the speed limit in built-up areas in China is 40kph); and

(d)after being hit he was spun around to his left hand side, knocking the rider off his bike, which then hit two other pedestrians.

9.      Mr Armstrong provided a statement dated 20 July 2011 from a witness. That statement was subject to a confidentiality order made prior to the hearing. I have lifted that order to the extent of the material quoted in this decision. In the statement of this witness, almost one year after the accident, the witness stated as follows:

(a)It was 6:30am when she (the witness) was crossing the road.

(b)She saw a man on a motorcycle 20 metres away and a “foreigner” in front of him.

(c)She moved to her right to avoid getting hit.

(d)The back wheel of the motorbike skidded for half a metre before it hit “the foreigner”.

(e)The bike was an electric bike travelling at “about 25 kilometres an hour when it hit the foreigner”.

(f)The rider asked her not to ring the police.

(g)The police and public security bureau in China would be angry if a foreigner was involved in an accident.

10.     A further statement was e-mailed by Mr Armstrong on 26 July 2011. There, Mr Armstrong stated as follows:

(a)From his peripheral vision to the “left-hand side”, he noticed a motorcycle approaching against the flow of traffic inside the bike lane of the roadway.

(b)He noticed the bike rider slowed to a near stop and then proceeded to cross the road in the middle of the crossing area.

(c)He now believed the distance was 15 to 20 metres directly in front of him.

(d)The speed of the motorbike was approximately 30 kilometres per hour (he states his original statement was made before inspecting and fully recalling the events of the day).

(e)There were people in front of him and around him on both sides.

(f)The rider sounded his horn, a person in front of him moved to the left hand side of the oncoming motorcycle and Mr Armstrong then had a clear view of the motorcycle.

(g)The motorcycle rider then saw him, sounded his horn which attracted the attention of other pedestrians.

(h)He now believed the bike was doing 18 to 20 kilometres per hour before it hit him.

(i)After being hit and while lying on the ground, he noticed the bike had hit another lady on his left hand side and also another person behind her.

(j)He stated that he now remembered the rider of the bike speaking with the lady that was knocked to the ground and some other people in Chinese.

(k)Mr Armstrong stated the rider then got on his bike and rode off.

(l)He stated “this is now a more in depth re-enactment of the events that happened on 3 July 2010 and with further information obtained by my wife and by one of the brave witnesses who has come forward at great risk”.

Medical Evidence

11.     There is considerable documentary evidence in relation to Mr Armstrong’s medical conditions. Of relevance to the present application is a medical assessment dated 26 November 2004 by Dr Phillip Vecchio. Dr Vecchio refers to Mr Armstrong having some previous injuries prior to joining the Navy and experiencing difficulty from the third day of his service in recruit training when his left foot was caught in physical training, twisting his left knee. It is notable that Mr Armstrong joined the Navy in March 1998 and he was having left knee surgery in May 1998, some two months later. The surgeon reported “significant chondral damage to the patellofemoral joint medial cartilage with the presence of osteophytes and loose bodies. The latter indicates that substantial changes of osteoarthritis had progressed months to years prior to the injury of March 1998” (see folio 97). Dr Vecchio noted (at folio 98) that since that time  Mr Armstrong had:

…submitted to at least six further arthroscopic examinations, the last being in late October 2004

…

Although not stated in the documentation, Mr Armstrong claims the arthroscopy performed in June 2000 post-dated a physical training run which exacerbated his left knee osteoarthritis.

…

The left knee problem was further exacerbated in December 2000 when Mr Armstrong struck a kangaroo on the Nullarbor Plain whilst riding a motor bike on leave. He dislocated the left patella and this was subjected to specific surgery by Dr Annear on 19 January 2000.

12.     There is some clear evidence of osteoarthritic difficulties of Mr Armstrong’s left knee, some of which are service related and some of which are not. Dr Vecchio states (at folio 99):

… The major inciting trauma for this condition was the motor vehicle accident of 1986, with the compound fracture of the left tibial plateau, which would have a 100% incidence of eventual osteoarthritis. Additionally, Mr Armstrong has also sustained trauma apparently outside his military employment including the motorbike accident of late 2000 as well as the horse fall with sustained forced flexion in 1987 which would have also contributed to the left knee degeneration. The military contribution to his left knee osteoarthritis would be small but if would appear to be in the order of approximately 10%.

