Denhollander and Secretary, Department of Defence (Freedom of information)
[2018] AATA 1345
•25 May 2018
Denhollander and Secretary, Department of Defence (Freedom of information) [2018] AATA 1345 (25 May 2018)
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2015/3464
FREEDOM OF INFORMATION DIVISION )Re: Arthur Denhollander
Applicant
And: Secretary, Department of Defence
RespondentCORRIGENDUM TO DECISION NO [2018] AATA 1345
TRIBUNAL: Deputy President P Britten-Jones
DATE: 16 July 2018
PLACE: Adelaide
The Tribunal directs the Registrar, pursuant to section 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by amending the details in the Certification on page 29 by:
(a)Deleting the name “Ms M Scanlon”; and
(b)Inserting the name “Mr J Davidson”
so that the decision reads as follows”
“Counsel for the Respondent Mr J Davidson”.
………………[Sgd]………………
P BRITTEN-JONES
(Deputy President)
Division:FREEDOM OF INFORMATION DIVISION
File Number: 2015/3464
Re:Arthur Denhollander
APPLICANT
Secretary, Department of DefenceAnd
RESPONDENT
DECISION
Tribunal:Senior Member Britten-Jones
Date:25 May 2018
Place:Adelaide
The Tribunal affirms the decision under review.
..................[Sgd].............................................
Senior Member Britten-Jones
CATCHWORDS
FREEDOM OF INFORMATION – On current application to what extent could Tribunal inform itself about relevant findings of fact in previous 2002 decision – Applicant seeking to rely upon further information – Applicant seeking to reopen proceedings before AAT for rehearing of his application – Application to amend the same AF Med 1 form, the subject of previous applications – Open to Tribunal to regard previous decision as determinative of an issue and decide that an issue should not be reopened – Tribunal has discretion in those circumstances to take such a course – Requirements of procedural fairness – Opportunity to re-agitate findings of fact – Decision affirmed.
LEGISLATION
Freedom of Information Act 1982, Pt 5, ss 48, 50, 58AA
Administrative Appeals Tribunal Act 1975, ss 2A, 33, 39
CASES
Denhollander and Department of Defence [2002] AATA 866
Re Rana and Military Rehabilitation and Compensation Commissioner [2008] AATA 558
Rana v Repatriation Commission [2011] FCAFC 80
Re Shaheed and Tax Practitioner’s Board [2011] AATA 938
Re Quinn and Australian Postal Corporation (1992) 15 AAR 519
Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20
SECONDARY MATERIALS
Australian Book of Reference 1991 – Naval Medical and Hospital Instructions, Chapters 2, 3 and 7
REASONS FOR DECISION
Senior Member Britten-Jones
25 May 2018
The applicant enlisted in the Royal Australian Navy (RAN) on 9 March 1968 for a nine‑year term. He completed three months of basic training and underwent a cook’s course, which he completed on 15 November 1969. He was then posted to the Main Galley HMAS Cerberus, an RAN base situated onshore.
The issue in this case arises from the applicant’s discharge from the RAN on 16 April 1971 and a medical examination on 20 April 1971 as recorded on a form known as an “AF Med 1 Form” (the AF Med 1 form).
The applicant seeks to amend the AF Med 1 form that was completed by the medical practitioner who examined him on 20 April 1971.
The application to amend was brought on 12 December 2014 under Part 5 of the Freedom of Information Act 1982 (the FOI Act). On 9 January 2015, an authorised delegate of the respondent made a decision refusing to amend the AF Med 1 form as requested. The applicant sought an internal review of that decision, which was then affirmed on 24 February 2015.
The 2002 Denhollander Decision
An earlier application was brought by the applicant in 2000 to amend the AF Med 1 form. A decision to refuse that earlier application was subsequently affirmed by Deputy President Forgie in Denhollander and Department of Defence [2002] AATA 866 (the 2002 Denhollander decision). The effect of that decision was to refuse to amend the AF Med 1 form.
An issue arose on this application as to the extent that I could inform myself about relevant facts by reference to findings of fact made by Deputy President Forgie in the 2002 Denhollander decision.
The respondent submitted that I should rely upon the findings made in the 2002 Denhollander decision. The applicant sought to rely upon the further information that was not before Deputy President Forgie and “sought to reopen the proceedings before the AAT for a rehearing of [his] matter”.[1]
[1] The Applicant’s Statement of Facts, Issues and Contentions, dated 14 March 2017 [75].
The Evidence before Deputy President Forgie in the 2002 Denhollander Decision
This is a case where a previous application has been made to amend the same document. There was a substantive hearing before Deputy President Forgie in the 2002 Denhollander decision during which the Tribunal heard evidence from the applicant about his medical condition as at the date of his discharge on 16 April 1971, and about the circumstances in which the AF Med 1 form was completed. Deputy President Forgie heard evidence from Commander Alison McLaren, a Medical Officer with the RAN. Chapters 2, 3 and 7 of the Australian Book of Reference 1991 – Naval Medical and Hospital Instructions (ABR 1991) were tendered. Further, Deputy President Forgie considered the clinical notes from the applicant’s service medical records and numerous medical reports. Oral testimony was given by Mr George Potter (an Orthopaedic Surgeon), Dr Anderson (a RAN Medical Officer) and Dr Luke (a Senior Medical Officer of the Canberra Medical Unit). Deputy President Forgie considered the relevant legislation under Pt 5 of the FOI Act and made findings based on the evidence before her.
The Evidence before the Tribunal on this Application
The applicant gave oral testimony at the hearing, but otherwise relied upon the documentation provided to the Tribunal, which differed in no material way to the documentation before Deputy President Forgie in the 2002 Denhollander decision. The respondent tendered an affidavit from Commodore Rushbrook who also gave oral evidence and was cross examined.
The applicant’s oral testimony was in no way restricted as a result of the 2002 Denhollander decision. In effect, there was a complete rehearing of the matter. The applicant’s testimony with respect to his medical condition in 1969 and 1970 was made largely by reference to the clinical notes provided to the Tribunal for that period. This is not surprising given it was so long ago. Those clinical notes were before Deputy President Forgie in the 2002 Denhollander decision. The applicant also gave evidence about the medical examination on 20 April 1971, a date he remembered because it was his birthday. The applicant gave further evidence about subsequent jobs and medical problems, which were the subject of numerous reports and which were before the Tribunal. I do not consider that there was anything in the applicant’s oral testimony that it would impact upon the findings made in the 2002 Denhollander decision. Those findings should not be altered as a result of the further evidence given at the hearing.
The documents considered to be fresh evidence are listed by the applicant in paragraph 75 of his Statement of Facts, Issues and Contentions. My view is that these documents do not impact upon the findings or the decision made by Deputy President Forgie and are not material to the decision to be made on the current application.
(a)The first document records orders made by the Tribunal relating to a separate application for compensation under the Safety, Rehabilitation and Compensation Act 1988. They have no probative value in these proceedings because they do not relate to the applicant’s health as at 20 April 1971 and, therefore, do not impact upon the decision of Deputy President Forgie.
(b)The second document is a report of Dr Michael Alp (Gastroenterologist) dated 6 December 1982, which contains no material relevant to the issue of the applicant’s health in 1971.
(c)The third, fourth, fifth and sixth documents are extracts from Regulations and Standards most of which were not relied upon by the applicant in these proceedings, and in any event, do not impact upon the decision of Deputy President Forgie.
(d)The seventh document is a record of conversation between members from the Australian Government Solicitor and the Department of Defence dated 8 February 2001. This conversation has no relevance to the issues in dispute between the parties and does not impact upon the decision of Deputy President Forgie.
(e)The eighth, ninth and tenth documents are medical reports from 2008 and 2010, which do not provide any new information about the applicant’s medical condition as at 20 April 1971, and do not impact upon the findings of Deputy President Forgie.
Conclusion to Rely on Findings made in the 2002 Denhollander Decision
The facts and issues arising in the 2002 Denhollander decision and those arising in this case are largely the same. In late 2015 the respondent had made an interlocutory application seeking to limit the issues in dispute so as to avoid relitigation of those issues determined by Deputy President Forgie. No decision was made on that application and the matter was simply listed for hearing because it was considered more expedient to do so. It will be apparent from these reasons that it would have been preferable to deal with this application finally at the interlocutory stage.
