Hill v Repatriation Commission
[2001] FMCA 83
•26 October 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HILL v REPATRIATION COMMISSION | [2001] FMCA 83 |
| VETERANS AFFAIRS – Veterans entitlements – disability pension – appeal from decision of Administrative Appeals Tribunal – whether veteran’s lumbar spondylosis was war-caused – application of wrong Statement of Principles – whether error of law sufficient to allow appeal – whether correct procedure followed under s 120A of Veterans Entitlement Act 1986 (Cth) – meaning of ‘acute symptoms and signs’. |
| ADMINISTRATIVE LAW – Application of s 43(2B) of Administrative Appeals Tribunal Act 1975. |
Repatriation Commission v Keeley (2000) 31 AAR 150
Repatriation Commission v Gorton (2001) FCA 1194
Repatriation Commission v Williams (2001) FCA 1195
Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571
Repatriation Commission v Deledio (1998) 83 FCR 82
Harris v Repatriation Commission (2000) FCA 873
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550 Commissioner of Taxation v Polla-Mounter (1995) 34 ATR 437
Connors v Repatriation Commission (2000) 59 ALD 61
Repatriation Commission v Gosewinckel (1999) FCA 1273
Mason v Repatriation Commission (2000) FCA 1409
Grundman v Repatriation Commission (2001) FCA 892
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Administrative Appeals Tribunal Act 1975
Veterans’ Entitlements Act 1986
| Applicant: | JOHN ASHLEY HILL |
| Respondent: | REPATRIATION COMMISSION |
| File No: | MZ 435 of 2001 |
| Delivered on: | 26 October 2001 |
| Delivered at: | Melbourne |
| Hearing Date: | 14 September 2001 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr D De Marchi |
| Solicitors for the Applicant: | De Marchi & Associates |
| Counsel for the Respondent: | Ms A McMahon |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The appeal is dismissed.
The applicant pay the respondent’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 435 of 2001
| JOHN ASHLEY HILL |
Applicant
And
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant appeals from a decision of the Administrative Appeals Tribunal (“the AAT”) made on 14 March 2001. The appeal is pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”).
The AAT considered a decision of the respondent that the applicant’s lumbar spondylosis was not “war caused” as defined in s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the VE Act”).
It is not in dispute that the applicant does suffer from lumbar spondylosis. The applicant had claimed that this condition was one which should be accepted as “war caused”. He made his claim on
12 May 1998 and that claim was refused by the Repatriation Commission on 17 July 1998. The decision of the Repatriation Commission was affirmed by the Veterans Review Board on
20 September 1999. It was from that decision that the applicant sought review to the AAT.
The applicant had enlisted in the Royal Australian Air Force on
30 July 1952. He rendered “operational service” in Malaya with the RAAF between 4 September 1955 and 1 December 1956. Operational service is defined in s 60 of the VE Act and as indicated no issue was taken in relation to the applicant rendering operational service during the period specified. The applicant worked as an electrician at the barracks. In his claim he alleged that in 1955, whilst performing operational service in Malaya he had suffered injury whilst lifting a heavy electric motor. He claimed that the person assisting him had dropped his end of the motor, which meant that the applicant took the full weight of the motor. In his statement reproduced by the Tribunal, the applicant claimed he then “felt immediate pain across the lower back”. He stated, “The pain did continue for at least 7–8 days, but as far as I can remember I continued with my duties, although I was in pain, but my duties did not involve any more heavy lifting. I did not report this to the RAP as I did not wish to appear to be a ‘sook’.”
The Tribunal had the advantage of hearing evidence from the applicant and medical evidence, after which it decided to affirm the decision under review.