…

In my medical opinion, 90% of Mr Armstrong’s left knee osteoarthritis is due to non-military activity

...

Psychological Evidence

13.     There is considerable evidence recorded in the T-Documents of reports made during Mr Armstrong’s naval service. In particular, there is extensive adverse reporting of his psychological condition and persistent claims which resulted in him being identified as being unsuitable for further naval service. Part of those records indicates a view that Mr Armstrong may not have been fully truthful about his pre-enlistment conditions.

ISSUES

14.     Part of the evidence in this matter relates to the claim for a fracture of the femoral head of the left femur. This seems to be attributed by the applicant to the accident as he was knocked to the road. Later it appears to be attributed to airline travel, following the accident, en route to the Cairns Base Hospital.

15.     The respondent now says that aspect of the claim is subject to a further inquiry and consideration. Mr Clark submitted that that component of the decision under review should await the outcome of that further enquiry being conducted by the respondent authority as a separate claim. I accept that submission.

16.     The remaining issues are as follows:

(1)Did the applicant suffer injuries in an accident on 3 July 2010 in the People’s Republic of China?

(2)If the answer to question (1) is yes, were these injuries sustained in the course of military service?; and

(3)If the answer to question (2) is no, did these injuries arise as a consequence of injuries previously accepted as compensable? 

CONSIDERATION

Relevant Legislation

17.     The issues in this case are governed by the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act). Section 14 of the Act relevantly states that Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee, if the injury results in incapacity for work or impairment (s 14(1)). There are two exceptions to that liability – compensation is not payable where an injury is self-inflicted (s 14(2)); or where there has been an injury caused by serious or wilful misconduct of the employee but is not intentionally self-inflicted (unless it results in death, or serious and permanent impairment) (s 14(3)).

18.     An ‘injury’ is defined in s 5A(1) as follows:

In this Act:

injury means:

(a)       a disease suffered by an employee; or

(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or

(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;

but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.

19.     Section 6(1) of the Act provides some particularity of circumstances which might be regarded as having “arisen out of, or in the course of employment”. The examples indicate that “arising out of” involves a causal relationship with the employee’s employment.

The Femoral Head of the Left Femur

20.     As previously stated, as a consequence of the circumstances surrounding that condition having been clarified by the applicant, the respondent is now reconsidering this condition as a separate claim. I find there is new evidence to consider and in the light of the extensive medical history and claims history, that this aspect of the claim should await the respondent’s reconsideration.

The Confidentiality Order

21. As part of the interlocutory process, a confidentiality order was made on 3 August 2011 over a witness statement dated 20 July 2011. Having heard the applicant and considered all of his evidence, I now vary that order to lift the confidentiality order to the extent of information quoted in this decision. The name of the witness remains subject to the order of 3 August 2011 made under s 35(2)(c) of the Administrative Appeals Tribunal Act 1975.

ISSUES

22.     The issues remaining for determination are the fracture of the left femur and deep vein thrombosis. My findings are as set out below.

Issue (1) – Did the applicant suffer injuries in an accident on 3 July 2010 in the People’s Republic of China?

23.     From the available evidence, the applicant has provided some information which would indicate an injury occurred to his left leg consistent with his claim. There are varying accounts by him. Some of those accounts have added particularity with subsequent statements but there is still some lack of clarity or inconsistency in some respects. That may be due to him being injured and either not knowing or having a clear recollection of all events. There are also some parts of the applicant’s statements that might raise some doubts as to the veracity of all of their content. This is largely because, as the respondent submits, the evidence is insufficient to satisfy the burden of proof. The lack of precision and other shortcomings in the evidence are due to the fact that the applicant has been the source of all of the evidence. Apart from medical reports, there are no independent statements where a name and address of the witness is available, nor were any such witnesses made available for cross-examination at the hearing. Heavy relevance is placed on emotive statements that witnesses in China would be in fear of police and authorities there, with no attempt to provide evidence to support those contentions. I will return to this evidence in Issue (3).

24.     However, there is evidence of him being attended to at the Qilu Hospital in China and the medical reports are somewhat consistent him suffering the injuries which he claims. I therefore find Mr Armstrong did suffer injuries to his left leg and knee in a motor vehicle accident on the 3 July 2010 in Jinan, Shandong, People’s Republic of China. On that basis therefore, I find that Issue (1) is satisfied.