Section 33 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) provides for some flexibility with respect to the procedure to be adopted by the Tribunal in a case like this. Section 33(1)(c) provides that the Tribunal may inform itself on any matter in such manner as it thinks appropriate. In determining what is appropriate, the Tribunal will give consideration to the Tribunal’s objective of providing a mechanism of review that is, inter alia, fair, just, economical, informal and quick; and that promotes public trust and confidence in the decision‑making of the Tribunal.[2]
[2] Administrative Appeals Tribunal Act 1975, s 2A.
Having considered all the evidence before Deputy President Forgie in the 2002 Denhollander decision and the fresh evidence before the Tribunal on this application, I see no reason to depart from the findings or the decision made by Deputy President Forgie in the 2002 Denhollander decision.
I conclude that the ‘fresh’ evidence tendered by the applicant and given orally by the applicant does not impact upon the findings made in the 2002 Denhollander decision and does not affect the decision made in that case.
The approach I have taken with respect to relying on the findings made by Deputy President Forgie in the 2002 Denhollander decision is supported by the following authorities.
In Re Rana and Military Rehabilitation and Compensation Commissioner [2008] AATA 558, the Tribunal:
(a)determined not to revisit findings made by an earlier constituted Tribunal; and
(b)determined instead to inform itself of the relevant matters by reference to the findings of fact made by that earlier constituted Tribunal.
The Full Federal Court on appeal in Rana v Repatriation Commission [2011] FCAFC 80 approved this reasoning (subject to certain qualifications) stating at [27] that “There must be a limit to the ability of a disappointed party repeatedly to revisit findings once made”.
This approach was also confirmed in Re Shaheed and Tax Practitioner’s Board [2011] AATA 938, and the observation is consistent with that made by the Tribunal in Re Quinn and Australian Postal Corporation (1992) 15 AAR 519 (cited with apparent approval by the Full Court of the Federal Court in Morales v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 374 at 390 (per Black CJ, Burchett and Tamberlin JJ), where O’Connor J and Member Barbour observed at [526]:
It would seem inappropriate and unreasonable to us for there to be relitigation without reason of the same issues before the Tribunal … The Tribunal should not generally allow relitigation of issues already decided and previous Tribunal decisions should be regarded as establishing the matters actually decided and of the grounds for the determination.
Similarly, in Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20 at [49], Bennett J observed:
Generally speaking, there should not be relitigation without reason of the same issues before the Tribunal where the relitigation is of the same facts and issues already decided. In those circumstances, previous Tribunal decisions would generally be regarded as establishing the matters actually decided and the grounds for determination. It is open to a subsequent Tribunal to regard a previous decision as determinative of an issue and to decide that an issue should not be reopened. The Tribunal has a discretion in those circumstances to take such a course.
That approach is also consistent with the requirement, in s 33(1)(b) of the AAT Act, that proceedings before the Tribunal “… shall be conducted with … as much expedition…as the requirements of this Act and of every other relevant enactment and a proper consideration of the matters before the Tribunal permit”.
This general approach is not absolute. It is subject to the requirements of procedural fairness and the AAT Act, particularly the requirement in s 39 which imposes upon the Tribunal the obligation to ensure that every party is given a reasonable opportunity to present his or her case.
As the Full Court observed in Rana v Repatriation Commission [2011] FCAFC 80 at [28], that obligation may, in certain circumstances, require that a party be given the opportunity to re-agitate findings of fact with a view to persuading a subsequent Tribunal to reach a finding of fact contrary to the one previously made. Although making clear that it was not exhaustively identifying the circumstances in which a party should be extended that opportunity, the Full Court referred to a number of examples, including “… where a party wishes to adduce evidence which was not previously available”.
In this case the applicant has had the opportunity to relitigate but, having done so, no evidence has been presented that would impact upon the findings made by Deputy President Forgie. Consequently, those findings should not be altered.
Background Findings
I adopt and repeat the findings made by Deputy President Forgie with respect to ‘THE BACKGROUND’ at paragraphs 10‑21 of the 2002 Denhollander decision which I set out below:
Mr Denhollander's service
10. I am satisfied that Mr Denhollander, who was born on 20 April, 1949, enlisted in the Royal Australian Navy ("RAN") on 9 March, 1968 for nine years. He was trained as a naval chef after his initial training. Early in 1969, he developed an abscess on his left buttock. That discharged spontaneously but, in May, 1969, he found that he could not bend over one morning. When he attempted to do so, the pain was excruciating. He was admitted to HMAS Cerberus ("Cerberus") for investigations. Mr Denhollander was found to have an epidural spinal abscess involving symptoms more to his left side than to his right. In addition, he had some localised meningitis. Subsequently, he underwent an emergency laminectomy with drainage of the extradural abscess between the spinal levels L3 and S1. Mr Denhollander underwent a second operation on 14 May, 1969 when there was a secondary closure of the wound.
11. On 27 October, 1969, Mr Denhollander was posted to HMAS Stuart ("Stuart") and, in March or April, 1970, he began a period of absence without leave that lasted for almost 12 months. On 16 March, 1971, Mr Denhollander gave himself up and he was incarcerated at HMAS Penguin. On 26 March, 1971, he was posted to HMAS Encounter ("Encounter") and, on the same day, applied for a free discharge because of family difficulties. He was assisted in his application by the RAN's social worker, his Member of Parliament and his wife's medical specialist. His daughter died of SIDS on 14 April, 1971 and he was given a free discharge on 16 April, 1971.
AF Med 1 form
12. Based on the evidence of Commander Alison McLaren, a Medical Officer with the Royal Australian Navy, and chapters 2, 3 and 7 of the Australian Book of Reference 1991 – Naval Medical and Hospital Instructions (ABR 1991) ("ABR 1991"), I have made the findings set out in the following nine paragraphs.
13. ABR 1991 was promulgated in May, 1968. Chapters 2 and 3 of ABR 1991 are concerned with medical documentation. A system for maintaining each service member's medical history was established by ABR 1991. That system was intended to improve the facilities for the protection and promotion of the health of the Navy and to provide more information about health conditions. Its basis was that the medical history of each individual member of the Navy accompanied him or her throughout his or her service and was available to the Medical Officer responsible for his or her treatment or care. A duplicate of that record was maintained at Navy Office for administrative purposes and for medical research. Two types of forms accompanied the system: the AF Med series of forms and the AM forms. Broadly speaking, the forms could be grouped into seven classes: Entry; Ship/Establishment; Hospital; Venereal Disease; Medical Board; Field; and Release/Discharge.
14. Four basic documents were prepared at the Recruiting Centre and forwarded to the establishment to which the member was posted. The AF Med 1 form was one of those forms. It was also used to record all other medical examinations during service and on discharge (Exhibit 6, paragraph 0331.2). General Instructions relating to medical examinations during service were contained in Article 4487 of the Regulations and Instructions for the Royal Australian Navy, which was in force in 1968 ("ABR 5016") (Exhibit 6, Annexure B).
15. Section VI of Chapter 3 of the ABR 1991 specified the manner in which AF Med 1 was to be completed. In relation to examinations other than examinations for entry, the Instructions specified:
"b. Other examinations
(1) Boxes 1-8, 10-13, 15, 19, and 57 to be completed by the Medical Officer or his delegate. Box 7 should be explicit – ie Annual, Diving Medical, etc.
(2) Boxes 9, 14, 16 to 18, 20 to 50 and 58 to 65 to be completed by the Medical Officer. Boxes 6, 10, 13, 18, 29, 30, 31 to 50 may be omitted at the discretion of the Medical Officer.
(3) Boxes 51-56 are to be completed by the Medical Officer for aircrew candidates only.
…
d. The results of the examination are to be recorded in the first instance by placing a tick in the appropriate column 'Normal' or 'Abnormal'. Abnormal findings are to be amplified in box 58.
e. Box 62 is always to contain a clear expression of opinion such as 'Fit all branches'; 'Fit for discharge – Engagement expired'." (Exhibit 6, Annexure A, paragraph 0331.5)
16. Medical Officers were required to specify the type of service in which members might be employed or to indicate the limitation of service resulting from their physical condition. The categories were:
"Category Type of Service or Limitation of Service
A Fit for service anywhere
BFit for posting to a ship or establishment where a full-time or part-time Medical Officer is borne. (Expected period to be stated)
BYFit for posting to a ship or establishment where a full-time Medical Officer is borne. (Expected period to be stated)
CUnder medical treatment and unfit for duty anywhere. (Expected period to be stated)
DUnfit for sea service temporarily but fit for duty on shore. (Expected period to be stated)
EUnfit for sea service but fit for duty on shore
KTemporarily unfit for duty in a potentially malarious area
TUnder medical supervision, unfit for posting but fit for light duty. (Expected period to be stated)
YTemporarily unfit for sea service and for service on shore north of Brisbane or Fremantle. (Expected period to be stated)" (Exhibit 6, Annexure A, paragraph 0250)
Before a member was officially recorded as being in any category other than A or C, he or she must be surveyed on Form AF Med 23. That survey would have been conducted by a Board of Medical Survey. The category was to be implemented on receipt of the Naval Board decision on the survey. Medical Boards conducting interim medical surveys were to recommend a definite period of time for personnel in those categories.
