Freemantle and Repatriation Commission
[2007] AATA 2109
•21 December 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 2109
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A 2005/383
VETERAN’S APPEALS DIVISION ) Re CHRISTOPHER FREEMANTLE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
TribunalJ.W. Constance, Senior Member
Dr. M.D. Miller AO, Member
Date21 December 2007
PlaceCanberra
Decision
The decision of the Repatriation Commission dated 26 March 2004 is affirmed.
..................................................
J.W. Constance. Senior Member
AUSCRIPT AUSTRALASIA PTY LTD
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ADMINISTRATIVE
APPEALS TRIBUNALMR J.W. CONSTANCE, Senior Member
DR M. MILLER, MemberNo A2005/383
CHRISTOPHER FREEMANTLE
and
REPATRIATION COMMISSIION
CANBERRA
FRIDAY, 21 DECEMBER 2007
MR CONSTANCE: Good morning, Mr Freemantle. Take a seat up at the table, there.
This is a matter of Freemantle v Repatriation Commission for decision. Mr Freemantle, just before I give the decision, I need to indicate that it’s being recorded and we will provide a copy of the transcript of what I’m about to say, so that you have a record of it and you can seek any advice you wish in relation to it.
We’ll also issue, hopefully today, an actual formal decision which will just set out the decision. Before I start, if I can say this, and you may well know this, but the role of this Tribunal is to make decisions in accordance with various pieces of legislation and the Veterans’ Entitlements Act is just one of about 400.
We must decide, in accordance with the legislation, sometimes - and it’s not frequently - but sometimes a particular piece of legislation may give us a discretion as to what we decide. In this case, as in most of the cases, we have to decide strictly according to what the Act provides, and we have to follow that.
So, I can say to you before I start to give the decision we’re about to give, is not the decision that you’re seeking but, as I said, we have to decide in accordance with the Act, just as the Veterans’ Review Board did, as did the Repatriation Commission, before that.
The decision is as follows. On 2 March 2004, and application for a disability pension under section 71B of the Veterans’ Entitlement Act 1986 was made by Mr Freemantle. The disability stated in the application was “consequential disabilities due to operation for cerebellar astrocytoma.”
On 26 March 2004, the Repatriation Commission refused this application on the basis that the incapacity suffered by Mr Freemantle was not Defence caused. By a decision of 28 October 2005, the Veterans’ Review Board affirmed the decision. Mr Freemantle has sought a review of the Board’s decision in this Tribunal. For the reasons which follow, the decision under review will be affirmed.
The entitlement to a pension in this situation is set out in section 71 of the Veterans’ Entitlement Act of 1986 and, so far as relevant, that section reads:
Where a member of the Forces is incapacitated from a Defence-caused injury, the Commonwealth is subject to this Act, liable to pay, in the case of the incapacity of a member pensioned by way of compensation to the member in accordance with this Act.
We’re satisfied that Mr Freemantle served in the Royal Australian Navy from 6 August 1985 to 26 October 1987 and therefore has given eligible service under the Act. We’re also satisfied that Mr Freemantle did not render operational service. This means to be eligible for a pension under section 70, we must be satisfied that he is incapacitated from a Defence-caused injury.
Also, it means that we must apply section 124 of the Act which requires that we must decide any matter relating to the application to our reasonable satisfaction. This has been held to be the equivalent of the civil standard of proof, i.e. on the balance of probabilities - and that was in a matter of the Repatriation Commission v Smith (1987) 15 FCR 327.
It also means that section 120B(3) is applicable in determining this application. That subsection provides:
In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person, or the death of a person was war-caused or Defence-caused, only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person in some particular service rendered by the person; and
(b) there is in force a Statement of Principles determined under subsection 196B(3) or (12), or a determination of the Commission under subsection 180A(3) that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
We have before us the documents filed pursuant to section 37 of the Administrative Appeals Tribunal Act of 1975 and they are exhibit A3. On the basis of the documents and the oral evidence that was given, we’re satisfied of the following facts, many of which were not in contention.
On 28 October 1986, Mr Freemantle underwent an operation by Professor Dan, a neurosurgeon, for the purpose of a biopsy and subsequent debulking of a grade 2 astrocytoma. During the operation, extensive haemorrhaging occurred from the brain stem area.
In a letter of 4 February 1987, which appears at page 29 of exhibit A3, Professor Dan described this haemorrhage as follows:
A massive haemorrhage coming from somewhere deep to the tumour which was difficult to identify and control.
The summary of the case history, which is at page 87 of the same exhibit describes the incident as “bleeding from a point distinct” - sorry, I’ll start again:
...bleeding from a point distant to where the tumour removal was being undertaken.