Legislative background
There is no dispute that it was appropriate for the Tribunal to decide this matter in accordance with s 120A of the VE Act. It is common ground in the present case that the Tribunal did make an error of law in the sense that it had applied the wrong statement of principles (SoP). It had applied Instrument No. 165 of 1996 (SoP 165 of 1996) and had done so in accordance with the decision of the Full Court of the Federal Court in Repatriation Commission v Keeley (2000) 31 AAR 150. Since the decision of the Tribunal, the Full Court has delivered two decisions dealing with the issue of which SoP is to apply. I was referred to Repatriation Commission v Gorton (2001) FCA 1194 delivered 29 August 2001 and Repatriation Commission v Williams (2001) FCA 1195, also delivered 29 August 2001. In Gorton’s case, Alsop J stated:
“If the Tribunal, in reviewing a decision, comes to a conclusion in favour of the claimant by first applying the current SoP, the SoP current at the date of the Commission’s decision (now repealed) may not need to be examined; its relevance having fallen away. However, if, by reference to the current SoP, the Tribunal is of the view that the claim should be refused, it should not do so without then assessing the rights of the parties under the accrued right recognised by Keeley; by reference to the repealed SoP. That is not a right of ‘election’. It is a sequential approach mandated by a combination of the Act and the Full Court’s decision in Keeley”.
Hence in the present case, it is conceded that the Tribunal erred in applying SoP 165 of 1996 and should have applied the later Instrument No. 27 of 1999 (SoP 27 of 1999). I shall return to a comparative analysis of the SoPs, but for the present purposes it is sufficient to note that in applying the SoP, the legislation requires that a hypothesis will only be reasonable if it is upheld by the relevant SoP. The task of the Tribunal is to therefore decide on the material before it, whether there is in fact a reasonable hypothesis connecting the injury with the appellant’s operational service (see Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571). Both the parties in the present appeal referred me to the Full Court decision of Repatriation Commission v Deledio (1998) 83 FCR 82, (Deledio) where the Court at pp 97–98 stated:
“At the risk of being repetitious we would re-state the course which the Tribunal is to take in a case, such as the present, (that is one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the “template” to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service [as required by ss 196B(2)(d) and (e)]. If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”
In considering whether the hypothesis is upheld by the SoP, it is noteworthy that paragraph 5 of SoP 27 of 1999 provides a list of factors which it states “must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis, or death from lumbar spondylosis, with the circumstances of a person’s relevant service”. In the present case, the factor relied upon is 5(h) which provides “suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis”. That is identical to factor 5(g) in SoP 165 of 1996 which had been considered by the AAT.
SoP 27 of 1999 provides a definition of “trauma to the lumbar spine” as follows:
“ ‘Trauma to the lumbar spine’ means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a)immobilisation of the lumbar spine by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c)surgery to the lumbar spine.”
The meaning of the words ‘acute symptoms and signs’ which appear in the definition in the later SoP and also in the earlier SoP, was dealt with in the decision relied upon by the Tribunal of the Federal Court in Harris v Repatriation Commission (2000) FCA 873. That was a decision of Finn J, where His Honour held as follows:
“In the present case the minimum factors the SoP identified that could relate lumbar spondylosis to operational service were the suffering of a trauma to the lumbar spine before the clinical onset of lumbar spondylosis which trauma was itself related to the service rendered by the person.
Insofar as the trauma component of those factors is concerned this requires (inter alia) that the injury in question caused the development of `acute symptoms and signs’ of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement. Though the preposition ‘of’ only precedes the word ‘pain’ in the SoP’s definition, I am satisfied that the definition is to be read as if ‘of’ precedes the words ‘tenderness’ and ‘altered’ as well. The applicant has submitted to the contrary contending that the definition is to be read as if it referred to ‘acute’ symptoms and signs of pain and/or tenderness and [meaning ‘together with’] altered mobility’ etc. When one has regard both to the balance of the sentence in which the definition appears (and particularly to the words ‘and where such acute symptoms and signs last for a period of at least one week’) and to what, ordinarily, would be the work done by the preposition ‘of’ in a sentence constructed in the manner of the definition, the definition must be construed as I have proposed. I should add that the construction is the one propounded by the respondent.
The requirement, then, that there be ‘signs and symptoms’ of each of the three stipulated matters necessitates that there be an indication of, or phenomenon evidencing, each: see eg definition, ll of ‘sign’ and that of ‘symptom’ in the Shorter Oxford English Dictionary (‘SOED’). Moreover, given the requirement that the signs and symptoms must be ‘acute’ i.e. that they be sharp or act ‘keenly on the senses’: SOED, ‘acute’; - there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc. As the respondent contends, the definition contemplates a significant injury”.