AM form
17. An AM 146z form was a Medical Statement of an officer or sailor on Discharge or Reversion to the Royal Navy (Exhibit 6, Annexure A, paragraph 0332). The member is instructed to complete it three months before he or she is due for discharge (Exhibit 6, Annexure A, paragraph 0740). Among the other steps to be taken at that time are:
"c. A full medical examination including X-ray examination of the chest (70 mm or larger film) is to be made and recorded on Form AF Med 1 – 'Medical Examination Record'.
d. Any disability claimed or discovered is to be investigated and treated without delay.
e. If it appears that the member will not be fit on the due date for discharge, and if the member so requests application may be made for discharge to be deferred. The signal is to contain the following information:
(1) authority for discharge and due date for discharge;
(2) nature of disability;
(3) date member first became aware of disability;
(4) date member first requested treatment of the disability;
(5) reasons for the time lag between dates given in (3) and (4);
(6) where it is proposed to carry out treatment;
(7) anticipated duration of treatment.
f. The onus is on the member to request service medical and dental treatment when a disability becomes apparent to him. The only type of case which will receive favourable consideration for retention is that in which it has been clearly established that the circumstances which prevent the member from being fit for discharge on the due date are beyond his control.
g. Retention will not generally be approved for treatment of a disability which the member has known he had had for some time and has not requested treatment. The information in e. should cover this point.
2. Should retention in hospital be beyond 30 days the person is to be brought forward for Interim Medical Survey. (ABR 5016, Article 4489)" (Exhibit 6, Annexure A, pages paragraph 07040).
Discharge is dealt with in ABR 5016 but it adds nothing of relevant to this case.
AF Med 1 form completed in relation to Mr Denhollander
18. Those boxes numbered 14 (hearing) and 15 (Chest X-ray) on the AF Med 1 form completed on 20 April, 1971 by Dr Alderman in relation to Mr Denhollander did not contain any notation. A separate note referring to question 15 stated "X Ray results will be forwarded". Those numbered 36 (Anus), 40 (Lower extremities), 41 (Feet), 42 (Spine) and 45 (Nervous system) were ticked as being "Normal". Those numbered 51 to 56 (Manifest hypermetropia, Maddex red., Accommodation, Convergents, Exercise tolerance test and Leg length) were crossed out on the form. A separate note stated "Long abdominal scar DIF scar centre lower lumbar region. No evidence of any disability on examination due to epidural abscess or subsequent laminectomy". The box numbered 61 (Previous category and date) recorded "Category A" as did the box numbered 62 (Category A).
AM form completed by Mr Denhollander
19. It was common ground between the parties that the AM form was incorrectly dated 19 April, 1970 rather than 19 April, 1971. Mr Denhollander did not complete boxes 9, 10 and 11 on the AM form, which is headed "Medical statement of an officer or rating on discharge or demobilisation or reversion to the Royal Navy". The word "NO" appeared in each box and it was conceded by the Department that it had not been written on the form by Mr Denhollander. The questions asked in each of the boxes and the information sought was:
"9. Do you claim to be suffering from any disabilities which you consider to be due to or aggravated by service?
If so, record your reasons. …
10. Have you served outside Australia?
If so, when, in what ships and/or localities. …
11. Have you made any claim under the Repatriation or C.E.C. Acts and have you been granted any pension or compensation?
If so, record details." (T documents, page 45)
20. Mr Denhollander was rated as being in category A by the Medical Officer at the medical examination preceding his discharge. There was no survey by a Board of Medical Survey.
21. Apart from relevant formal personal details Mr Denhollander had given the following answers to the following questions:
"7. Do you suffer from any disabilities at present?
If so, record details.
Yes
Backaches.
Box 8 refers.
8. Have you suffered from any disabilities during service?
If so, list them together with approximate dates of occurrence and where serving at the time.
Yes. About on the spine.
1st June 30th July H.M.A.S. Cerberus
9. Do you claim to be suffering from any disabilities which you consider to be due to or aggravated by service?
If so, record your reasons.
No
10. Have you served outside Australia?
If so, when, in what ships and/or localities.
No.
11. Have you made any claim under the Repatriation or C.E.C. Acts and have you been granted any pension or compensation?
If so, record details.
No.
12. Remarks.
Owing to operation still have a times certain aches in the spinnel region especially if bending to much. But seems to clear after good nights sleep." (T documents, page 45)
THE LEGISLATIVE FRAMEWORK
Part 5 of the FOI Act deals with the amendment and annotation of personal records. Section 48 of the FOI Act provides as follows:
48 Application for amendment or annotation of personal records
Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:
(a) that is incomplete, incorrect, out of date or misleading; and
(b)that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the person may apply to the agency or Minister for:
(c) an amendment; or
(d) an annotation;
of the record of that information kept by the agency or Minister.
Section 50 of the FOI Act provides as follows:
50 Amendment of records
(1)Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that:
(a) the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and
(b) the information is incomplete, incorrect, out of date or misleading; and
(c) the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose;
the agency or Minister may amend the record of information.
(2) The agency or Minister may make the amendment:
(a) by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or
(b) by adding to that document or official document a note:
(i)specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and
(ii)in a case where the agency or Minister is satisfied that the information is out of date—setting out such information as is required to bring the information up to date.
(3)To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment.
The only issue between the parties with respect to ss 48 and 50 of the FOI Act is whether the AF Med 1 form is incomplete, incorrect, out of date or misleading.
Section 51 of the FOI Act applies where the Agency or Minister decides not to amend a document, in which case there is a provision for an annotation under s 51A.
An important limitation on the powers of the Tribunal to amend records is contained within s 58AA, which provides as follows:
58AA Powers of Tribunal—limitation on amending records
(1)The Tribunal may, in a decision on an application to the Tribunal under section 57A, make a decision that requires, or that has the effect of requiring, that an amendment be made to a record that relates to a record of an opinion only if the Tribunal is satisfied of either (or both) of the following:
(a) the opinion was based on a mistake of fact;
(b) the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.
(2)The Tribunal must not, in a decision on an application under section 57A, make a decision that requires, or that has the effect of requiring, that an amendment be made to a record if it is satisfied of either of the following:
(a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person;
(b) the decision whether to amend the record involves the determination of a question that the person seeking amendment of the record is, or has been, entitled to have determined by the agency (on internal review), the Information Commissioner, a court or tribunal.
(3) In this section:
enactment includes a Norfolk Island enactment.
It is not in dispute that the AF Med 1 form is a “record of an opinion”, but there is a dispute as to whether that opinion was based on a mistake of fact and whether Dr Alderman, as the author of the opinion, was unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion. These issues are threshold issues in the sense that the Tribunal may only make an amendment if satisfied of either or both of them.
THE EVIDENCE
The applicant
In January 1969 the applicant developed an abscess or furuncle on his thigh and two months later he developed severe pain in his back radiating down the legs. He was admitted to hospital and on 7 May 1969 the applicant underwent an emergency laminectomy and drainage of the abscess. Details of the operation are provided on the Surgical Operation Sheet at page 37 of Exhibit 2. He was discharged from the Heidelberg Hospital on 31 May 1969 to the HMAS Cerberus and then took 14 days sick leave. The applicant says that there was no medical survey to establish his fitness for duty upon discharge from the hospital.
The applicant returned to work but not on full duties. In about October 1969, he was posted to the HMAS Stuart where he carried out light duties as a cook. Again, the applicant complained that there was no preliminary medical examination to establish his fitness for serving on the HMAS Stuart.
In February 1970 it was recorded in the Daily Medical Record of the HMAS Stuart that the applicant’s “leg gives way every now and then but with increasing frequency since about four months”. No treatment was given and he was sent back to duty.
On 10 March 1970 he was examined by an orthopaedic specialist who could find no abnormality in the lower limbs, except for the furuncle in the left thigh. Soon after that examination the applicant began a period of absence without leave. He said that he was not coping with the conditions on the HMAS Stuart from a physical point of view. He returned about two or three weeks later but only for a month or two before there was a further period of absence without leave for about six to eight weeks. He returned to HMAS Stuart and began a further period of absence without leave for about six to eight months. In early 1971, he was locked up in the police watch house and then incarcerated at HMAS Penguin for about two weeks. Upon release from the HMAS Penguin he was posted to HMAS Encounter in Adelaide. He then applied for free discharge on compassionate grounds because his daughter had died of SIDS on 14 April 1971. The applicant was granted free discharge on 16 April 1971.
