Hawkins and Repatriation Commission - [2001] AATA 100

DECISION AND REASONS FOR DECISION [2001] AATA 100

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1752

GENERAL ADMINISTRATIVE DIVISION       )
           Re      Howard William Hawkins
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member

Date13 February 2001
PlaceSydney

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides to: 1. Affirm the decision under review in relation to Osteoarthrosis of the Right Knee. 2. Set aside the decision under review in relation to Multiple Fractures of the Lower Jaw and Fracture of the Upper Jaw and substitute its decision that these conditions are defence-caused. Disability Pension is payable from and including 25 June 1998. 3. Remit the matter to the Repatriation Commission for assessment of the appropriate rate of Disability Pension.
  .........…......[sgnd].....................
  Ms SM Bullock
  Senior Member
Catchwords
VETERANS' AFFAIRS - Defence-service - Multiple Fractures of the Upper and Lower Jaws - Osteoarthrosis of the Right Knee - Whether Injury Sustained Arose Out Of or Attributable to Defence-service - Statements of Principles

Legislation
Veterans' Entitlements Act section 68, 69, 70, 119, 120(4), 120B

Authorities
Holthouse v Repatriation Commission (1982) 1 RPD 287
Re Burns and Repatriation Commission [1995] AATA 10119
Wedderspoon v Minister of Pensions (1947) 1 KB 562
Repatriation Commission v Bendy (1989) 18 ALD 144
Harris v Repatriation Commission [2000] FCA 873
Arnott v Repatriation Commission [2000] FCA 1336
Connors v Repatriation Commission [2000] FCA 783
Repatriation Commission v Brown (1990) 12 AAR 253
Re Neilson and Repatriation Commission [1998] AATA 164
Re Kilmaster and Repatriation Commission [1998] AATA 880
Re Bowie and Repatriation Commission [2000] AATA 563
Re Buckfield and Repatriation Commission (1993) 29 ALD 884
Critch v Repatriation Commission (1996) 43 ALD 574
Repatriation Commission v Law (1981) 147 CLR 635

REASONS FOR DECISION

Ms SM Bullock, Senior Member

This is an application to the Administrative Appeals Tribunal ("the Tribunal") made by Mr Howard William Hawkins ("the Applicant") for review a decision made by the Repatriation Commission ("the Respondent") dated 15 February 1999 (T2), which refused a claim for osteoarthrosis of the right knee, multiple fractures of the lower jaw and fracture of the upper jaw. On 30 September 1999, the Veterans' Review Board ("The Board") affirmed the Repatriation Commission's ("the Commission") decision (T15).
A hearing was held in Sydney before the Tribunal on 17 November 2000. Mr Hawkins attended the hearing and provided oral evidence. He was represented by Mr KJ Casey, Advocate with the Oatley/Belmore/Customs House Returned Services League Sub-Branches. The Respondent was represented by Mr R Wallis, Solicitor. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1-T19).

Service History

Mr Hawkins served in the Royal Australian Navy from 9 April 1971 to 27 July 1974. His defence-service was from 7 December 1972 to 27 July 1974. Mr Hawkins received an 'Honourable Discharge' (medically unfit) on 27 July 1974 (T3, p9; T13, p67).

Issues

There are a number of issues to determine in this matter. A threshold issue is whether or not the injuries of multiple fractures of the lower jaw, fracture of the upper jaw and osteoarthrosis of the right knee sustained by Mr Hawkins on 20 July 1973, arose out of or were attributable to defence-service.
If the Tribunal finds that injuries did arise out of or were attributable to defence-service, the Tribunal must then determine whether or not it is reasonably satisfied that the injuries, as claimed, meet the requirement of any relevant Statement of Principles.

Legislation

The relevant legislation in this matter is the Veterans' Entitlements Act 1986 ("the Act").

Section 68 defines "defence-service" as follows:
"68 Interpretation
(1)    In this Part, unless the contrary intention appears:
          …
defence-service means:
(a)continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and
(b)       in the case of a person who:
(i)was rendering continuous full-time service as a member of the Defence Force immediately before the commencement of this Act;
(ii)continued so to render continuous full-time service until and including the day immediately before the terminating date; and
(iii)was, immediately before the terminating date, bound to render continuous full-time service as such a member for a term expiring on or after the terminating date;
includes the continuous full-time service rendered by the person as a member of the Defence Force on and after the terminating date and before:
(iv)the expiration of that term or, if that term is deemed to have been extended by subsection (4), (5) or (6), the expiration of the extension of that term; or
(v)the lawful termination of the person's service as a member of the Defence Force otherwise than by reason of the expiration of the term for which the person is bound to serve;
whichever occurs first; and
…"

Section 69 of the Act deals with the application of Part IV to members of the Forces. As relevant it provides:
"69 Application of Part to members of the Forces
(1)       Subject to this section, where a person:
(a)has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or
(b)is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date;
this Part applies to the person:
(c)       if the person:
(i)has served on continuous full-time service as a member of the Defence Force after 6 December 1972; and
(ii)has, whether before or after that date, completed 3 years' effective full-time service as such a member; or
(d)       if:
(i)the person has served as a member of the Defence Force under an engagement to serve for a period of continuous full-time service of not less than 3 years; and
(ii)the person's service as such a member was terminated before the person had completed 3 years' effective full-time service as a member of the Defence Force, but after 6 December 1972, by reason of the person's death or the person's discharge on the ground of invalidity or physical or mental incapacity to perform duties; or
…"

Section 70 of the Act defines eligibility for pension. As relevant it provides:
"70 Eligibility for pension under this Part
(1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b)a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member—pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
…
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence-service, or peacekeeping service, as the case may be, of the member;
(b)subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence-service or peacekeeping service of the member but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty; or
(c)the death is to be deemed by subsection (6) to be defence-caused, the injury is to be deemed by subsection (7) to be a defence-caused injury or the disease is to be deemed by subsection (7) to be a defence-caused disease, as the case may be; or
(d)the injury or disease from which the member died, or has become incapacitated:
(i)was suffered or contracted during any defence-service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence-service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence-service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
…
(7)Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence-service or peacekeeping service, as the case may be, or but for changes in the member's environment consequent upon his or her having rendered any such service:
(a)if the incapacity of the member was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member; or
(b)if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act.
…"