In upholding the definition of Finn J, the Full Court as noted by the AAT stated:
“The primary judge observed that it was arguable that the AAT should have been prepared to assume for the purposes of formulating a hypothesis connecting the appellant’s service to his current disability that he had suffered altered mobility. But even if that were so, it fell short of a hypothesis that the appellant had suffered acute symptoms and signs of that altered mobility, as SoP No. 105 of 1995 required.”
Grounds of appeal
The applicant relied upon the following grounds of law in support of the appeal:
i)The Tribunal was wrong in law in its interpretation of Repatriation Commission v Keeley. As a result the Tribunal examined and applied the wrong Statements of Principle, Instrument No. 165 of 1996.
ii)The Tribunal was wrong in law in requiring that the applicant describe his pain as “sharp”, “immediately”, after the accident.
iii)The Tribunal was wrong in law in the method it applied the decision of Deledio to the circumstances of the applicant’s claim. The Tribunal required the circumstances to fit the template of the Statements of Principle rather than considering whether the Statements of Principle uphold the hypothesis. The Tribunal was wrong in the application of ss.120(1), (3) and (6).
iv)The Tribunal was wrong in law in its application of Deledio and the methodology to be employed in rejecting material, which supported the hypothesis.
v)The Tribunal was wrong in law in requiring the applicant to adduce evidence, which may have upheld the Statements of Principle.
vi)The Tribunal was wrong in law in requiring that the material raise the hypothesis and that the hypothesis fit the template of the Statements of Principle.
vii)The Tribunal was wrong in law in failing to provide adequate and sufficient reasons for its decision as required by s.43(2B) of the Administrative Appeals Tribunal Act 1975.
Applicant’s submissions
The applicant submitted that the decision under review should be set aside and that the Court should find that the applicant’s lumbar spondylosis was war-caused and the matter remitted to the Administrative Appeals Tribunal for assessment of the pension and alternatively the matter be remitted to a differently constituted AAT to be determined according to law.
In support of the application, it was submitted that the AAT had applied the incorrect SoP. As indicated earlier in this judgment, it is common ground that in the light of the most recent decisions of the Federal Court in Repatriation Commission v Gorton and Repatriation Commission v Williams, that the SoP to be applied should have been the SoP in existence at the date of the AAT’s review, namely SoP No. 27 of 1999.
It should be noted, however, that although this clearly constitutes an error of law, it was an error made by the AAT prior to having the benefit of the two recent decisions delivered by the Full Court of the Federal Court.
The applicant in relying upon the application of SoP No. 27 of 1999, maintained that the grounds of law are still applicable and that the error in applying the incorrect SoP is an error which of itself would require the appeal to be upheld and the matter remitted to the Tribunal for consideration of the application in the light of the later SoP.
In addition, the applicant relied upon the grounds of law that had been raised and in particular was critical of the Tribunal in requiring what was submitted to be a matter in addition to the items listed in the SoP and/or going beyond the definition in the SoP. In particular, reference was made to the Tribunal requiring the pain to be “sharp or act keenly on the senses”.
It was further submitted that the Tribunal erred in the method in which it applied the decision of Deledio. It was initially suggested that the Tribunal had not even reached the first stage of the four-step process set out in Deledio. As I understood the submissions, however, the applicant’s representative ultimately conceded that the Tribunal had in fact dealt with the first step. I drew the attention of the applicant’s representative to paragraph 9 of the Tribunal’s reasons, where the Tribunal states: “The hypothesis raised is that the lumbar spondylosis was caused or aggravated by trauma to the lumbar spine sustained on service on one occasion when a man helping Mr Hill lift a motor dropped his end of the motor.” This indicates clearly, in my view, that the AAT has properly identified a hypothesis and reached the first stage as contemplated by Deledio.