In a letter written by Dr Dan on 27 July 1988 was the exhibit A3, page 73. Dr Dan indicated that Mr Freemantle suffered, in effect, a stroke as a direct effect of the haemorrhage.
On the basis of our findings, we are satisfied that the Statement of Principles concerning cerebrovascular accident, number 52 of 2006, is applicable and this was not in contention between the parties. Paragraph 3(b) of that Statement of Principles reads:
For the purposes of this Statement of Principles, “cerebrovascular accident” means cerebral ischaemia or intracerebral haemorrhage presenting as a transient ischaemic attack or stroke.
Paragraph 5 reads:
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
And I can indicate that clause 7 is not relevant in this matter. The factors in clause 6 which have been referred to on behalf of Mr Freemantle are sub-paragraph (n)(vi) and (vii). Sub-paragraph (m) specifically refers to “intracerebral haemorrhage” only. Sub-paragraph (vi) reads:
....bleeding of an intracerebral space occupying lesion at the time of the clinical onset, a cerebrovascular accident;
and (viii) reads:
...having intracranial surgery within the seven days before the clinical onset of a cerebrovascular accident.
The issue therefore before us is can we be reasonably satisfied on the evidence that either of these factors can be related to the service rendered by Mr Freemantle.
Turning then to the specific evidence in relation to this issue, Mr Keith Freemantle, Mr Freemantle’s father, gave evidence and also a statement on his behalf - of his evidence was filed on behalf of Mr Freemantle. The statement was exhibit A1 and I quote from that statement of 18 October 2006:
Along with my wife, Helen Victoria Freemantle, accompanied my son Christopher when he attended R Noel Dan’s room for a consultation prior to his being admitted to Concord Repatriation Hospital. Dr Dan stated that he would inform the Royal Australian Navy that Chris would require an operation for the removal of the lesion, and that the lesion appears benign in nature. Dr Dan did not discuss whether he thought any alternative treatment was available, nor was he told of the possibility of life-threatening complications of this kind of surgery.
I also accompanied Chris when he was reviewed by Surgeon Commander Retautus Gilmour, RAN, at the naval hospital HMAS Penguin, approximately two weeks prior to his admission to Concord Repatriation Hospital. At that meeting, Chris was informed by Commander Gilmour. He informed Chris that he was required to report to the hospital on 27 October 1986 for admission and that an operation for the removal of the lesion would be carried out on 28 October 1986.
I’d been a member of the permanent naval forces of the Australian Naval Reserve for 44 years and have held the rank of warrant officer since September 1980. I’m currently undertaking Naval Reserve service with the Defence Materiel Organisation. I’m well aware of when an order is an order, and an 18-year old seaman such as Chris does not question the order of a senior officer. In other words, Chris was given no choice other than to undergo the operation.
I have quoted only the relevant parts of that statement in relation to the issue that I’ve referred to. In evidence, Mr Freemantle, Senior, said that he did not hear his son give consent to the operation that was ultimately undertaken. Mrs Freemantle also provided a statement which is exhibit A2, and quoting the relevant parts of that statement, she says:
Dr Dan stated that he informed the Royal Australian Navy about the planned removal of the tumour. He did not discuss any other options for treatment or the high possibility of life-threatening complications or permanent disabilities that can arise from this type of neurosurgery.
Professor Dan, the neurosurgeon who carried out the operation, gave evidence that Mr Freemantle was referred to him by Navy doctors and that Mr Freemantle was treated as a serviceman. He agreed with Dr Beran’s diagnosis of a primary right cerebellar tumour. He said that the operation was initially diagnostic and then there was an endeavour to reduce the bulk of the tumour.
In his oral evidence, in response to a question of whether he had obtained a signed consent from Mr Freemantle, he said that this was the standard thing to have been done, to obtain consent. He said in those days, the consent would have been arranged by the Registrar at the hospital. He said in evidence that he was sure he did explain the risks and he spoke of haemorrhaging and had, in fact, arranged for blood cross-matching.
He was not certain if he explained the effect of the surgery nor - sorry, the effect of the surgery not taking place but, in his opinion, there was no realistic alternative option. He said in evidence that he did advise the Navy that surgery was necessary. He said that:
the normal arrangement was that we -
meaning his office -
contacted the hospital and notified the Navy.
He described it as a joint undertaking initiated by the doctors. He, in his experience, had naval personnel who had declined surgery which was offered.
Dr Andrews, neurologist, also gave evidence. He confirmed that the effects of the haemorrhage - that if the effects of a haemorrhage lasts greater than 24 hours, it is regarded as a stroke, and in Mr Freemantle’s case, because he was left with a fixed neurological deficit, it was properly so regarded. He also provided a report of 17 March 2006, which is exhibit R1.