The applicant underwent the discharge examination on 20 April 1971.
Prior to the discharge procedure, the applicant filled out the form AM 146Z. The applicant was then accompanied by the Sick Bay Attendant, Petty Officer Wilson, to a medical clinic where he met Dr Alderman. Petty Officer Wilson gave some notes to Dr Alderman. The applicant left blank sections 9, 10, and 11 of the AM 146Z form. Section 9 said “Do you claim to be suffering from any disabilities which you considered to be due to or aggravated by service? If so, record your reasons.” The applicant said that he did not fill that in because he did not have any of his medical records and he spoke to Petty Officer Wilson about that.
Dr Alderman asked the applicant to take his shirt off and took a particular interest in his scar. The applicant would probably have said that he had had an operation on his back. He can only recall that it was a brief examination. He cannot recall whether there was other examination besides the scar. He does recall sitting down and talking to Dr Alderman and discussing issues with him but he does not have a real recollection of what issues they discussed. The examination concluded and Petty Officer Wilson drove him back to the base from where he was officially discharged on that same day.
After discharge the applicant had about 10 different jobs. He started seeing a General Practitioner, Dr Graham, in 1971 and conveyed to him the problems he was having with his spine. There is a letter from a Gastroenterologist, Dr Michael Alp, dated 6 December 1982 which refers to a “past history of very long problems with his back which was eventually operated on”. This letter was part of the further evidence that was not before Deputy President Forgie in the 2002 Denhollander decision, but it does not add any information material to the decision made by Deputy President Forgie or the decision to be made by this Tribunal. It describes how, on examination, he looked extremely well but said that he was still very introspective about himself. For that reason he was referred to a psychiatrist. In 1980, he started seeing Dr Mark Reid, a Physician, who he has been seeing to this day.
As set out above, I consider that the oral testimony given by the applicant does not impact upon the findings made by Deputy President Forgie. Indeed, I consider the applicant’s testimony supports those findings.
The Medical Evidence
Deputy President Forgie deals with the medical evidence before her in paragraphs 43‑74 of the 2002 Denhollander decision. The clinical notes she relied upon are the same as those before this Tribunal. The applicant disagrees with some of this evidence but it is not suggested that the evidence in those paragraphs was not given.[3] The applicant disagreed that those paragraphs contained a complete medical history and in particular relies upon the letter from Dr Alp to show that he did have problems during the 1980’s.
[3] The applicant prepared a Statement of agreement or disagreement with the decision of Deputy President Forgie of 30 September 2002, which was provided to the Tribunal on 29 March 2016.
I adopt and repeat the findings made in paragraphs 43‑74 of the 2002 Denhollander decision as set out below:
Clinical notes from Mr Denhollander's service medical records
43. On 17 June, 1969, Lieutenant Cheffins, a surgeon with the RAN, examined Mr Denhollander and reported:
"Following Sick Leave well.
Reviewed by Mr. Hooper on 13/6/69 – "Feels very well, back not very uncomfortable.
Wound well healed.
It is difficult to be sure of any abnormality on examination at present.
For: W.B.C.
E.S.R.
X-Ray after next visit.
Review in 4 weeks.
(Sgd) R.Hooper."
Make arrangement for appointment at R.G.H. on 11/7/69 to see Mr Hooper." (Exhibit 2, page 9)
44. Mr Hooper examined Mr Denhollander on two occasions and reported:
"11/7/69 Is now back at work. No pain in back.
No troubles with feet.
O/E. Wound well healed.
No abnormal signs.
ESR still raised.
For X-Ray today and I would like to see him again in 6 weeks time." (Exhibit 2, page 17)
"22/8/69 Feels very well now. Has had some eye infections lately but no boils. No trouble with lower limbs. No disturbance of micturition. Back is comfortable.
Examination: The only abnormal sign elicited was a slight inequality of the ankle jerks.
No need for further review." (Exhibit 2, page 19)
45. On 19 February, 1970 and 3 March, 1970, Mr Denhollander reported that his left leg was giving way now and then but with increasing frequency (Exhibit 2, pages 20-21). He was referred to a specialist. The evidence contains a note of a medical examination that took place prior to the examination leading to the AF Med 1 form. It was written by a Consultant Orthopaedic Specialist on 10 March, 1970 and reads:
"Co. (L) lower limb 'gives way' going down ladders. Has had some back ache after exersion (sic) since his operation 7/5/69. Not worse over the over the last month. He is a cook. Plays no sport.
O/E. I can find no abnormality in the lower limbs except for a furuncle in the lower limbs except for a furuncle in (L) thigh (suggest this be drained (LA) and drained of the pus in it – which is probably sterile now)
The lumbar sacral are of good range and accompany by only slight pain at the of movement range.
The 'giving way' of the left lower limb is not due to any abnormality in muscles or joints of the left lower limbs. He can in fact stand on the left foot, kneebend and touch the right knee on the floor and come up.
No inequality of the thighs or calves.
No significant inequality of the tendon reflexes.
Sensation normal.
All joints of both lower limbs normal.
Recommend review by-:
(1) Neurosurgeon.
(2) Dermotologist (re furuncles)" (T documents, pages 32-33)
46. Mr Peter Byrne, who is a General Surgeon, reviewed clinical notes in Mr Denhollander's file. The X-ray reports in 1969 prior to Mr Denhollander's discharge were summarised:
"A1. X-ray Lumbo-Sacral Spine and Pelvis 2 May 69 – normal.
A2. Lumbar Myelogram X-ray 7 May 69.
1) A large extra-dural collection completed surrounding the canal from L3 level downwards mainly on the left side.
A3. X-ray Lumbo-Sacral Spine 19 June 69.
1) Myelographic contrast medium and spinal canal.
2) Laminectomy has been performed at the L4 and L5 levels.
A4. X-ray Lumbo-Sacral Spine 11 July 69.
No significant new change is evident." (Exhibit 2, page 38)
Medical reports and reviews of Mr Denhollander's Service Medical Record
47. Mr George Potter is an Orthopaedic Surgeon and a Senior Consultant Orthopaedic Surgeon, to whom Mr Denhollander had been referred in 1996 by Dr Reid for an evaluation of low back pain and bilateral sciatica. At that time, Mr Potter found that Mr Denhollander had clinical signs consistent with the diagnosis of an incompletely resolved cauda equina syndrome and current nerve root irritation. Those signs included a reduced bilateral straight leg raising together with altered pin prick and light touch sensation in both legs and in the perianal region. He had reasonable power and intact reflexes. His range of spinal movements was quite markedly restricted. A CT scan taken in 1996 and subsequent MRI scans showed changes of a post surgical nature following a wide decompression of Mr Denhollander's spinal canal. Those changes included extensive and florid scar reaction to the complete resection of the left apophyseal joint at L5. The wide decompression was probably used to drain the epidural abscess.
48. Mr Potter continued in his report dated 29 April, 1999:
"The extent of the bony resection used to clear the epidural abscess indicates that Mr Denhollander would have been left with a significant residual physical impairment at the time he was medically discharged from the army. Whether he reported a subjective disability at the time would have depended on a wide range of factors but on an objective medical assessment this problem in the absence of significant nerve root signs would necessarily leave him with a residual impairment.
I considered that Mr Denhollander had a major disability as a result of epidural scarring and nerve root tethering following an epidural abscess at the age of 19.
Since that time there has been a gradual and understandable deterioration in his condition and I would consider it likely that there has been a deterioration since 1988. At present his long standing problems of epidural scarring and nerve root tethering have been compounded by the degenerative changes occurring in this region of his lumbar spine and with the additional scarring and facet joint enlargement he will have an increasing low back disability as a result of these processes and this is likely to compound the nerve root irritation as these changes will result in further narrowing of the canals through which his tethered nerve roots pass.
I consider that Mr Denhollander is now unemployable as a result of his condition. There are understandable and identifiable pathophysiological changes in his lumbar spine which have compounded the disability he developed following the epidural fibrosis which arose following the causative problem of an epidural abscess. The severity of his disability and the inevitability of degenerative changes compounding his problem is likely to have ultimately forced him to leave paid employment." (T documents, pages 26-27)
49. Later in his report, Mr Potter stated:
"4. I was not involved in his care in April 1971. He now has clear clinical and radiological changes consistent with the effects of the earlier diagnosis of a cauda equina syndrome arising from an epidural abscess. Surgical clearance of an epidural abscess and the subsequent finding of extensive fibrosis clearly indicates this man would have had a residual medical condition at the time of his discharge which would have affected his physical function.