In any event, as I understand the submission, the applicant’s representative further submitted that the Tribunal did not follow the steps in Deledio and/or combined two steps without realising that each step involved different considerations.
A further criticism was made of the AAT decision on the grounds that it required the applicant to produce evidence which may have upheld the SoP. Reference was made to the Tribunal’s reasons where it states: “He gave no evidence of acute signs or symptoms”. He did not say “he had sufficient pain to seek medical help” and further that “he said it was inconvenient to get to the SSQ.””
A further separate ground of appeal relied upon by the applicant is the failure of the AAT to provide adequate and sufficient reasons for its decision as required by s 43(2B) of the AAT Act. The basis of this submission seemed to be that the Tribunal had either not adopted the four steps required by the Deledio case and/or not provided sufficient basis for its findings upon which it could be determined if step number ”four was covered”. It is said that the applicant would have difficulty determining from the reasons as to why he was not successful, having suffered an injury during his war service.
The applicant sought to rely upon s 119 of the Act and in particular urged the Court to consider specifically that the AAT, like the Commission, pursuant to that section is “not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any such matter as it thinks just.” The applicant further relied upon the section which provides that the Commission shall “act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities” (see s 119(1)(f) and (g) respectively).
Respondent’s submissions
The respondent conceded that the incorrect SoP had been applied by the AAT. It was submitted, however, that although clearly an error of law in the light of recent Federal Court decisions, it was not an error of law which was sufficient to justify allowing the appeal. It was submitted that by applying SoP No. 27 of 1999, there would be no difference to the outcome of the applicant’s claim. It was further submitted that in this case it could not be said that the AAT’s decision would have been different if the error had not occurred (see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 384). It was submitted that in the circumstances there would be no purpose served by remitting the matter to the AAT and to do so would be futile. (See Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR at 560-562; Federal Commissioner of Taxation v Polla-Mounter (1995) 34 ATR 437).
Specifically, the respondent submitted that the changes in the more recent SoP in the definition of “trauma to the lumbar spine” are not such as to produce a different result before the AAT.
It was further submitted that on a comparative analysis of the two SoP’s, it is to be noted that SoP 165 of 1996 requires “acute symptoms and signs of pain, tenderness and altered mobility or range of movement of that part of the spine”, whilst SoP 27 of 1999 requires “acute symptoms and signs of pain and tenderness and either altered mobility or range of movement of the lumbar spine” (emphasis added). It is noted that both SoPs require “acute” symptoms and signs and that there is a reference in SoP 165 of 1996 to “of the joint” rather than “of the part of the lumbar spine”. Both SoPs require, as indicated earlier, “acute symptoms and signs” of pain and “acute symptoms and signs of tenderness”.
Other differences in the SoPs have been referred to, including a change from SoP 165 of 1996 requiring the acute symptoms and signs to last for a period of at least one week “immediately after the injury occurs” whereas SoP 27 of 1999 requires the acute symptoms and signs must last for “a period of at least seven days following their onset.”
It is agreed by the parties that the question of medical intervention is not relevant to the present case.
It was submitted by the respondent that the AAT had approached the task in a correct manner and that the SoP can only uphold the hypothesis if the hypothesis is consistent with the template set out in the SoP. The respondent submitted that it is not the case, as claimed by the applicant, that a “reasonable matching of the SoP with the symptoms suffered by the applicant” is sufficient. The material, it was submitted, must raise a hypothesis which contained each of the elements prescribed by the SoP (see Connors v Repatriation Commission (2000) 59 ALD 61). It was submitted that if the hypothesis, as raised by the material, did not contain the elements prescribed by the SoP, then the hypothesis could not be reasonable (see Repatriation Commission v Gosewinckel (1999) FCA 1273).
The respondent submitted that the Court should not allow the applicant to rely upon s 119 in the VE Act, and in particular submitted that the purpose of that section is not to “invent evidence which may serve to establish necessary connection between injury and war service” (see Mason v Repatriation Commission (2000) FCA 1409 and also Grundman v Repatriation Commission (2001) FCA 892).