Section 119 of the Act provides:
"119 Commission not bound by technicalities
(1)       In considering, hearing or determining, and in making a decision in relation to:
          (a)       a claim or application;
(b)a review, under Division 16 of Part IIIB, of a decision of the Commission with respect to a pension or qualifying service;
(ba)a review, under Division 16 of Part IIIB, of a decision of the Commission under Part IIIAB (pension bonus); or
(c)a review, under section 31, of a decision of the Commission with respect to a pension under Part II or IV or an attendant allowance under section 98;
(d)the suspension or cancellation, under subsection 31(6), of a pension under Part II or IV or an attendant allowance under section 98, the decrease in the rate of such a pension or allowance under that subsection or the increase in the rate of such a pension or allowance under subsection 31(8);
(da)a review, under Division 7 of Part IVA, of a decision of the Commission with respect to an advance payment of an amount of pension;
(e)       the suspension, cancellation or variation of a pension; or
(ee)a review, under subsection 115(1), of a decision of the Commission in respect of an application for an allowance or benefit specified in that subsection;
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
…"

The standard of proof to be applied in relation to Mr Hawkins' defence-service is that of reasonable satisfaction which is covered by subsection 120(4) of the Act. The Tribunal is therefore required to decide whether, on the balance of probability, his conditions of osteoarthrosis of the right knee, multiple fractures of the lower jaw and fracture of the upper jaw were defence-caused. Subsection 120(4) of the Act as relevant states:
"(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…"

The Tribunal is required to decide matters to its reasonable satisfaction in accordance with any Statement of Principles issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act. This requirement is dealt with under section 120B of the Act, which as relevant provides:
"120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war-service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence-service (other than hazardous service) rendered by a member of the Forces.
Note 1:   Subsection 120(4) is relevant to these claims.
Note 2:   For hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)       has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)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 and some particular service rendered by the person; and
(b)       there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)       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.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)       the kind of injury suffered by the person; or
          (b)       the kind of disease contracted by the person; or
          (c)       the kind of death met by the person;
as the case may be.
…"

Statement of Principles

The relevant Statements of Principles in this case are:
(a)Instrument Number 12 of 1994 as amended by 220 of 1995 concerning Fracture.
(b)Instrument Number 42 of 1998 as amended by Instrument Number 20 of 1999 concerning Osteoarthrosis.

Background

The following information is provided by way of background and the facts contained within are not in dispute.

Mr Hawkins was born on 13 February 1955. He attended school to the NSW School Certificate level.
Mr Hawkins is married with a teenage son and daughter.
Mr Hawkins joined the Royal Australian Navy when he was approximately 16 years of age, serving between 9 April 1971 to 27 July 1974. During this period, Mr Hawkins undertook a submarine course in the United Kingdom in HMS DOLPHIN, Southport, England, between 7 June 1973 and 12 September 1973.
Following discharge from the Navy, Mr Hawkins worked for the Department of Main Roads as a steel bender and also driving cranes. He is currently employed as a crane driver/dogman (T15, p90).
On 12 November 1974, Mr Hawkins made a claim for pension for the condition of "infected fluid right knee" (T7, p44). On 16 October 1975, the NSW Repatriation Board refused the claim for the condition diagnosed as recurrent synovitis, right knee. Synovitis is an inflammation of the synovial membrane of the knee and may be due to injury, associated with osteoarthritis, gout, rheumatoid arthritis or due to an infection. It may occur as a systemic ailment or may occur in association with ulcerative colitis. The Repatriation Board noted that this condition had occurred as pain and swelling, which began spontaneously in June 1974, noting a history of injuries three years earlier. The Repatriation Board noted service medical documents specifically dated 28 June 1974, which recorded an "injury 3 years ago" and also that when Mr Hawkins was medically examined on 3 February 1975, the Medical Report stated that he had no known trauma to the knee. The claim was refused because in the Repatriation Board's opinion, recurrent synovitis had not arisen out of and was not attributable to Mr Hawkins' service (T7, p45).
On 25 September 1998, Mr Hawkins lodged a claim for Disability Pension in respect of "multiple facial fractures" which he stated commenced on 20 July 1973 and "right knee" which Mr Hawkins believed could be associated with his injury, also sustained on 20 July 1973 (T8). Mr Hawkins wrote in this claim:
"The injury sustained by myself was the result of a fall from the second floor of the Wolfe Block H.M.S DOLPHIN Southport England…
No injury to right knee at time of enlistment. Believe injured while at H.M.S DOLPHIN (folio 26) Repatriation Department Medical History Sheet form MF9A folio 8 dated 3-2-75…from G.P. who considers I have cartilage trouble. Last x-ray June/July 1974" (T8, p49)

On 15 February 1999, the Commission refused Mr Hawkins' claims diagnosed as multiple fractures of the lower jaw, fracture of the upper jaw and osteoarthrosis of the right knee. The Commission noted that the injury sustained occurred early in the morning after Mr Hawkins had been asleep and considered that this indicated that he was not on duty at the time. Further referring to the Statement of Principles concerning Fracture, the Commission decided that whilst there was trauma to the upper and lower jaw, the trauma did not arise out of the performance of eligible service duties and therefore was not due to eligible service. In relation to the condition of osteoarthrosis of the right knee, the Commission decided that there was no evidence of direct trauma to Mr Hawkins' right knee during eligible service (T3, p3-5).
On 30 September 1999, the Board affirmed the Commission's decision noting that pursuant to subsection 70(7) of the Act, the accident of Mr Hawkins falling from a second floor window at HMS DOLPHIN on 20 July 1973, was not as a result of his posting there but was "a circumstance of his own life" (per Davies J, in Holthouse v Repatriation Commission (1982) 1 RPD 287). In reaching this view, the Board found that the accident did not arise out of nor was attributable to Mr Hawkins' defence-service (T15).