5. I consider there has been a gradual and ongoing deterioration in his condition since it first occurred in 1971. With wear changes in the facet joints there has been further narrowing of the canals through which the tethered nerve roots pass and the development of increasing problems associated with the changes of spondylosis and further nerve root entrapment. I consider some of the scar tissue would have been present from the time of his original surgery. The deterioration occurring as a result of the subsequent changes identified would have been a progressive and ongoing process.
It is only over the last decade that he has developed problems with pain radiating through back legs. This change is likely to be due to the development of lateral canal stenosis secondary to the changes identified. The urological and bowel problems are likely to represent a further compression of the scarred and damaged cauda equina arising from additional narrowing with the spinal canal.
6. His outcome following surgery for a very serious condition in 1969 is considered to have been reasonable. There is nothing to suggest that his disability is arising as the result of an unintended consequence of medical treatment and it is more reasonable to state that his surgical treatment is likely to have minimised the disability and the permanent paralysis this man may otherwise have suffered." (T documents, pages 28-29)
50. Professor Villis Marshall, the Director of Urology at the Flinders Medical Centre, wrote a report on 23 October, 1997. He began his report with the following:
"… It seems that the problems that he is describing started when he was a young man in the Navy, when he developed an extradural abscess which required drainage from L3 down to the sacrum as indicated in his naval medical records. Interestingly enough it appears he did make a relatively full recovery at that time, and apart from ongoing back problems, there was no documentation of either sensory impairment or bladder or bowel dysfunction. It seems that it has really only been over the last decade or so that he has developed problems with what he describes as sciatica in both legs, and he tells me that he has discovered some problems passing his urine for about 2 years, and also has had problems with impotence both of these conditions are as I understand it, being investigated by Dr Moretti. He also tells me that he gets pins and needles in his left leg, and towards the end of the day is unable to walk freely. He also tells me that he has now developed some bowel problems he gets constipated, and at times, he has had some degree of faecal incontinence. As far as his voiding is concerned, he says he passes his urine in dribs and drabs, and he apparently had an ultrasound performed by Dr Moretti, which in fact showed that his bladder did not empty completely." (T documents, page 37)
51. Professor Marshall considered that his findings were consistent with cauda equina damage and then turned to the discharge documentation:
"… The difficulty that I have when I reviewed his documents, was that unfortunately he did not indicate that he had any symptoms other than some back pain on discharge, and also equally unfortunately it does not seem that the discharge medical officer, really asked any specific questions, or indeed if he did, he did not document the observation. I would have thought that in this particular case this would have been appropriate to document both positive and negative information, as well as one could have anticipated, that he may have had some permanent neurological deficit given the magnitude of the infection." (T documents, page 38)
52. In his capacity as a Senior Consultant General Surgeon, Colonel Peter Byrne wrote to Major Tattersall of the Defence Personnel Executive in the Directorate of Entitlements on 27 February, 1998. He attached reports of Mr Potter dated 15 May, 1996 and 31 December, 1996 (Exhibit 2, pages 27-33) as well as the report of Professor Marshall (Exhibit 2, pages 43-44). After referring to Mr Denhollander's spinal canal abscess and two major surgical operations, Mr Byrne wrote that Mr Denhollander was left with a weakness in his left leg and a loss of peri-anal sensation which has remained a chronic problem since that time. Mr Denhollander's subsequent naval career was limited to shore postings.
53. With reference to the AF Med 1 form, Mr Byrne wrote:
"Evidently his discharge medical documentation from the RAN was inadequate to the extent that he was classified as being fully physically fit. This was patently not so." (T documents, page 35)
54. Mr Byrne then referred to Mr Denhollander's significant limitations on his recreational activities since his discharge. After detailing them, Mr Denhollander submitted that:
"… amendments need to be made with respect to his Final Medical Board and Discharge Medical Examination Summary to reflect the problems he had whilst serving in the RAN involving the spinal abscess with subsequent operations." (T documents, page 35)
55. Mr Kim Moretti, an Urologist, observed that he did not have Mr Denhollander's Service Medical Records and so based his opinion on the information given to him by Mr Denhollander. He concluded that the epidural abscess which was contracted whilst in the Navy in 1969 was probably the principal cause of his condition. As a result of that abscess, he suffered a partial cauda equina lesion (Exhibit 2, pages 45-47). Mr Desmond Hoffmann, a surgeon, reached a similar conclusion (Exhibit 2, pages 51-52).
56. Commander Sparrow, a Medical Officer in the Defence Health Service, reviewed Mr Denhollander's Service Medical Record on 23 June, 1997 and, after noting the incorrect date on the AM form, reported:
"2. There is a report from an orthopaedic surgeon dated March 1970, that indicates that Mr Denhollander had an extremely good recovery from his surgery in the May of the previous year. The only problems recorded at the time were that his left leg gave way occasionally, and that he got frequent cramps in the legs, particularly the left. There is no record of any significant pain. As these are contemporaneous notes, it can only be assumed that pain was not of any great significance at that time.
3. In his Medical Statement on Discharge, he noted that he had "at times certain aches in the spinnel (sic) region especially if bending too much but seems to clear after good nights sleep".
4. That he has deteriorated over time is without doubt, and should he have continued to serve, he may well have become Medically Unfit for Naval Service.
5. My opinion is that at the time of discharge however, he was fit to continue serving in the Navy." (Exhibit 3, page 1)
57. Mr Denhollander's Service Medical Record was further reviewed by Dr Caroline Luke, who is the Senior Medical Officer of the Canberra Medical Unit at Duntroon. She had done so in her previous position as a Medical Officer with the Defence Health Service Branch. Having regard to a correction that Dr Luke made in her statement dated 24 October, 2001 in relation to paragraph 6 and making a necessary consequential amendment in paragraph 8, she wrote in her review dated 7 August, 1998:
"2. In May 1969, whilst serving in the RAN as a cook, Mr. Denhollander suffered a severe infection on his right buttock, a common occurrence when working in a hot, cramped environment such as a ship's galley. Unfortunately, this infection then spread to his spine causing an extradural abscess. An emergency lumbar laminectomy was performed and the abscess was drained from the level of lumbar vertebra 3 down to the sacrum. His medical records state that he did suffer from some minor neurological deficits post-operatively but that these were apparently gone after six months.
3. However, on reading all the available medical documentation, it appears far more likely that Mr. Denhollander continued to experience neurological impairment, albeit very minor, all along. I believe that because the neurological sequelae were in the infancy stage of cauda equina syndrome, Mr. Denhollander was probably not aware of the serious nature of such impairment at the time. In fact, he may have had no subjective symptoms at the time of his discharge, especially since he was so keen to leave the RAN for personal family reasons.
4. The circumstances of Mr. Denhollander's discharge appears to have caused a discrepancy in the dates for the medical obligations of the discharge process. His medical discharge health statement was 19 April 1970 but the discharge medical examination was dated on 20 April 1971. A possible explanation for this is that the latter was probably done the next day, not a year and one day later. Since the enclosure numbers of the documents are consecutive this is a likely explanation.
5. In additional, because of his particular circumstances, Mr. Denhollander probably would have undergone his discharge medical without his medical file being available. If so, the examining doctor would not have had access to Mr. Denhollander's full medical history. This would account for the apparently hastily done medical examination. The omission of the full history of his spinal operation and sequelae and notation of "normal" under the headings "anus, lower extremities, spine and nervous system" (when they each had a relevant history of their own), was not in keeping with standard RAN guidelines for medical board examinations. It is possible that Mr. Denhollander may not have been made Medical Category A (One) if a fuller examination had been done or more information was available at the time.
6. Having said this, the clinical findings most likely present at the time would have been consistent with very minor cauda equina syndrome only. This diagnosis would have made Mr. Denhollander probably no lower than Medical Category C (Three) and he would have remained so for about ten to fifteen years, had he stayed in the RAN. This estimate is based on the fact that he has only suffered significant symptoms from his cauda equina syndrome in the last fifteen years at most. There is no evidence to suggest that he was suffering from a debilitating medical condition back in 1970 or 1971. Even the latest medical reports are unable to confidently state, and convince me, that Mr. Denhollander was as seriously affected then as much as he is now.