Reasoning
In the present case, it is my view that whilst an error of law occurred in relation to the AAT’s decision to apply the incorrect SoP, I am satisfied that after a comparative analysis of the two SoPs, that the essential features required in both would not alter the outcome of the applicant’s present claim which had been before the AAT.
It is appropriate to set out the definition of “trauma to the lumbar spine” in SoP 165 of 1996 and to compare it to the definition which I have previously set out in paragraph 9 of this judgment:
“ ‘Trauma to the lumbar spine’ means an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered."
A comparative analysis of the two SoPs shows that there may be differences in certain respects but that those differences, claimed by the respondent for the present case, do not justify upholding the appeal or remitting the application back to the AAT. It is noted that SoP 165 of 1996 refers to “an injury to the lumbar spine caused by the force of an extraneous physical or mental agent”, whilst SoP 27 of 1999 refers to “discrete injury to the lumbar spine”. It was submitted by the respondent and I accept that the event which is the subject of the present application would satisfy either of the definitions as the lifting and dropping of the motor could be said to involve a physical or mechanical agent extraneous to the applicant exerting force and causing injury to the lumbar spine. It could also be described as a discrete or separate or distinct injury to the lumbar spine.
When considering the definition of “trauma to lumbar spine” it is clear in my view that the Tribunal was entitled to rely upon the meaning of “acute symptoms and signs” which had been dealt with by Finn J in Harris v Repatriation Commission. I am satisfied that on the material before me that the AAT did not fall into error in applying the reasoning of His Honour in that case to the definition set out in SoP 165 of 1996. The reasoning of His Honour has equal application in relation to the definition set out in SoP 27 of 1999 insofar as it assists in the interpretation of the words “acute symptoms and signs”. I cannot see any error in the Tribunal’s reasoning in this regard. It is open to a Tribunal in my view to obtain assistance from authorities which deal with the interpretation of words set out in a definition contained in an SoP. It is not adding to the definition but simply providing a means by which the definition may be applied and as indicated in doing so I cannot see that there has been any error of law in this instance.
It should be remembered that the AAT in considering the four stages set out in Deledio’s case, must have regard to the evidence and then it is entitled to consider that evidence and decide whether it does indeed provide a proper basis upon which it could find that there were signs or symptoms which could be regarded as “acute” applying directly as it did the meaning given to the term by Finn J in Harris v Repatriation Commission.
In considering whether the Tribunal correctly applied the principles set out in Deledio’s case, it is useful to briefly recall that the Tribunal, in my view, clearly identified the first step required in applying the principles set out in Deledio’s case. The Tribunal said:
“The first step is to consider whether the material before the Tribunal points to a hypothesis connecting Mr Hill’s lumbar spondylosis with the circumstances of his service. The hypothesis raised is that the lumbar spondylosis was caused or aggravated by trauma to the lumbar spine sustained on service on one occasion when a man helping Mr Hill lift a motor dropped his end of the motor.”
Although there was some attempt to make a submission for and on behalf of the applicant that the Tribunal had not even reached Step 1 it is clear from the passage to which I have just referred that the Tribunal discharged its duty appropriately and in accordance with the law. It did find that Step 1 had been reached and specified the hypothesis raised in the correct manner. In considering whether the Tribunal then followed the other steps correctly, it is appropriate to note further that in its reasons the Tribunal stated that:
“10. The second step as explained in Deledio requires the Tribunal to ascertain whether there is a Statement of Principles in force in respect of the relevant injury. There is a relevant Statement of Principles”.
By referring to the second step and correctly identifying the fact that there is a relevant Statement of Principles – albeit the incorrect one was applied – the Tribunal had, in my view, discharged its duty to properly consider and identify the second step set out in Deledio. The Tribunal further states:
“11. The third step requires the Tribunal to consider whether the hypothesis raised is a reasonable one. The Full Court in Deledio explained how that is to be done. If a SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the template to be found in the SoP.”