On 22 November 1999, Mr Hawkins made an application for review to the Tribunal (T1).

Evidence of Mr Hawkins

Mr Hawkins described that whilst he was in England, attending a naval submarine course, he suffered an injury whereby he literally fell out of a second storey window at the naval accommodation where he was based. He could not remember the exact date though the Tribunal was able to ascertain this from the T documents. Mr Hawkins stated that he had gone to bed at about 10 or 11 PM and the next thing he knew he was outside two floors down on the ground and "bleeding". He stated there was blood pouring from his jaw and he then sought help by going upstairs. Mr Hawkins recalls being given an injection and then being put on a stretcher and taken to hospital. The next thing he remembers is approximately four weeks after being in hospital. Mr Hawkins stated that he was hospitalised for five weeks and during this period he had three operations, principally to his jaw. He was unable to get out of bed, he thought, until after the second operation.
In hospital, Mr Hawkins described being very sick, weak and feeling "sorry for myself". He was frustrated that he could not do anything. When Mr Hawkins was eventually allowed out of bed, he recalls being very unsteady on his feet. Mr Hawkins could not specifically recall whether there was any particular pain in his left or right side and though remembering that he had a limp, could not recall which side this was on. Mr Hawkins told the Tribunal that he was taken from hospital in England to HMAS PENGUIN in Australia where his treatment continued.
Mr Hawkins told the Tribunal that he was not on duty the night of the accident, though he was on duty every fourth night. Mr Hawkins further stated that he was staying in HMS DOLPHIN because the participants in the course were encouraged to stay on the base. He believed that he could have applied for leave though he did not do so.
On the night in question, Mr Hawkins stated that he had had one or two pints of beer before going to bed but was certainly not inebriated. He has no memory of falling out of the window or any events, which might have preceded it. He had not previously had any problems that he was aware of in terms of sleep walking. He also stated that he was not trying to commit suicide.
In relation to the current problems he has as a result of the fractures of his lower and upper jaws, Mr Hawkins noted in his claim that he has become sensitive to hot and cold liquids and food. He cannot eat well-cooked meat any longer as his jaw and teeth ache. Mr Hawkins also attributes his "rotting and breaking" teeth as a direct result of his injuries. The deteriorating condition of his teeth continues to make eating difficult for him. He noted that he has facial scarring and scar tissue inside his mouth. It is difficult for him to shave at times (T8, p51).
In relation to his right sided knee problems, Mr Hawkins said that there have been a number of diagnoses of this condition, including synovial infection, synovial fluid on the right knee leading to synovitis and also osteoarthrosis. Mr Hawkins stated that he first noted the problem with the right knee when in HMAS PENGUIN. He was told he had an infection of the knee causing a build up of fluid. He was on crutches for three weeks as a result of this problem. Mr Hawkins could not recall any particular accident to his knee apart from falling out of the window when in HMS DOLPHIN.
Mr Hawkins noted that he played a great deal of sport during his naval career but did not recall any specific sporting injury or trauma.
After initial treatment of the right knee in 1974, the problem cleared up "to a certain degree" but would recur from time to time.
Mr Hawkins stated that his work as a steel bender and crane driver did not result in any trauma or injury to his right knee. Mr Hawkins told the Tribunal that this work was not physical, he still works as a crane driver and does not consider that the duties of this position impact upon his knee.
Currently, the treatment for his osteoarthrosis of the right knee is provided by taking the medication "Panadol" and bandaging his knee. He has had no surgery or treatment from an Orthopaedic Surgeon. For some considerable time, he has attended his General Practitioner for any concerns that he has with regard to his right knee. Mr Hawkins recalled that some 18 months to two years ago he had consulted an Orthopaedic Surgeon, Doctor Wong, who had injected Mr Hawkins' right knee.

Medical Evidence

Clinical inpatient notes record that Mr Hawkins was admitted to a British Military Hospital on 20 July 1973 and discharged on 10 September 1973. The admission related to a 30-foot fall from a window in Mr Hawkins' mess in HMS DOLPHIN. In hospital, it is noted that Mr Hawkins was "…examined clinically and radiologically ". On admission, Mr Hawkins stated that he did not lose consciousness and had pain in his face/jaw and pain in his right elbow and left knee. Mr Hawkins was noted by clinical staff to be cooperative. His condition was described as having multiple fractures of the mandible and severely displaced compound fracture of the maxilla. There were also soft tissue injuries around the fractures. Mr Hawkins was cared for in intensive care with specific head injury care. He was administered penicillin (T3, pp 17, 18).
The notes record no psychiatric examination was undertaken at the initial admission or soon afterwards but questions were asked and recorded in the clinical notes as to the causation of the accident. It was noted that Mr Hawkins had three operations under general anaesthetic, including wiring of his jaw and tooth removal as well as repositioning and wiring of bones from his chin. He was also noted to be jaundiced for a period of five days (T3, p 21).
Consideration of the various service medical reports indicate that there was no suggestion that the consumption of alcohol could have lead to the injuries, although Mr Hawkins was noted to have admitted to having two pints of beer before going to bed (T3, p 19).
The Tribunal notes that Mr Hawkins arrived back in Australia from England on 12 September 1973 and he continued his treatment at RANH PENGUIN. Following tests, Dr L Rail, Consultant Neurologist, reported on 28 September 1973, at RANH PENGUIN, that there were no neurological abnormalities or any abnormalities detected by E.E.G.. Dr Rail concluded that cause of Mr Hawkins' fall was "obscure" (T3, p 23).
On 31 October 1973, again at HMAS PENGUIN, Dr P Gill, Psychiatrist, opined:
" 1.It is probable true (sic) antero grade amnesia occurred. He himself states he was vague with fluctuant memory for 2-3 days after.
2.Somnambulism is unlikely in view of the absence of previous history, and difficulty involved in manoeuvres as per description of area. Further ref 17(c) positive motivation must have been required.
3.Denial must present to some degree as he claims no difficulties at the time with others, but the evidence shows he was unpopular and under pressure.
4.If we accept the report as is this leaves the possibility that the act was deliberate and self-destructive, ie. suicidal, the precipitating factors being lost by a combination of organic amnesia and denial at conscious or unconscious. I am still surprised no psychiatrists saw him at the time and there is certainly no depression now, i.e. pure surmise.
Thus cannot exclude the possibility of recurrence if he was the only agent hence suitability for service doubtful, as suspect somnambulism in absence of any other facts." (T3, pp 24, 25).
On 24 April 1974, again at RANH PENGUIN, Dr Gill concluded:
"… In the light of available facts therefore the episode was either;
a)self destructive with motives blocked by antero grade amnesia or denial reinforced by time lapse.
b) Somnambulism despite absence of previous sleep walking.
The combination of Hawkins' own indifference and the above conclusions make it impossible to guarantee there would be no recurrence.
Probable final diagnosis Somnambulism.
I would consider him unsuitable for further service." (T3, pp 29, 30)