7. Based on all the available evidence and my careful consideration of this case, I believe that Mr. Denhollander would not have been deemed Medically Unfit for Navy Service (MUNS) at the time of his discharge. Had he remained in the RAN for at least fifteen to twenty years longer then the full sequelae of his spinal operation may well have caused him to be medically discharged (even then, not necessarily MUNS).
8. Whilst the condition from which he now suffers is a fairly common complication of spinal surgery, there are many levels of disability at any one time. From an optimistic viewpoint, Mr. Denhollander has had at least fifteen years of living and working relatively normally with his condition since leaving the RAN. That he now suffers multiple neurological problems is most regrettable and I am sympathetic to his request for review of his mode of discharge. Unfortunately, I must agree with the previous conclusions about his case, that is, he would not have been regarded as MUNS in April 1971. However, I do believe he could have been medically downgraded to …[Medical Category BY]. (Exhibit 3, pages 3-4)
58. Associate Professor Bruce McPhee, who is a spinal surgeon, also reviewed Mr Denhollander's Service Medical Record. After setting out Mr Denhollander's previous medical history, Professor McPhee reported:
"a. Based on the Discharge Medical Examination Record on 20 April 1971 there was no evidence of ongoing cauda equina syndrome. Ongoing backache was noted. The notes by the examining medical officer indicate he was aware of the past history of epidural abscess. This officer indicates "no evidence of any disability on examination due to epidural abscess." Although there was a complaint of low back pan, examination apparently indicated no impairment relating to the laminectomy. On the balance of probability the backache he was then experiencing was consistent with the laminectomy. A laminectomy does result in some reduction is stability of the spine, which is usually not significant. This is the cause of ongoing low back pain. Detailed documentation relating to a medical review on 10 March 1970 also indicates no significant residual neurological or lumbar spine impairment.
b. It is probable that as at April 1971 would have suffered ongoing symptoms as a result of his abscess and subsequent laminectomy in May 1969. This is indicated by low backache. There is a high probability that irrespective of the indications, a laminectomy would eventually result in some low back pain. Low back pain in itself is an inevitability for most patients during their lifetime. There is no indication at the time of examination that this low back pain was causing any impairment.
c. The symptoms relating to his previous surgery include low backache, which was probably of a mechanical type, and cramps in the left leg. Leg cramps are a common sequelae following decompression for nerve root involvement.
d. It is apparent from the examination that there was no evidence of any disability. This would indicate that there was no objective evidence of restriction of function and hence no reason he would not be able to undertake routine employment. From the documentation it would appear that no restrictions were evident at that time." (Exhibit 4)
Mr Potter
59. Mr Potter said that Mr Denhollander's laminectomy created instability in his spine and would lead to ongoing problems. Any person would be left with a permanent physical impairment in the spine. What happens to the person depends upon various factors. A young man who enters a physical fitness programme can mask the symptoms. He might have recovered and he might have had a problem.
60. From an orthopaedic point of view, Mr Potter said that Mr Denhollander's spine is abnormal. There has been both bone and tissue destruction. Mr Potter agreed with Mr Elliott that the answer to a question whether a person is normal or abnormal could depend on whether the question were asked for a research project or in the context of ascertaining the person's ability to do a task. He accepted that a person could have a problem but be classified as normal in the context of employment. A backache does not necessarily mean that a person has an abnormal spine. A doctor in the armed services would be assessing functional disability.
61. Mr Potter said that he did not see Mr Denhollander until 1996 and it was impossible to know how he presented in 1971. Therefore, he was reliant upon what he knows of the normal course of such conditions and upon what Mr Denhollander told him. In terms of outcome, it is possible to have a near normal life. The fact that a person is missing ankle jerks usually means that they will not return but are not an indicator of ongoing disabilities. When asked whether it was possible that a medical examiner who was aware of the laminectomy could mark the AF Med 1 form as normal, Mr Potter said that, since 1969, there has been a growing awareness of the impact of a laminectomy. Even those who performed the surgery in 1969 would not have been aware of the impact. A person making an assessment in 1969 would do so with the knowledge at the time. Mr Potter drew a distinction between an impairment and a disability. An X-ray may show an impairment as it may show an anatomical change. It would not be incorrect to mark Mr Denhollander's spine as normal in 1971.
Dr Anderson
62. Dr Paul Anderson was a Medical Officer in the RAN on a full-time basis from 1968 until 1974. He held the rank of Surgeon Lieutenant Commander and was the Assistant Director, Naval Health Services in the Navy Office. He wrote a report dated 13 November, 2001 to Mr Denhollander's then solicitor. Dr Anderson said that there did not appear to be any Interim Medical Surveys in relation to Mr Denhollander. Had he had a number of Interim Medical Surveys considering him unfit for normal duties, Dr Anderson would have expected him to have a Final Medical Survey. As far as he could remember, naval disability was concerned with fitness for sea going duties and not with fitness over a gamut of civilian occupations.
63. On 10 May, 1992, Mr Denhollander wrote to Dr Anderson with four questions. Dr Anderson answered questions 1, 2 and 4 in the affirmative and question 3 in the negative:
"1 Having regard for the regulations, Method of Recording Diagnosis and the entry of I.C.D. code 342 = Hemiplegia and Hemiparesis on Mr A Denhollanders Naval Medical File, also taking into account his factual medical information and background as it was recorded after his operations and the lack of I.M.S. to state otherwise, would you consider Mr. A Denhollander to have been "Prima Facia" unfit for Sea duty, with a proscribed condition?
2 Was the standard of Normal Health during the period in question considered to be that as stated on my AF Med I Entry Examination Form?
3 Having regard for the regulations 4488 Examination and Treatment Before Discharge Page 1 sec. 5 Normal Health and the Medical History documented, also the degenerative nature of Mr. A Denhollander's condition, lack of I.M.S. to state otherwise. Would you consider Mr. A. Denhollander to have been in Normal Health at discharge?
4 Having regard for the information before you, would you consider that grounds existed on which Mr A Denhollander could have been retired on the grounds of invalidity or of physical incapacity to perform his duties?"
Dr Luke
64. Dr Luke said that "normal", when used on the AF Med 1 form, means that it appears that there is no functional problem and there is no visible anatomical problem of which the patient is complaining of symptoms. "Abnormal" may refer to a finding that is of no clinical significance. When AF Med 1 form referred to Mr Denhollander's spine as normal, it was not incorrect. It was saying that the function of his spine was within the normal limits an average person has. A person needs to have symptoms or show signs for a notation of abnormal to be made. It is not enough that he or she has had pathology if there are no symptoms or signs of it. If there are symptoms that come and go in a couple of days, it would be marked as normal. If they lasted a long time or were something like a high fever, then the medical practitioner would be looking at something else.
65. In reaching a conclusion as to whether to write normal or abnormal, Dr Luke said, it is likely that a medical practitioner would examine a scar and would take into account such things as the manner in which a person got up from his or her seat in the waiting room, the way of walking and moving and the way in which he or she held his or her self. To form a view in relation to posture and gait, it is not necessary to ask the person to do anything. In order to test for power, tone and reflexes, it is necessary to do more when recruiting. They are not done on discharge unless difficulties are apparent or unless the person complains of difficulties. The feet are looked at for flatness or high arches. The skin is looked at for its condition. He or she is asked to move the toes and ankles. He or she is asked if there are any problems with his or her anus. If there are, it is looked at. If the person said that there were no problems with the anus, it would not be looked at. With regard to the nervous system, the medical practitioner will test by observation. If there is a potential problem then the medical practitioner undertakes a thorough examination by testing such functions as power, tone and sensation.
66. Rather than writing normal or abnormal, a medical practitioner may write "N/E" to indicate that there has been no examination. Dr Luke said that the manner in which Mr Denhollander's AF Med 1 form had been completed did not suggest anything about the procedure that had probably been followed by Dr Alderman. It is usual to have the person's Service Medical Record at the time of the examination. Having regard to the manner in which the form had been completed, she considered that Dr Alderman had access to those records. The word "laminectomy" appears on the form and that suggests that he did have the records because he might not have known the full operation based simply on what a patient tells him. It is possible that he obtained the information by telephone but more likely that he had the records as is the usual clinical practice, Dr Luke said.
67. The fact that a person has a scar does not mean that the person is abnormal in some area. A laminectomy, for example, leaves anatomical deficiencies but not necessarily an abnormal spine in terms of function. Dr Luke drew a comparison with an appendectomy that leaves a scar after removal of the appendix. That does not mean that the abdomen is abnormal in terms of function. Anatomical change does not necessarily mean functional change. If there is no functional change, the spine would be noted as normal. An operation such as that undergone by Mr Denhollander will possibly give rise to symptoms afterwards but not always. Symptoms can be a very temporary state of affairs.