The Tribunal went on to say:
“12. The hypothesis raised must contain one or more of the factors which the Repatriation Medical Authority has determined to be the minimum which must exist and be related to the person’s service as required by ss 196B(2)(d) and (e) of the Act. If the hypothesis does contain these factors it could merely be said to be contrary to proved or known scientific facts nor otherwise fanciful. If the hypothesis fails to fit within the template it will be deemed not to be reasonable and the claim will fail.”
I can see no error at all in the Tribunal’s interpretation of its task in considering the steps set out in Deledio. When the AAT further considered the hypothesis raised and noted that it appeared to contain the factor of trauma, it correctly concluded that it is “necessary that the trauma to the lumbar spine be trauma fitting the definition in the SoP.” As already indicated, it was then entitled to draw assistance from the definition explained by Finn J in the case of Harris v Repatriation Commission.
The criticism which is then made of the Tribunal’s reasoning by the applicant arises essentially from the following passages which I set out in full from the Tribunal’s reasons:
“14. In the light of the lack of mention of the incident in medical records over many years we had some doubts about the evidence Mr Hill gave, even allowing for the time lapse since 1956. But for the task we are now engaged on that is not relevant. Even accepting his evidence, it does not raise or point to the matters required in the definition in the Statement of Principles. First, there is no evidence of any signs or symptoms being ‘acute’. As Finn J pointed out in Harris, the Shorter Oxford English Dictionary indicates that for symptoms to be ‘acute’ they must be ‘sharp or act keenly on the senses.’ Mr Hill did not say that his pain was sharp even initially. In fact he told the VRB that he helped move the motor immediately after the incident. He told us he got two other men to do so without him, but he did not say that the pain was sharp or remained sharp for at least a week.
15. Mr Hill gave no evidence of acute signs or symptoms of tenderness. He did not describe his back being sore. Although he said pain lasted about a fortnight he did not say he had pain sufficient for him to seek medical help which was available on the base or even to take an Aspro. He said it was inconvenient to get to the SSQ, but his medical records show he did so at least six times during the year of the incident for other matters including headache.
16. The facts that Mr Hill did not at any stage seek even a pain-killer and that he did not take any time off duty indicate that the requirements of the definition are not raised. Further, on his discharge medical, T docs pages 11 and 12, he answered ‘No’ to a question asking if he had any knee, back or joint injury during service and did not mention the incident when asked if he had suffered any injuries, although he did report an eye injury.”
In my view, the Tribunal in referring to the lack of mention of the incident in medical records may simply be regarded as a comment in passing as the Tribunal correctly notes that for the task that it was presently engaged in, that was not a relevant matter. It found, as in my view it was open to find, that there was no evidence of any signs or symptoms being acute and in making that finding it pursued a factual enquiry which in the circumstances it is obliged to undertake. It is not for a court hearing an appeal under s 44 of the AAT Act to determine in minute detail each and every finding of fact that may have been made by a Tribunal. There is ample authority for the proposition that even if it is thought by the appellant court that the Tribunal reached a conclusion that was different to the conclusion to be reached by the appellant court that would not of itself constitute an error of law. In the present case I cannot see any error of law on the part of the Tribunal by simply referring to the facts and determining whether those facts in truth supported the proposition that the applicant’s condition is one which could fairly be said to have met the requirements of the definition in the SoP.
Although the Tribunal refers to the fact that the applicant gave “no evidence of acute signs or symptoms” and “did not say he had pain sufficient for him to seek medical help which was available at the base or even take an Aspro”, those comments in my view do not constitute a sufficient basis from which it can be said that there was an onus placed upon the applicant to produce evidence which may have upheld the SoP. All those comments relate to is an analysis of the factual background which may or may not lead the Tribunal to conclude that the circumstances of this particular injury are sufficient to meet the requirements of the definition in the SoP. It is fanciful to suggest that the Tribunal by referring to the evidence before it has somehow then placed an onus or burden upon an applicant which would in turn constitute an error of law. The task of determining whether certain facts fit within the definition provide an SoP must necessarily involve an analysis of those facts and consideration of the relevant definition which will often be assisted by judicial interpretation as in the present case provided by Finn J in Harris v Repatriation Commission.