On 26 June 1974, Mr Hawkins reported unexplained pain and swelling in his right knee for five days. An X-ray taken on 27 June 1974, indicated no bone abnormalities (T3, p 10). A report two days later by a naval Orthopaedic Surgeon noted that there was pain in right knee starting a week ago. There was no injury, mild effusion, a full range of movement and there was an injury some three years ago. Mr Hawkins was advised to continue antibiotics, Ampicillin, with a review on 9 August 1974 (T3, p 11).
A medical history taken on 3 February 1975, by a Departmental Medical Officer concerning Mr Hawkins' painful right knee, noted that there was "no known trauma to knee". The report noted pain on walking and that it arose if Mr Hawkins was on ladders, which he was required to negotiate at work and also it arose when inspecting bitumen tracks. The Departmental Medical Officer noted that the local doctor considered that the problem was "cartilage trouble" (T4, p 35). Further investigation was recommended to be undertaken by an Orthopaedic Surgeon on 17 June 1975. Dr PJ McGrath noted that about 15 months ago, Mr Hawkins had a painful right knee which became swollen, the knee was treated by a naval doctor as it was considered to be infected and Ampicillin was prescribed; crutches were also provided and the problem settled down. Two months after discharge, Dr McGrath recorded that there had been pain associated with intermittent swelling. The condition was aggravated by walking up hills. Dr McGrath concluded on 24 June 1975, a final diagnosis of recurrent synovitis of the right knee (T5, p39).
On 9 December 1998, Dr J T-M Wong, Orthopaedic Surgeon, reported that Mr Hawkins' right knee problem is diagnosed as mild degenerative changes in his right knee with possible lateral meniscal tear. X-rays taken on 7 December 1998, revealed early osteophytes of the right knee. Dr Wong noted that he had examined Mr Hawkins on 8 December 1998, and that Mr Hawkins had complained of intermittent pain and swelling in the antero-lateral aspect of his right knee since 1974. Dr Wong reported that the onset was gradual and there was "no specific injury to his right knee". Dr Wong noted that Mr Hawkins had played a lot of sport because he was required to do so as part of his naval service and opined that the onset of the right knee symptoms "might have been related to his Service" (T10, p 57).
Dr K Koller, Psychiatrist, reported on 23 July 1999, following an examination of Mr Hawkins on 22 July 1999, that he appeared in "good normal mental health". In relation to Mr Hawkins' work performance and interpersonal and family relationships, Dr Koller opined that he "is productive and secure". Dr Koller further noted that Mr Hawkins' cognitions are within normal and acceptable levels. Dr Koller concluded that Mr Hawkins' "emotional expressions betray no disorder" (T15, p 91).

Submissions

Mr Casey submitted that Mr Hawkins had experienced an unexplained accident while living in naval accommodation in HMS DOLPHIN in Southport, England. At the time, Mr Hawkins was attending a naval submarine course as part of his naval service and was living in naval accommodation which, Mr Casey submitted, involved Mr Hawkins being subject to the usual naval discipline requirements and conduct.
Mr Casey submitted that the fall of 30 feet from Mr Hawkins' mess window to the ground below, occurred on defence-service. Mr Hawkins' attendance at the submarine course in England was a requirement of his defence-service and he was required to live in the naval accommodation. In Mr Casey's submission, these circumstances were similar to that of him being at sea and he was subject to the usual naval service requirements and discipline.
Referring to Holthouse v Repatriation Commission (supra), Mr Casey contended that the principles arising out of that case did not apply to Mr Hawkins' circumstances. Mr Holthouse had been moving a potplant when relocating to another home. Whilst Mr Casey acknowledged that Mr Holthouse was exercising choice in the movement of the potplant, he submitted that Mr Hawkins, however, made no such choice. He was on service as required in order to attend the submarine course in England. The fact that he was not officially on duty on the night of the accident was irrelevant, Mr Casey contended, given the circumstance of Mr Hawkins being required to live in naval accommodation whilst the course was conducted. Mr Casey submitted that Mr Hawkins would not have sustained the injury if he had not been in naval accommodation attending, as a requirement of his service, a submarine course.
Mr Casey further referred the Tribunal to Re Burns and Repatriation Commission [1995] AATA 10119 , where Mr Burns had been off duty but had gone to the aid of a naval colleague who was involved in a fight. In that decision, Mr Burns was found by Senior Member Handley to have been on duty. Mr Casey thus contended that the reasoning in Burns' case is relevant to Mr Hawkins' circumstances.
Mr Casey submitted that the only issue in dispute is whether, for the purposes of subsection 70(7) of the Act, Mr Hawkins satisfies the condition that his incapacity is due to an accident which would not have occurred but for his having rendered defence-service or but for changes in his environment consequent upon him having rendered such service. Referring to subsection 70(7)(a), Mr Casey submitted that Mr Hawkins' incapacity was due to the accident of him falling 30 feet to the ground from his mess window and that accordingly, the incapacity should be deemed to have arisen out of this accident. Therefore, the injuries suffered should be deemed, Mr Casey further submitted, to be defence-caused injuries.
Mr Casey noted that naval records showed no explanation for the fall. While there was an examination of the possibilities of sleep walking or attempted suicide, there was no evidence to support either of these being correct. In all of these circumstances, Mr Casey contended that Mr Hawkins was "on duty" at the date and time of the accident and he had been sleeping in naval accommodation under naval discipline. He could have been called upon to perform duty at any time and refusal to do so would have resulted in his arrest and being charged with an offence under naval discipline.
Referring to the Statement of Principles concerning Fracture, Instrument Number 12 of 1994, as amended by Instrument Number 220 of 1995, Mr Casey submitted that the relevant factor is factor 1(a) which states:
"(a) trauma at the site and at the time of clinical onset of the fracture;…"