Issue (2) – If the answer to question (1) is yes, did the applicant’s injuries arise in the course of military service?

25.     As Mr Armstrong was discharged from the RAN in 2003, the answer to this question is clearly ‘no’. Both Mr Armstrong and the respondent accept that this is the case. I find accordingly.

Issue (3) – If the answer to question (2) is no, did these injuries arise out of or as a consequence of injuries which have previously been accepted as being compensable?

26.     The applicant argues that he has accepted conditions related to his left hip, right hip and left knee and relies on the following:

(a)He argues a report provided by Dr Sun, an expert orthopaedic surgeon who has a western degree in medicine, supports his argument that if it was not for the prosthesis to his knee he would not have suffered to the degree that he has, particularly that the fracture would not have occurred.

(b)He says he was following instructions given by the Townsville office of a Commonwealth agency and that if he had not gone walking to keep his limb flexible, they would have stopped paying him. He says he has “lived up to his bargain with the Townsville office”.

(c)He says the deep vein thrombosis did not occur in China; rather, it occurred in the Cairns Base Hospital.

(d)He refers to the issue made by the respondent that he had a previous injury to the knee when he was in a motorbike accident on the Nullarbor Plain, and while on leave from the Defence Force, in 2000. Mr Armstrong says Defence was responsible to pay for that injury.

(e)Mr Armstrong claims suggestions of him having pre-existing injuries prior to joining the RAN should not be taken into account as medical practitioner Dr Thomas certified him as being fit for RAN service.

(f)Mr Armstrong argues that the injuries which resulted from the accident are sequelae of the previously existing approved conditions.

27.     The respondent also argues two main propositions:

(a)The chain of causation to establish liability of the Commonwealth was broken when the motorbike accident occurred; and

(b)The standard of proof cannot be satisfied. This is manifested in the respondent’s argument that there is insufficient evidence to justify all of the claims made and factual circumstances alleged by the applicant. The respondent says it has an obligation to verify information in accordance with its duty to enquire into the facts, so that the Tribunal may make the correct or preferable decision. The respondent says all of the evidence about witnesses has come from Mr Armstrong with no independent corroboration.

Are the injuries claimed “sequelae”? Is the chain of causation broken?

28.     In relation to the respondent’s ‘chain of causation’ argument, Mr Armstrong claimed that he should succeed in his claim as these injuries are “sequela” of the previously accepted conditions [Canute v Comcare (2006) 226 CLR 535].

29.     Mr Clark, for the respondent, referred me to the determination under review, which refers to the Department’s policy in relation to the meaning of “sequela” (T50, folio 424). There it states that the term “sequela” is not in the relevant legislation and that the Department would regard a sequela as being a medical condition which is a consequence of a previously accepted injury or disease and which is other than the simple worsening of the same condition. That reasoning shows sequelae as being usually associated with diseases and that they are a natural progression of existing conditions. A “sequela” is differentiated from an “aggravation”, the latter being something which is an exacerbation of a pre-existing condition but which is not the natural progression of a condition.

30.     The term “sequela” is defined in Butterworth’s Medical Dictionary (2^nd edition) as “a disease or morbid condition resulting from or dependent upon another disease”. In Blakiston’s Gould Medical Dictionary (4^th edition) the term “sequela” means “1. An abnormal condition following a disease upon which it is directly or indirectly dependent. 2. A complication of a disease”. The Shorter Oxford English Dictionary (Volume II) defines “sequela” as “a morbid affection occurring as a result of a previous disease”. These authoritative definitions (of which judicial notice would ordinarily be taken) point to a “sequela” being a disease which develops as a consequential effect of a previous disease. While an “injury” includes a “disease” under s 5A of the Act, the term “disease” is separately defined in s 5B. Mr Armstrong’s conditions are physical injuries. Unless a disease could be said to have developed as a consequence of his physical injuries, I do not see how a subsequent injury upon a previous injury can fit within the definition of “sequela” as defined.