In my view, the proper task for a Tribunal in a case of this kind is to ensure that upon the evidence there is sufficient material to raise the hypothesis contained in each of the elements prescribed in the SoP. It is not sufficient for the Tribunal to simply find that there has been a “reasonable matching of the SoP with the symptoms suffered by the applicant” as submitted by the applicant in the present case. Whilst there may have been some minor error in the reasoning of the findings of the Tribunal, for example its finding that “he did not describe his back being sore” which seemed to me to be somewhat inconsistent with the evidence, where at the very least in his statement the applicant says he “felt immediate pain across my lower back” which may amount to a reference to the back being “sore”, it does not mean, therefore, that there has been an error of law.
I was referred to and adopt the useful statement by the High Court in the decision of Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, where the Court, in considering the AAT’s reasons for decision stated that the reasons “… should not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”
In the present case, I also accept and apply what His Honour Weinberg J said in Mason v Repatriation Commission (2000) FCA 149 at paragraph 68 where His Honour states:
“It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a finer palette toothcomb, against the prospect that a verbal slip will be found warranting the inference of an error of law”.
In the present case, I cannot see any finding by the AAT which would indeed constitute an error of law, nor can I see in its approach any error in its application of the principles set out in Deledio’s case.
A proper reading of the Tribunal’s reasons, in my view, would provide the reader with an opportunity to determine the evidence or material upon which its findings were based and to that extent I am satisfied that the Tribunal has complied appropriately with the requirements of s 43B of the AAT Act. The Tribunal, in my view, clearly made a finding in relation to Step 1 set out in Deledio by identifying the hypothesis in the present case and then also clearly dealt with the issue of whether or not the hypothesis in the present case was reasonable. It clearly made findings as to the basis upon which it was able to find that the applicant did not fit the template set out in the SoP.
Reference is made to s 119 of the VE Act which, as far as I can understand it, was relied upon to suggest that the AAT ought to be bound by that provision and indeed should not act in a formal manner or apply the rules of evidence and should inform itself of any matters it thinks just. It should act, it is said, in adopting the language of the section in such a way as to accord substantial justice and the substantial merits of the case without regard to legal form and technicalities.
I cannot see any evidence in the present case to suggest that the Tribunal has contravened s 119 of the Act. It is correct to say, as submitted by the respondent in the present case, that this Court should not allow an applicant to rely upon s 119 of the VE Act in circumstances where it would involve inventing evidence which may serve to establish a necessary connection between the injury and war service. (See Mason v Repatriation Commission (2000) FCA 1409 and Grundman v Repatriation Commission (2001) FCA 6892.)
In Mason v Repatriation Commission, Weinberg J stated,
“Both parties noted that it is not the function of s 119(1) to fill in gaps, where the evidence does not assist the applicant’s case. This is of course correct. The function of s 119(1) is set out in Repatriation Commission v Bey (1997) 79 FCR 364 where four judges of a five-judge Court said at 373 – 4:
‘… in order for the hypothesis advanced by the respondent to be reasonable, there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not replace the Tribunal’s obligation to act in accordance with law. Paragraph (h) of s 119(1) is a provision of the same character as par (g): see the words which introduce it – “without limiting the generality of the foregoing”. Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions’.”
In my view, the AAT in the present case has not erred in law and
s 119 cannot be applied to assist in the claim by effectively seeking to remedy a factual deficiency by resort, as indicated by the Full Court, to a procedural provision such as s 119.
Conclusion
Accordingly it follows that whilst there has been established an error of law in the incorrect application of the appropriate SoP, it is not an error which is sufficient in the present case to justify allowing the appeal and/or remitting the matter to the Tribunal for further consideration.
In relation to the other grounds of appeal, as I have indicated I cannot find any error of law, nor do I find that the Tribunal has failed to comply with its obligations under s 43(2B) of the AAT Act. The appeal therefore should be dismissed and I propose making the following orders:
(1)The appeal is dismissed.
(2)The applicant pay the respondent’s costs to be taxed in default of agreement pursuant to Order 62 of the Federal Court Rules.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 26 October 2001
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