Mr Casey submitted that clearly there had been a fracture as reported in the naval medical documents and that the fractures of the lower and upper jaw were a direct result of Mr Hawkins falling out of the mess window.
In relation to osteoarthrosis of the right knee, Mr Casey noted that there was a problem with Mr Hawkins' left knee which had been reported by hospital clinicians at the time of Mr Hawkins' admission to hospital immediately following the accident. Mr Casey submitted that the fact that the right knee osteoarthrosis occurred sometime later after the actual injury did not detract from the fact that Mr Hawkins' fall from the window not only caused trauma to his left knee but also his right knee.
Mr Casey submitted that the Tribunal should not penalise Mr Hawkins for not remembering any specific acute symptoms and signs of pain or restriction of movement.
The relevant factor in the Statement of Principles concerning Osteoarthrosis, Instrument Number 42 of 1998 as amended by Instrument Number 20 of 1999, is factor 5(h).

Factor 5(h) states:

"(h) suffering a trauma to a joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint;…

"trauma to a joint" means a discrete joint injury that causes the
development within 24 hours of the injury being sustained, of acute
symptoms and signs of pain, swelling, tenderness, and altered mobility or
range of movement of that joint. These acute symptoms and signs must
last for a period of at least ten days following their onset; save for where medical
intervention for the trauma to that joint has occurred, where medical intervention
involves either:
(a)immobilisation of the joint or limb by splinting, sling or similar external agents; or
(b)injection of corticosteroids or local anaesthetics into that joint; or
(c)aspiration of that joint; or
(d)surgery to that joint
…"

Mr Casey submitted that Mr Hawkins meets the definition for trauma for his right knee and referred the Tribunal to the proximity of the right knee symptoms, approximately one year after the fall from the window. Mr Casey submitted that there is not much difference, only a matter of "letters" between left and right and the Tribunal should thus accept that injury to the left knee which was reported as a result of the fall from the window, could also be applied to an injury to the right knee, which is the subject of claim.
Mr Casey concluded that in all the circumstances the Tribunal should set aside the decision under review and accept that the conditions of multiple fracture of the lower jaw, fracture of the upper jaw and osteoarthrosis of the right knee, were defence-caused.
Mr Wallis, for the Respondent, submitted that at the time of the accident of falling out of the mess window, Mr Hawkins was subject to the provisions of section 70 of the Act for defence-service and in particular subsection 70(5)(a), which provides that an injury shall be defence-caused if it arose out of or was attributable to any defence-service. Mr Wallis contended that the fundamental issue for the Tribunal is whether or not Mr Hawkins' injuries arose out of or were attributable to defence-service. There must be a clear causal connection.
Mr Wallis referred to Holthouse v Repatriation Commission (supra) where the circumstances were that Mr Holthouse was not on duty and had moved a potplant resulting in his incapacity. In Holthouse v Repatriation Commission (supra), Davies J referred to Wedderspoon v Minister of Pensions (1947) 1 KB 562 at 563-4. In that case, Denning J concluded:
"The cases show that when the cause of the death or disablement lies in the man's own personal or domestic sphere, and the war-service does no more than provide the circumstance in which the cause operated, it is not attributable to war-service."

Mr Wallis contended that the circumstances of Mr Hawkins' injuries were not in the course of, nor arose out of, his service. Nor could it be fairly said, Mr Wallis submitted, that but for the fact of the particular posting to HMS DOLPHIN, Mr Hawkins would not have suffered the injuries, which he suffered. Mr Wallis acknowledged that Mr Hawkins was away from Australia and resident in HMS DOLPHIN. Mr Wallis contended however, that Mr Hawkins' assertion did not provide the necessary nexus between service and the incident he relied upon. The Respondent submitted that Mr Hawkins was not on duty at the time of the incident, in fact he was asleep just prior to the accident and thus could not be said to have been executing his duties. Even though Mr Hawkins might have been on call, he was not on duty when asleep, Mr Wallis submitted.
The Tribunal was referred to Repatriation Commission v Bendy (1989)18 ALD 144, which dealt with whether or not Mr Bendy's service in Darwin caused the diseases of solar hyperkeratoses and basal cell carcinoma. In that matter the court noted that:
"Events may be a contributing cause of an injury or incident if they are events in the absence of which the injury or evidence [sic] would not have occurred, or would not have occurred as and when it did. …
Of course, the causes of a disease may involve complexities not present in the causes of that injury or incident, when parameters of time and location may provide guidance. … An issue of contributing cause should be approached in a practical, commonsense way. Nevertheless, if, as in the present case, it could not be said of the war-service that, without it, the disease would not have developed, then it may be difficult to conclude the war-service was a contributing cause thereof ".