31.     Turning now to the High Court of Australia decision in Canute v Comcare (2006) 226 CLR 535, it is clear that the High Court has stated that the Act refers to “an injury” and this refers also to where there is “a consequential or secondary injury” (at [34]). That decision requires when considering compensation under s 24 of the Act for permanent impairment, where there are multiple injuries each must be assessed as a separate injury. This means of course there must be an assessment firstly about whether in fact, the injury (whether a sequela or a subsequent injury), is “an injury” for the purposes of s 5A the Act. Then, any such assessment must establish that each separate injury also satisfies the incremental threshold of 10% degree of impairment.

32.     An alternative argument was put by the respondent. Mr Clark says further that the chain of events or causation of the accepted condition has been broken by the motorbike accident (the concept of novus actus interveniens). This is a concept familiar to the criminal law and the law of torts where an intervening act can break the chain of causation and therefore the obligation or liability of a party. In other words, he argues that the motorbike accident in China breaks the nexus between the liability of the respondent for the left knee injury resulting from RAN service and liability for the recent left knee injury [eg see Mahony v J. Kruschich (Demolition) Pty Ltd (1985) 156 CLR 522].

33.     It seems to me that there certainly has been an intervening event such that the concept of novus actus interveniens may be an appropriate explanation for the lack of connection between Mr Armstrong’s recent left knee injury and his defence service.  However, the fact that there are statutory provisions requiring a connection for the injury to be “arising out of or in the course of” some aspect of defence service, that seems to be a more appropriate assessment. In cases of those who are currently serving the proximity or the nexus of an act or event or result to defence service is more evident [see Roncevich v Repatriation Commission (2005) 222 CLR 115]. But where a person is not on duty (or a former employee) as is the case here, an injury cannot occur “in the course of” defence service. The question in these circumstances whether an injury could be said to be “arising out of” defence service. There must be a substantive or “real” connection between the injury or incident to some former aspect of service or treatment that he may have received whilst in the defence service [see The Commonwealth v Wright (1956) 96 CLR 536].

34.     That case is also an authority in relation to the applicant’s assertion about the motorbike accident on the Nullarbor Plain while on leave. While I do not have to make a finding about that, it points to that injury not being a liability of the Commonwealth.

35.     The evidence is uncorroborated apart from a report from a doctor in a Chinese hospital (obtained through the applicant’s wife, who is a Chinese doctor). This seems to me to lack sufficient force for me to be satisfied that there is any connection, or at least a sufficient connection, to link these injuries to a consequential effect of defence service. In a complementary way this question is also reconsidered under the standard of proof test below.

36.     Here, I have found that the injury is not, in medical terms, a sequela. Even if it was, the requirement of Canute v Comcare (2006) 226 CLR 535 requires that each injury must be “injury” for the purposes of the Act. As I find under the “chain of causation” argument above, the injuries claimed do not “arise out of” or have a causal connection with defence service. The nexus is not established. Even if both of those were established (which they are not), the 10% threshold is not satisfied as there is no evidence of such an assessment being conducted.

The Standard of Proof

37.     The standard of proof to which the Tribunal must be satisfied is that of the balance of probabilities [s 140 Evidence Act 1995 (Cth)]. The respondent says that it has tried to verify information provided by the applicant but has not been able to determine any objective verification or corroboration because of the way the applicant has conducted his case. Section 6(1) of the Act refers to the circumstances where the Tribunal might be satisfied that an “injury” which has occurred, “arose out of” or in the course of employment. The respondent referred me to s 6(1)(a) which refers to an injury which occurs as a result of “an act of violence”. There is adequate authority that that cannot apply here [see Re Mulligan and Comcare (1995) 36 ALD 699]. However, consideration of that section does provide a basis for further considering how one might approach circumstances such as in this case. In Military Rehabilitation and Compensation Commission v Roberts (2007) 93 ALD 554, it was said at [60] – [61] that the language of the Act is designed to be beneficial to an applicant but:

… A fair meaning will, however, not be one arrived at by straining the language or exceeding its reach, nor will it be one that results in absurdity ex facie or anomalous result, clearly shown: ESSO Australia Resources v Commissioner of Taxation (1998) 86 FCR 511.

A “common sense or practical” approach … may be necessary.

38.     In determining whether the standard of proof is met, a common sense approach to the evidence is necessary. The test that should be applied is that set out by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336. On that authority, a decision maker must be satisfied not only on the evidence but must actually be convinced of the efficacy of that evidence.