68. Dr Luke agreed with Mr Cole that, had perianal numbness been noted at the time of the medical examination, the anus ought to have been recorded as abnormal. If there were symptoms elicited of difficulties with stairs, that should have led to an abnormal notation, she agreed but only if there were some clinical signs.
69. Dr Luke said that a medical practitioner was not required to complete every box on the AF Med 1 form and it was not uncommon to see boxes not ticked. If the person's Service Medical Record were not attached and the condition were known, it could be expected that the medical practitioner would note the condition. If those documents were attached, there would be no need to do so.
70. Assuming that a person said that he was having problems with his leg giving way when lifting heavy weights and going up stairs, Dr Luke said that she would not mark him as unfit for service. If those symptoms were present at the time, he was not totally unfit for any sort of work in the RAN. He could have been found another job, she said. Other work included work as a driver or clerical work or any "land based" jobs. Before the late 1990s it was common for people to be placed in such dry positions. Since the late 1990s, the Chief of the Defence Force has decided that members of the Defence Force must be deployable i.e. able to pass a fitness test and to be able to do his or her own job and any other job on deployment.
71. Dr Luke said that Mr Denhollander would not have been unfit for service at sea in the 1970s as he could have done clerical work or been a radio operator. People who had been cooks in the RAN could transfer to another branch. It was an easy enough process, she said. Dr Luke considered that Mr Denhollander's being classified as Category A was not misleading or incorrect. Dr Luke disagreed with Mr Cole's suggestion that Mr Denhollander would have been unfit for duties at sea. Even with the stricter more modern criteria, he would not have been regarded as unfit. If symptoms existed, they would have been investigated. If the symptoms were of a permanent nature, Mr Denhollander would have been reclassified and perhaps been reclassified at the level below Category A. If everyone in the RAN with those symptoms were discharged as unfit, there would be no-one left, Dr Luke said. That was the case with retention but she could not comment upon re-enlistment and whether Mr Denhollander would have been permitted to re-enlist a year after his discharge.
72. Dr Luke had examined the clinical notes relating to Mr Denhollander since 1982. They were not consistent with his having had any problem at the time of his discharge. There was no mention of any neurological or skeletal problem. Numbness does not come and go. Once a person has a neurological impairment it usually remains. There is no mention in the clinical notes, Dr Luke said, of Mr Denhollander's having any problems with his legs. In the 1980s, there was only one reference to back pain and that occurred when Mr Denhollander had fallen from a Land Cruiser. It appeared to be acute lumbar pain. The X-rays taken at the time showed only the previous operation but nothing new. There was no chronic problem recorded since the 1970s and no record that Mr Denhollander had advised Dr Reid of his laminectomy while in the RAN. It would be very unusual not to make a note if Mr Denhollander mentioned that he had the operation or that he had a problem.
Commander McLaren
73. In cross-examination, Commander McLaren agreed with Mr Cole that whether normal or abnormal is noted on an AF Med 1 form depends upon whether the person has an anatomical or functional disability or even pathology without symptoms. Normality and abnormality is a matter for the doctor's opinion. If a person had lost a limb, there would be no debate that it would be marked as abnormal. Whether Mr Denhollander's spine is normal or abnormal depends on the definition of normal. Anatomically, his spine was not normal. Whether it was normal functionally depended on an examination and the symptoms presented. If there were restrictions in using the spine, it would suggest functional abnormality. The same issues determined whether perianal numbness meant that the anus was normal or abnormal. From point of view of a research project, it is abnormal. From the point of view of fitness for service, it would be treated as normal.
74. Commander McLaren considered that Mr Denhollander would not have been considered unfit for service even if he could not stand for long periods of time, could not lift, had problems with ladders and could not engage in repetitive bending. It all depended upon the degree of the lack of Mr Denhollander's function. A decision would then have to be made as to whether he was fit for sea or fit for other duties. Since 1975 or 1976, what is considered fitness for service has changed drastically. People were previously retained with quite significant disabilities but are now discharged. Mr Denhollander could have been a motor transport driver, a radio operator or a writer/clerk.
CONSIDERATION
As set out above, I do not intend revisiting all of the findings made by Deputy President Forgie in the 2002 Denhollander decision, except insofar as those findings may be affected by the further oral and documentary evidence which was not presented to Deputy President Forgie. My view is that there is no material difference between the evidence presented to Deputy President Forgie and the evidence presented on this application. I have carefully considered all of the evidence presented before me and I have reached the view that the findings made by Deputy President Forgie are sufficient to deal with this application and that there is no reason to alter those findings or the decision made. Given my view of the evidence, it would be inappropriate for me to make fresh findings. Consequently, I adopt and repeat the findings made by Deputy President Forgie in paragraphs 75‑93 of the 2002 Denhollander decision, which I set out below:
CONSIDERATION
75. In view of the provisions of s. 55(6) of the FOI Act, the first matter to consider in a matter of amendment arising under Part V must be the nature of the document sought to be amended. That is to say, is it a record of an opinion? If it is such a record, it may only be amended if the opinion expressed in it was based on a mistake of fact or if the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion. In this I agree with the interpretation in Re Close and Australian National University (1993) 31 ALD 597 (Senior Member Beddoe, Mr Atwood and Mr Julian, Members) at 601.
76. I have considered first whether the AF Med 1 form is a record of an opinion. The evidence of Dr Luke, Commander McLaren and Mr Potter, together with the nature of the form and ABR 1991 persuades me that it is. It is clearly a record of a medical examination that had to be undertaken by a medical practitioner. Apart from questions such as weight and height, which can be answered precisely as they may be measured in absolute terms, most questions can only be answered after the medical practitioner has formulated an answer based on the "condition" of the person being examined and based on the medical practitioner's professional knowledge. Questions requiring an answer of either normal or abnormal answer cannot be answered in absolute terms. Commander McLaren expressly stated that the correct answers to such questions were a matter of opinion. It was also inherent in the answers of Commander McLaren, Dr Luke and Mr Potter that this is so. Both Commander McLaren and Mr Potter agreed that the answer would depend upon whether it were to be used for a research project or in another context such as ascertaining a person's ability to work. All looked at the various aspects that would be taken into account in reaching the answer. It was implicit in their evidence that the answer had to be a matter of professional judgement based on the way in which the person presented, any medical records that were available and the professional knowledge of the medical practitioner.
77. Based on this evidence, I am satisfied that the AF Med 1 form is a "record of opinion" in the sense in which that expression is used in s. 55(6) of the FOI Act. It was a written document stating the medical practitioner's "… view held about a particular subject or point; a judgement formed; a belief … A formal statement by … an expert, etc., of what he or she judges or advises on a matter; professional advice …" (The New Shorter Oxford English Dictionary, 3rd edition, 1993).
78. The next question I have considered is whether the opinion expressed in the AF Med 1 form was based on a mistake of fact. The expression "mistake of fact" is frequently used in various contexts either alone or in company with the expression "mistake of law". For all that, its meaning is rarely expanded upon. As Kay LJ said in Barrow v Isaacs & Son [1891] 1QB 420 (Lopes Esher MR, Kay and Lopes LLJ):
"Very wisely, as I presume to think, the Courts have abstained from giving any general definition to what amounts to mistake." (page 425)
That view no doubt arises from the myriad of circumstances that may arise and from which a person may be heard to say "I made a mistake". At the risk of adopting an unwise course, though, I set out the first meaning of the word "mistake" given in the The New Shorter Oxford English Dictionary for it suggests breadth of its meaning:
"… A misconception about the meaning of something; a thing incorrectly done or thought; an error of judgement. …" (The New Shorter Oxford English Dictionary, 3rd edition, 1993)
The only limitation upon its meaning in the context of s. 55(6) is that it must be a mistake of fact and not of law.
79. Did Dr Alderman base the opinions he recorded in the AF Med form on a mistake of fact? There was some discussion at the hearing as to whether a Board of Medical Survey should have been convened and whether Mr Denhollander should have been discharged without its having been convened. The submission made on behalf of Mr Denhollander was that, in circumstances in which reference was made to a disability on the AM form, it triggered a process whereby the member was referred for treatment and/or assessment of his or her disability by a Board of Medical Survey to recommend the discharge category.