The court in Repatriation Commission v Bendy (supra) in its consideration referred to Repatriation Commission v Law (1981) 147 CLR 635 where at 648, Aickin J accepted that it was sufficient if war-service was one of a number of causes of a disease provided that it was a contributing cause. The principle to be noted is that reference to materiality serves to make it clear that the contribution required is a contribution of a causal nature and Mr Wallis emphasised this to the Tribunal.
Mr Wallis contended that Mr Hawkins was not exposed to any particular risk as a result of his service. The accident, which occurred in England, had no clear explanation as to its causation. Mr Wallis further submitted that there was no contribution or material contribution by service to the accident and the subsequent injuries suffered by Mr Hawkins. There was no evidence of a breach of duty of care by the Navy and in fact, the accident was unforeseeable by the Navy. Mr Wallis submitted that the Respondent could not find, in the circumstances of this case, any negligence on the part of the Navy.
Further, Mr Wallis submitted that if the Tribunal determined that there was no jurisdictional issue in relation to Mr Hawkins being on defence-service at the time of his injuries, then in relation to the claimed conditions of multiple fractures of the lower jaw and fracture of the upper jaw, the Respondent agreed with the diagnosis of these conditions. Referring to the relevant Statement of Principles concerning Fracture, Instrument Number 12 of 1994 as amended by Instrument Number 220 of 1995, Mr Wallis further agreed that Mr Hawkins met factor 1(a) concerning trauma to the site at the time of the clinical onset of the multiple fractures. He submitted that the correct date of effect for Disability Pension being paid is 25 June 1998.
Turning to consider the issue of osteoarthrosis of the right knee, Mr Wallis, at the outset, submitted that the diagnosis of this condition was somewhat problematic. He contended that the claimed condition may not have been properly diagnosed and that, noting the various diagnoses over time, the condition may not have been properly investigated. There has been no further medical evidence to clarify the issue apart from the report by Dr Wong and the diagnosis by the Commission of the right knee problem as osteoarthrosis of the right knee.
If the Tribunal accepted the diagnosis of osteoarthrosis of the right knee, Mr Wallis submitted that Mr Hawkins' circumstances do not meet factor 5(h) of the relevant Statement of Principles, namely Instrument Number 42 of 1998, as amended by Instrument Number 20 of 1999. At the time Mr Hawkins reported the accident of falling out of the mess window in July 1973, the injuries recorded in hospital clinical notes show only injury to the left knee, with no mention of any injury to the right knee. Referring to the definition of trauma for the Osteoarthrosis Statement of Principles, Mr Wallis submitted that Mr Hawkins had not reported any acute symptoms and signs of pain, swelling, tenderness, altered mobility or range of movement, which had lasted for a period of at least 10 days. This contention is supported at T3, p 17 , which records that on the same morning as the accident, Mr Hawkins was examined in hospital "clinically and radiologically" and noting also that Mr Hawkins had stated that he did not lose consciousness and had pain in his face/jaws, right elbow and left knee. While Mr Wallis accepted that Mr Hawkins may not have been competent at the time of his injuries to report all of the symptoms and signs when he was in hospital, it was a fact that he was medically examined and the medical examination was extensive, frequent and involving both clinical and radiological tests. Mr Wallis submitted that in such circumstances any injury or trauma to the right knee would have been apparent.
The Tribunal was referred to Harris v Repatriation Commission [2000] FCA 873 in which the court, in relation to assessing the trauma factor for the claimed condition of lumbar spondylosis for the reasonable hypothesis standard of proof, concluded that the definition of trauma had to be met. The court concluded in relation to satisfying the trauma definition that:
"Altered mobility of which a person is unaware (even given the stresses and preoccupations associated with a patrol) cannot be said to be suggestive of an "acute sign or symptom" of that altered mobility. Dr Stone's evidence apart, all that there was to go on in the material before the Tribunal were Mr Harris's inability to recollect whether he suffered altered mobility and his actions immediately after the incident which were not themselves suggestive of any such altered mobility…
…The matters relied upon by the Tribunal in refusing to assume the existence of altered mobility…point inescapably to the conclusion that it could not properly on the material before it have made the assumption that Mr Harris suffered acute signs and symptoms of altered mobility."

In Arnott v Repatriation Commission [2000] FCA 1336 the court, in dealing with a definition in the relevant Statement of Principles, noted that "acute" in the definition of trauma contemplates symptoms which are severe or significant.
The Tribunal was further referred to Connors v Repatriation Commission [2000] FCA 783, in which it was concluded that each link in a particular factor must be satisfied. In Mr Connors' case, he was claiming lumbar spondylosis as a result of suffering a trauma to his lumbar spine. Mr Connors' evidence was that he could not recall suffering pain in his lumbar spinal region after having a fall. The court decided that it was plainly open to that Tribunal to decide that the hypothesis advanced by Mr Connors was not upheld by the Statement of Principles since there was no material pointing to the existence of pain following the injury, which was an essential element of the Statement of Principles definition of trauma to the lumbar spine.
Mr Wallis submitted that the Tribunal had no discretion available to it in terms of the issue of satisfying the trauma definition as it applied to factor 1(h) of the relevant Statement of Principles. Therefore, it was not open to the Tribunal to be reasonably satisfied, on the evidence, that Mr Hawkins' osteoarthrosis of the right knee was defence-caused. Mr Wallis submitted that in order to satisfy the trauma factor, Mr Hawkins would need to be aware of pain, altered mobility and range of movement as specified in the definition of trauma. It was not possible to assume that he had these symptoms, Mr Wallis submitted.