Dr Beran was the treating neurologist. He provided a report of 1 July 2005 which is part of exhibit A3 and appears at page 103. At pages 108 and 109, Dr Beran had this to say:
The surgery was as a consequence of routine management of a brain tumour with a specific purpose to better diagnose the nature of the tumour, and hence determine appropriate therapy. On the other hand, on 3 October 1986, I clearly wrote in his medical documents that “The next step is to organise hospital admission for surgery for tissue diagnosis”. Whether this could be interpreted as a directive for the Navy or, alternatively, a directive from the Navy to undergo the procedure is highly contentious. It is without doubt that this approach constituted the appropriate medical intervention in the light of the MRI finding, but each member of the RAN has a right to decline medical intervention if he/she refuses to give informed consent.
Without such consent, the procedure, as was undertaken, could not have occurred.
Later, in that report, he said:
There is nothing in the documentation that was provided to suggest that the Navy demanded that surgery which was advised by me in my civilian capacity as consultant neurologist to the Navy.
And I note in relation to that statement by Dr Beran that his questioning of whether it should be interpreted as a directive being highly contentious is also a matter for the Tribunal to decide. It’s not bound by any inference that may or may not be drawn from that statement.
Turning now to the Statement of Principles and, in particular to sub-paragraph (n)(viii) of the various factors set out in paragraph 5 - and I’ll just simply repeat that sub-paragraph which is having intracranial surgery within the seven days before the clinical onset of a cerebrovascular accident.
We’re not satisfied on the balance of probabilities that the having of the intracranial surgery was related to the relevant service. In considering the connection required by the words “in relation to” in the Commercial Arbitration Act of 1985 NT, the High Court had this to say:
Inevitably, the closeness of the relationship required by the expression “in or in relation to” in section 48 of the Act, indeed, in any instrument -
and I emphasise those words -
must be ascertained by reference to the nature and purpose of the provision in question and the context in which it appears.
That is a quote from the High Court’s decision in PMT Partners Pty Limited (in Liquidation) v the Australian National Parks and Wild Life Service (1995) 184 CLR 301, at page 313.
Looking at the context within the Veterans’ Entitlement Act, it’s clear that it is not the intent and that a purely temporal relationship between an injury and the relevant service is sufficient to entitle a veteran to a pension, for example the provisions such as section 9(1)(e)(i) would be unnecessary.
Mr Freemantle’s representative put the proposition to us that in fact there had been a directive by the Navy that Mr Freemantle undergo this operation. On the balance of probabilities, we cannot be satisfied that such a directive was issued. On the contrary, on the balance of probabilities, we are satisfied that consent was sought and obtained.
We note that the Concord Repatriation Hospital records appear to have been lost or destroyed and this is most unfortunate. Nevertheless, we are required to be satisfied that the provision of the Act have been met. Even without those records, we find it difficult to believe that the civilian medical practitioners and the Registrar of the hospital would proceed with surgery such as was carried out on Mr Freemantle without having obtained his consent to that procedure.
We accept the respondent’s argument that the connection in this matter is only temporal and not causal. Mr Freemantle’s service provided the setting in which the injury occurred, but did not provide the cause of it. In this regard, we note that this is consistent with the principles outlined in the Repatriation Commission in Holthouse (1982) 1RPD 287 and Repatriation Commission v Tuite (1993) 39FCR 540.
We also need to consider the provisions of sub-paragraph (n)(vi) to which the representative of Mr Freemantle referred. (vi) reads:
...bleeding of an intracerebral space-occupying lesion at the time of the clinical onset of cerebrovascular accident.
We note that on the evidence before us, there is some doubt as to whether the haemorrhage actually occurred within the lesion or deeper, and I’ve already referred to the evidence in that regard. However, for the reasons that we have given that we cannot be satisfied that the surgery itself was related to the relevant service, there is certainly no evidence before us that would entitle us to make a finding that the bleeding of the lesion, if in fact that was the case, was sufficiently linked to the relevant service.
The representative of Mr Freemantle also referred us to Statement of Principles 53 of 1999, the same - I should say the relevant provisions are identical to the Statement of Principles to which I’ve already referred. For the reasons, we are not reasonably satisfied that the requirements of that earlier Statement of Principles are made out. The decision of the Tribunal therefore is that the decision of the Veterans’ Review Board made on 28 October 2005 is affirmed.
As I’ve indicated, Mr Freemantle, we will provide you with a transcript of just what has been said. Is there anything further you wish to raise?
MR FREEMANTLE: No, that’s fine, thank you.
MR CONSTANCE: Thank you for your attendance. I will adjourn the Tribunal.
ADJOURNED INDEFINITELY [12.22 pm]
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