80. The submission raises a number of issues. The first is whether there was a requirement that Mr Denhollander be referred to a Board of Medical Survey. Mr Denhollander had noted on the AM form that he had suffered an abscess on the spine and that he still suffered aches in the region of his spine following the operation. He attributed the aches to the operation and said that they occurred if he bent too often. They seemed to clear after a good night's sleep. According to ABR 1991, a disability claimed or discovered was to be investigated and treated without delay. The affected person's discharge might be deferred if it appeared that he or she would not be fit for discharge on the due date and if he or she so requested. It is clear from paragraph 07040 of ABR 1991 that the purpose of retaining the person was for the purpose of treatment but that retention would only occur if he or she had requested treatment when the disability became apparent. The person was to be brought for an Interim Medical Survey if he or she was to be retained in hospital beyond a period of 30 days.
81. In Mr Denhollander's circumstances, there is no suggestion in ABR 1991 that he should have been referred to a Board of Medical Survey. That is not a procedure to which reference was made in the context of a discharge. There is no evidence that Mr Denhollander had requested medical treatment for his condition that had not been carried out. The operations had been completed some time earlier and there is no evidence that any follow up treatment was necessary at the time. Mr Potter did not suggest that there should have been such treatment at that time. Dr Anderson thought that there should have been a Final Medical Survey if there had been a number of Interim Medical Surveys. There is no evidence that there had been a number of such surveys.
82. Dr Alderman was criticised in that he had not marked boxes 30, 31, 32 and 50 as either normal or abnormal. The criticism is unfounded for, in accordance with ABR 1991, I find that those boxes could be omitted at the discretion of the Medical Officer.
83. On the evidence that I have, I am not satisfied that there was an error in the procedures that were followed on Mr Denhollander's discharge. Even if there had been, that brings me to the second matter raised by Mr Cole's submission. That is whether it would be relevant if there were such an error. Section 55(6) of the FOI Act refers to a "mistake of fact" on which the opinion was based. It does not refer to a mistake in the procedure that was followed by Dr Alderman or by others after the medical examination. If it were a mistake that there was no Board of Survey, it would have been a mistake that occurred after Dr Alderman completed the AF Med 1 form and that would not have affected the facts on which he based his opinion.
84. The third issue raised by the submission made on behalf of Mr Denhollander is to identify the nature of the opinion sought from Dr Alderman. In being asked whether aspects of the body such as the spine and the anus are normal or abnormal, I am satisfied that it is open to find, and I do find, that Dr Alderman was being asked whether they were normal or abnormal in terms of function and in terms of whether treatment was required. He was not being asked a further question whether they were anatomically normal or abnormal. Mr Potter drew a distinction between an impairment and a disability and, in doing so, drew a distinction between an anatomical change and a change in function. Dr Luke and Commander McLaren also drew that distinction. All three considered that Dr Alderman was being asked about normality and abnormality in terms of function.
85. Taking the AF Med 1 form itself into account, I am satisfied that this was so but that he was being asked a further question about normality and abnormality in terms of treatment required. It was a multi-purpose form used to record all medical examinations during service and on discharge. It was used to identify disabilities and to assess the person's category of fitness for service. Given the focus of the ABR 1991 upon treating any disability claimed or discovered prior to discharge it seems to me that it was also used to identify the need for any treatment. That view is reinforced by the fact that the medical examination was to take place three months prior to discharge.
86. The fourth aspect of the submission made on behalf of Mr Denhollander is the time at which, and so the knowledge with which, any mistake of fact is to be determined. It seems to me that it must be assessed at the time that Dr Alderman reached his opinion. As Mr Potter said, there has been a growing awareness of the impact of a laminectomy since 1969. Dr Alderman's opinion must be assessed on the basis of the knowledge in 1971 when he formed it.
87. On the basis of his reference to an epidural abscess and to a subsequent laminectomy, I am satisfied that Dr Alderman was, on the balance of probabilities, likely to have had access to Mr Denhollander's Service Medical Record. He certainly had Mr Denhollander's AM form in which he referred only to his abscess and his aches, at times, in his spinal region. The Service Medical Record showed that Mr Denhollander had made a good recovery from the two laminectomy operations. That is inherent in the clinical notes at the time. There is no suggestion that Mr Denhollander required any further treatment at the time. Apart from the aches in his spinal region, Mr Denhollander himself did not complain of any restrictions that he experienced as a result of his spine. Indeed, he said that the aches seemed to clear after a good night's sleep. In view of that, I am not satisfied that there was any mistake of fact on which Dr Alderman based his opinion not to mark any of the questions 31 to 50 as abnormal but to mark them as normal.
88. Later experience has shown that Mr Denhollander has suffered from the consequences of his epidural abscess but that does not detract from my view of matters in 1971. I am supported in that finding also by the evidence of Dr Luke, Commander McLaren and Mr Potter, all of whom said it would not have been incorrect to mark them as normal as Dr Alderman did.
89. The fifth matter raised by the submissions made on behalf of Mr Denhollander relate to the Category A rating that he was given. On behalf of Mr Denhollander, it was submitted that he should have been classified as medically unfit for Navy service or "MUNS" and that Dr Alderman had made a mistake in not doing so. Dr Alderman's recommendation that Mr Denhollander be rated as a Category A was, I find, a record of his opinion that he was fit for service anywhere. That was an assessment of Mr Denhollander's capacity for employment in the RAN.
90. Mr Denhollander points to Dr Anderson's agreeing with him that he would have considered him to be unfit for service at sea but Dr Anderson stressed that he was expressing that opinion only on material given to him by Mr Denhollander. That Dr Anderson would have formed that opinion does not mean that Dr Alderman based his opinion on a mistake of fact. The Service Medical Record suggests that Mr Denhollander was making a good recovery. Certainly, in February and March, 1970, it was recorded that Mr Denhollander's lower limb gave way when going down ladders but, on examination, no abnormality was found in his muscles or joints of his left lower limbs. Furthermore, a year or so later, Mr Denhollander made no mention of it when he completed the AM form. There was nothing in that form to suggest that he was experiencing any limitations that would affect his capacity to undertake employment in the RAN. It was not asking him to describe the laminectomy or to give the precise diagnosis of any condition from which he was suffering or had suffered. It asked him for his disabilities and he clearly understood what was called for when he referred to his abscess and to his aches in his spinal area. He mentioned no other disabilities.
91. Having regard to all of these matters, I am not satisfied that Dr Alderman formed his opinion that Mr Denhollander should be classified as Category A on the basis of any mistake of fact. As Mr Potter said, a backache does not mean that a person has an abnormal spine when a medical practitioner is assessing functional disability. Dr Luke might have given Mr Denhollander a lower rating but I am not concerned with whether another person might have formed a different opinion on the same facts but with whether Dr Alderman reached his opinion on a mistake of fact. I am satisfied that there was no such mistake of fact in this case.
92. I am satisfied on the evidence that Dr Alderman was not biased or unqualified to form the opinion that he did. As to whether he acted improperly in conducting the factual enquiries that led to his forming his opinion, I have already set out the material to which I have found he referred. In view of the disabilities disclosed by Mr Denhollander, I am not satisfied that he acted improperly in conducting the factual enquiries leading to the formation of his opinion. That is so whether the word "improperly" is meant to convey that his enquiries were in some way "… Incorrect, inaccurate, irregular, wrong … unsuitable [or] inappropriate …" (The New Shorter Oxford English Dictionary, 3rd edition, 1993) whether because of the manner in which they were made or because they were not made or not adequately made. Given that the AF Med 1 form was used to assess the person's category of fitness for service and to identify the need for any treatment, given that the clinical notes in Mr Denhollander's Service Medical Record, given the lack of any hint in the AM form that Mr Denhollander was experiencing any limitations, other than on an intermittent basis, and the limitations that he was experiencing were "cured" by a good night's sleep and given the more limited state of medical knowledge in 1971, I am not satisfied that Dr Alderman acted improperly in conducting his factual enquiries.
93. As I am not satisfied that Dr Alderman's opinion was based on a mistake of fact or that he was biased, unqualified to form his opinion or acted improperly in conducting the factual enquiries that led to his forming his opinion as set out in the AF Med 1 form, I am prohibited by s. 55(6) from amending it. As Mr Denhollander sought only amendment and not an annotation, I do not need to consider that form further.
DECISION
For the reasons set out above I affirm the reviewable decision.
I certify that the preceding 44 (forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones
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Administrative Assistant
Dated: 25 May 2018
Dates of hearing: 10, 11 and 12 May 2017 Applicant: In person Relative or friend for the Applicant Mr Francis Counsel for the Respondent: Mr J Davidson Solicitors for the Respondent: Australian Government Solicitor
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