Findings

The Tribunal has reached a decision in this matter, taking into account the available documentary and oral evidence, the submissions, legislation and case law.
Mr Hawkins was cooperative in the provision of his evidence, though it is clear from the Tribunal's experience of Mr Hawkins and the various medical and other reports, that Mr Hawkins' memory is incomplete and vague in the recall of events surrounding the accident on 20 July 1973. While acknowledging these difficulties, the Tribunal considered that Mr Hawkins was a credible witness and there were no issues raised by the Respondent about Mr Hawkins' credibility.
A threshold issue for the Tribunal to determine is whether or not pursuant to subsections 70(5)(a) and (c) and subsection 70(7) of the Act, Mr Hawkins' injuries to his jaw and knee arose out of defence-service.
Various courts and tribunals have considered this issue of defence-caused incapacities and/or diseases. It is necessary, however, before turning to a consideration of the case law, to establish at this stage relevant findings of fact.
The Tribunal is of the view that Mr Hawkins was in the United Kingdom in HMS DOLPHIN because of a requirement of his naval service that he undertake a submarine training course. Mr Hawkins was living at a British naval base. The Tribunal accepts that Mr Hawkins was on duty every fourth night but was not on active duty in the early hours of 20 July 1973, when he fell from his mess window. All evidence points to Mr Hawkins having been asleep at the time, having retired to bed at approximately 10 or 11 PM on 19 July 1973. Although there is evidence that Mr Hawkins had up to two pints of beer before retiring, there is no evidence on the material before the Tribunal that he was inebriated or that the fall from the window was occasioned by excessive consumption of alcohol. Other possibilities investigated by the British naval medical personnel at the time of the accident included the possibility of suicide, which was eventually discounted and also the issue of somnambulism, which seemed to be the preferred but not a firmly supported view as to the cause of the fall. There certainly is recorded in the documents evidence that Mr Hawkins was not previously a sleep walker, nor has he been since the accident. There is also no suggestion on the material before the Tribunal that Mr Hawkins was pushed from the window. On all of the evidence, it is possible that somnambulism was the precipitating cause of the fall from the window although the Tribunal considers that the injuries arose out of, in fact, a largely unexplained accident.
The Tribunal accepts that as a result of his defence-service, Mr Hawkins had to attend a submarine course in the United Kingdom. The Tribunal finds that if Mr Hawkins had not been on the base undertaking the particular course and living in that particular mess on the second floor, he would not have been placed in a position of having the risk of falling out of the second floor window.
Mr Casey submitted that Mr Hawkins was subject to navy discipline and on call while on the base. The Tribunal concurs with the view that Mr Hawkins' circumstances were similar to being on a ship at sea where, as is a usual human requirement, sleep is taken on a regular basis and that while at sea, sailors while being technically off duty for a period of rest, are nonetheless on alert depending on the circumstances.
Further, Mr Hawkins' evidence was that he was expected to live in HMS DOLPHIN though he believed that there was a possibility he could apply for leave. He did not do so because he considered that the authorities encouraged and preferred that the officers remain on naval premises.
Considering the case law, the question which arises is "was Mr Hawkins exposed to a special risk on service?". In Holthouse v Repatriation Commission (supra), the court noted that the cause of Mr Holthouse's incapacity was his moving a potted plant from one place in his home to another. The court noted further that this was a matter which lay within the sphere of Mr Holthouse's personal life and the defence force had no concern whether Mr Holthouse had a potted plant or indeed if he moved it. The court in that matter pointed out that the general distinction between a person's personal life and employment is a distinction inherent in many areas of legislation including the Repatriation Act.
Referring to subsection 70(5)(a) of the Act which deals with incapacity arising out of or attributable to defence-service, the Tribunal notes Re Buckfield and Repatriation Commission (1993) 29 ALD 884 in which Deputy President McMahon concluded that the phrase "arising out of" signified a causal relationship between an injury and employment, while the expression "in the course of" involved a temporal relationship only. The Tribunal thus takes the view that Mr Hawkins must show that the injuries he sustained were caused or in a material way contributed to by his defence-service. The service need not be the only cause but must be the substantial or material cause.
While the Tribunal found that Mr Hawkins was asleep and therefore not on active defence duties, it further finds that Mr Hawkins was required to be on the base because of his attendance at the course. Attendance at the course was part of Mr Hawkins' defence-service requirements. Mr Hawkins could quite easily have been attending the course in Australia and participating each day in the course and then returning to his home at night. Mr Hawkins could in those circumstances have suffered the same unexplained accident in his home and this circumstance, prima facie would not have involved being on defence-service.
The clear and distinguishing difference between attending a course from his home in Australia and attending the course in England, which entailed being located on a naval base, is that in the United Kingdom, participation in the course involved him sleeping on a base which had its mess located two floors up.
Accordingly, the Tribunal determines that a substantial cause of the injuries suffered by Mr Hawkins was the fact that he was required to attend the submarine course in naval accommodation in the United Kingdom. The Tribunal has reached its determination, assisted by the reasoning in Re Burns and Repatriation Commission (supra) and Repatriation Commission v Law (supra).
The Tribunal finds that the accident Mr Hawkins suffered arose out of or was attributable to defence-service. A connection exists between the service and the accident and its consequences are of a sufficiency and pertinence to be attributed to defence-service. Thus the Tribunal finds Mr Hawkins suffered an injury arising out of or attributable to his defence-service as provided for in subsection 70(5)(a) of the Act. Further, the Tribunal concludes that pursuant to subsection 70(7) of the Act, the incapacity arose out of an accident, which would not have occurred, but for Mr Hawkins rendering defence-service.
Having found that injuries sustained by Mr Hawkins arose out of or were attributable to an accident on defence-service, the Tribunal is required to apply section 120B of the Act in reaching a decision on the claimed conditions to its reasonable satisfaction in accordance with any Statement of Principles.
In relation to the condition of osteoarthrosis of the right knee, the relevant Statement of Principles is Instrument Number 42 of 1998 as amended by Instrument Number 20 of 1999.
There are, however, a number of difficulties for the Tribunal in this matter. Firstly there is the issue of diagnosis. The condition has been diagnosed variously as an infection of the right knee, synovitis of the right knee and osteoarthrosis of the right knee. The medical impairment assessments completed by General Practitioner, Dr AK Kapoor, lodged on 23 December 1998, refer to the general condition of "right knee condition". Dr Wong, Orthopaedic Surgeon, reports mild degenerative changes to the right knee with possible lateral meniscal tear, having referred to x-ray reports showing early osteophytes. While there is some uncertainty as to the final diagnosis of the condition, given the x-ray report and finding of Dr Wong and the Commission's diagnosis of the claimed knee condition as osteoarthrosis, the Tribunal accepts this diagnosis.
A further difficulty for the Tribunal, however, relates to the actual onset of the osteoarthrosis condition. There is no material to indicate when the clinical onset might have occurred. Having noted these difficulties, but accepting the claimed condition of osteoarthrosis of the right knee occurred sometime between 1974, when first reported and the time of claim on 25 September 1998, a period of 26 years, the Tribunal turned to consider the relevant Statement of Principles concerning Osteoarthrosis and the only factor considered relevant, that of factor 5(h) concerning suffering a trauma to a joint within the 25 year period immediately before the clinical onset.
Mr Hawkins' contention is that the fall from the mess window in HMS DOLPHIN caused considerable trauma to his right knee. Mr Hawkins could not specifically recall pain, loss of mobility or altered range of movement, swelling or tenderness occurring within 24 hours of the injury and lasting for a period of 10 days. The Tribunal accepts that at the time of his admission to hospital he was in all probability not competent to recall a great deal. However, the Tribunal has available to it contemporaneous medical records of Mr Hawkins' admission to hospital in England and a number of subsequent medical reports. At the time of admission, Mr Hawkins was reported to have been conscious and complaining of pain to his left knee. There was no record of pain or other injury to the right knee. Further, Mr Hawkins was examined, as reported, both clinically and radiologically. The evidence available to the Tribunal indicates that there was no mention of pain, swelling or any other indicia of the trauma definition in relation to the right knee. Further, on examination of later service medical records, specifically undertaken during the course of investigation of right knee problems, there are specific recordings of Mr Hawkins stating that he had no trauma to his right knee but noting he had a fall from the mess window in 1973. Mr Hawkins is asking the Tribunal to assume that the fall from the mess window 30 feet to the ground caused him trauma to his right knee.
In coming to a determination in relation to this specific condition, the Tribunal obtained some guidance from Harris v Repatriation Commission (supra) in which it was held that it is not permissible to proceed, for example, on the basis that Mr Hawkins suffered altered mobility from an assumption "arising in the abstract".
The Tribunal also noted Critch v Repatriation Commission (1996) 43 ALD 574 in which the court concluded:
"An assumed fact cannot arise in the abstract. Obviously it is a fact that is reasonably open to be inferred from, pointed to or raised by and therefore permitted by the material before the decision maker to give rise to the hypothesis."
"Using these criteria ensures that the assumed fact is "raised" by the material and can be relied upon as a relevant matter and therefore a "raised fact" in forming an opinion as to the reasonableness of the hypothesis".
Further, in Mr Hawkins' case, the Tribunal must be reasonably satisfied for the purposes of the Statement of Principles that the factor must exist before it can be said on the balance of probabilities that osteoarthrosis of the right knee is connected with the circumstances of Mr Hawkins' relevant service.
There was extensive and intensive medical involvement in Mr Hawkins' care immediately following the accident and for some considerable time later. There is no evidence of trauma to the right knee, as defined, available to the Tribunal in all the material presented to it. Mr Hawkins cannot recall any specific pain although he noted that he was weak, he was limping and he was feeling sick and sorry for himself. There are records of symptoms and signs related to the left knee but not the right knee. Further, there is contemporaneous evidence that in 1974, when the right knee became a problem, that there was no specific trauma at that time. The Tribunal also considered Mr Hawkins' evidence that he was required to play sport during his service but again contemporaneous reports and histories do not indicate any specific trauma arising out of sport.
The Tribunal also considered the application of section 119 of the Act which allows for decision makers to deal with the difficulties of providing evidence to support a claim for a pension or benefit, in relation to injuries of diseases which may have occurred some considerable time ago. The section recognises the special problems of proof arising out of the paucity of records, the frailty of human memory and the length of time which has expired since the precipitating injuries or diseases. Unfortunately, because of the objective medical evidence in this case, the Tribunal finds that it is not able to avail Mr Hawkins of the benefit of section 119.
Accordingly, given the evidence, the Tribunal determines in all the circumstances that Mr Hawkins' fall from the window did not cause a trauma to the right knee as defined in the relevant Statement of Principles. Accordingly, factor 5(h) is not met. The Tribunal examined the remaining factors but could find none raised from the available evidence. The Tribunal is therefore reasonably satisfied on all of the evidence available to it that on the balance of probabilities, osteoarthrosis of the right knee is not connected with the circumstances of Mr Hawkins' defence-service. Having so decided, the Tribunal must affirm the decision under review as it relates to osteoarthrosis of the right knee.