39.     I have great difficulty in being satisfied on the balance of probabilities. Firstly, there are a number of inconsistencies, or an apparent lack of frankness, on the part of the applicant. In particular, the further particulars he provided, only after 12 months from the date of the accident, are not sufficiently specific to assist the Tribunal in being satisfied as to the factual evidence. The inconsistencies or evidence unexplained (or insufficiently explained) are:

(a)Mr Armstrong asked the Tribunal to rely on Dr Sun’s report. However, he said “the Chinese could not fix the leg at all” and that seems to have been decided at the initial visit to the hospital. No further clarification was provided to this significant but contradictory evidence.

(b)The alleged instruction from the Townsville office is mentioned but not corroborated. This is unsatisfactory from an evidentiary viewpoint.

(c)The statement of the witness on 20 July 2011 was received over a year after the accident, yet Mr Armstrong’s wife (a Chinese doctor who, Mr Armstrong asserted, can legally obtain information from hospital records) must have had access to the relevant information from the time of the accident. The delay is unexplained.

(d)In addition, this witness spoke to the rider of the bike who was the alleged offender, but no reference is made as to their identity.

(e)The statement of the applicant of 26 July 2011 refers to the motorbike approaching from the left-hand side (see paragraph 10 above). This seems contradictory to the applicant’s other evidence where he refers to the motorbike approaching from the right-hand side (see paragraph 8 above) and no further mention or explanation is given.

(f)The statement of the applicant of 26 July 2011 contains detail of the rider sounding his horn prior to the accident. This was not previously mentioned. Also, it is now mentioned that there were a number of other people around him and two others were injured. This was not previously mentioned, nor was it explained why they were not able to be traced.

(g)There are varying accounts of speed and distance of the rider. While estimates of speed and distance may not be precise and a victim may not have a clear recollection of those matters, the account has changed more than once. In addition, Mr Clark submitted that it “defies belief” that the applicant could have done all he claims in the time available, based on the velocity and time prior to impact.

40.     Not only are there apparent inconsistencies or unexplained evidence, no attempt has been made to call Dr Sun or the witness or any other witness who may have assisted Mr Armstrong’s case. Based on the whole of the evidence presented I find an adverse inference should be drawn about the applicant and his evidence, given that he might have called telephone evidence in support of his case [Jones v Dunkel (1959) 101 CLR 298].

41.     In addition, the medical evidence provided by Dr Vecchio shows that only ten percent of the injuries of the applicant were attributable to service conditions (see folios 97 and 99). Also, Dr Andrew Graham, who performed surgery, shows that he reluctantly had performed knee surgery on Mr Armstrong and that he had been treating him since 1994, well before the commencement of his RAN service. His report also shows that Mr Armstrong had asked him to make representations on behalf of Mr Armstrong to have his surgery recognised for rehabilitation purposes (even though it was obviously performed after his service ceased). But that is not all of the evidence. There are also considerable service records showing that there was some psychological evidence adverse to Mr Armstrong. There is reference there that some of the conditions which he has claimed (and have been recognised) may have been done so fraudulently as part of his enlistment process. His credibility is therefore weakened as a result. It is weakened not only because of that pre-defence service evidence but because of the entirety of the evidence.

42.     In the circumstances I find the claim is not satisfied as the injury:

(a)is not a sequela of previously accepted injuries;

(b)is not an injury “arising out of” Mr Armstrong’s previous defence service and therefore fails to satisfy the definition of an “injury” under s 5A(1) of the Act;

(c)is not a sequela and is not an injury “arising out of” his                 defence service and therefore the consequential claim for deep vein thrombosis must equally be regarded as not satisfying the required definitions; and

(d)the weight of evidence presented is not sufficient to meet the standard of proof required.

43.     I determine that :

(a)The Confidentiality order dated 3 August 2011 over a witness statement is now lifted to the extent of the content of that statement which is referred to in this decision, but the name of the witness remains confidential.

(b)The decision under review is affirmed.

I certify that the 43 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member

Signed: ..............................[Sgd]..................................................
  Associate

Date/s of Hearing  22 September 2011
Date of Decision  25 November 2011
Applicant was self-represented
Counsel for the Respondent     Mr Charles Clark
Solicitor for the Respondent     Mr Peter Crethary