In relation to the conditions of multiple fractures of the lower jaw and fracture of the upper jaw, the Tribunal is satisfied that the diagnoses of these conditions are correct and further finds that the clinical onset of the fractures occurred on 20 July 1973.
The relevant Statement of Principles concerning Fracture is Instrument Number 12 of 1994 as amended by Instrument Number 220 of 1995. Factor 1(a) requires that trauma occurs at the site of the fracture and at the time of clinical onset. Trauma is not defined in this particular Statement of Principles. It is clear that as a result of the fall from the window, Mr Hawkins suffered multiple fractures to his jaws and there was very clear medical and radiological evidence of this. The Tribunal finds that factor 1(a) is met by Mr Hawkins' circumstances and notes that the Respondent does not disagree with this conclusion.
The Tribunal is therefore satisfied that the material before it raises a connection between Mr Hawkins' defence-service and multiple fracture of the lower jaw and fracture of the upper jaw. Accordingly, in all the circumstances and for the reasons set out above, the decision under review in respect of multiple fracture of the lower jaw and fracture of the upper jaw is set aside and in substitution therefor the Tribunal decides that those conditions are defence-caused. The Commission is therefore liable to pay a Disability Pension pursuant to section 70 of the Act from and including 25 June 1998, which is the earliest date, which the Tribunal can set under the Act. The matter is remitted to the Commission in order that the appropriate rate of Disability Pension be assessed.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member.
Signed:         .............[sgnd].................................................................
  Rikka Cullen, Personal Assistant.
Date of Hearing  17 November 2000
Date of Decision  13 February 2001
Representative for the Applicant              Mr KJ Casey, Representative of the Oatley/Belmore/Customs House RSL Sub-Branches
Representative for the Respondent        Mr R Wallis, Advocate and Solicitor