Jones as Executrix of the Estate of James Henry Jones Deceased an D Repatriation Commission

[2003] AATA 1183

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1183

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No V02/1125

VETERANS'      APPEALS       DIVISION		)
Re		LILLIAN ADELA JONES as Executrix of the Estate of James Henry Jones deceased

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J Handley, Senior Member

Date21 November 2003

PlaceMelbourne

Decision The decision under review in so far as it refers to the deceased’s right ankle is set aside and in substitution IT IS DECIDED that the right ankle injury is war-caused.  This part of the application is remitted to the respondent for assessment of pension.  In all other respects the remainder of the decision under review is affirmed.

(Sgd) J Handley

Senior Member

VETERANS’ ENTITLEMENTS – Estate application; claim for acceptance of lumbar spondylosis and osteoarthrosis of feet, ankles, knees and hips; whether Statement of Principles satisfied; absence of medical material; consultant opinion withheld; whether s9 applies to the exclusion of Statement of Principles; decision in part set aside; decision otherwise affirmed.

Veterans’ Entitlements Act 1986 s9(1)(a)(b)(c)

Statement of Principles No.27 of 1999

Statement of Principles No 46 of 2002

Statement of Principles No.77 of 2002

Statement of Principles No.41 of 1998

Statement of Principles No.19 of 1999

Statement of Principles No.81 of 2001

Woodward v Repatriation Commission (2003) FCAFC 160

Gundry v Repatriation Commission [2003] FCAFC 160

Repatriation Commission v Hancock (2003) FCA 711

Repatriation Commission v Deledio (1998) 83 FCR 82

Fogarty v Repatriation Commission (2003) FCAFC 136

Benjamin v Repatriation Commission (2001) FCA 1879

Repatriation Commission v Gorton (2001) FCA 1194

REASONS FOR DECISION

21 November 2003   Mr J Handley, Senior Member

1.       The applicant applies as the executrix of the estate of the late James Henry Jones.  Mr Jones made a claim upon the respondent on 2 May 2001 for acceptance of the conditions of osteoarthrosis of his hips, ankles, feet and knees and for acceptance of lumbar spondylosis.  His claim was rejected on 5 May 2001.  Mr Jones died on 25 April 2002.  The Veterans’ Review Board affirmed the decision made by the respondent on 13 August 2002.  The claim was made at this Tribunal by Mrs Jones on 21 October 2002.

2.       In his lifetime Mr Jones had the condition of bilateral sensorineural hearing loss and tinnitus accepted as war-caused.  This entitled him to pension at 30% of the General rate.  His “rejected” disabilities are the subject of these proceedings.

3.       The hearing commenced in Mildura on 20 May 2003.  Mr Horan then appeared on behalf of Mrs Jones and Mr Douglass appeared on behalf of the respondent.  The hearing resumed in Melbourne on 4 August 2003.  Mr De Marchi then appeared on behalf of Mrs Jones.

4.       The late Mr Jones was a member of the Royal Australian Air Force between 9 June 1941 and 5 October 1945.  He served in New Guinea and in Canada and his overseas service entitles Mrs Jones to the beneficial standard of proof.

5.       Within the assessment period, the Statements of Principles with respect to lumbar spondylosis are No.27 of 1999, No.46 of 2002 and No.77 of 2002.  The Statements of Principles with respect to osteoarthrosis are No.41 of 1998, No.19 of 1999 and No.81 of 2001.  Mr Horan relied on factor 5(h) of the lumbar spondylosis Statement of Principle No.46 of 2002 and factor 5(j) of the osteoarthrosis Statement of Principle No.81 of 2001.  When the hearing resumed in Melbourne Mr De Marchi relied also on factor 5(g) of Instrument No.46 of 2002 and factors 5(e) and (h) of Instrument No.81 of 2001.

6.       When the hearing commenced in Mildura it was noted that the applicant’s solicitors had not lodged any medical reports or other documentation in support of the application.  Mr Horan then advised that the applicant’s solicitors had forwarded relevant extracts from the file to Mr Hadley, a consultant orthopaedic surgeon for opinion, and it was anticipated that his report would be lodged and exchanged prior to the resumption in Melbourne.  When the matter did resume in Melbourne Mr De Marchi indicated that the report of Mr Hadley had been received but would not be lodged.  Mr De Marchi explained that the report of Mr Hadley did not “assist” the applicant. I interpret that comment to mean that Mr Hadley did not support a connection between service and the claimed injuries. The application therefore proceeded only upon the documentation lodged by the respondent namely, documents lodged pursuant to s37 of the Administrative Appeals Tribunal Act 1975, extracts from the departmental file, the file of the deceased’s local medical officer, Dr Hession of Swan Hill, and a report from a military historian Mr Piper. Mr Horan lodged a statement dated 5 May 2003 of Mrs Jones.

7.       Mrs Jones only gave evidence in Mildura.  When the matter resumed in Melbourne Mr Douglass indicated that it was not intended to call Mr Piper.  In the absence of Mr Hadley the hearing concluded by way of oral submissions from both representatives.

Statements of Principles

8.       With respect to the lumbar spondylosis Instrument, the factors relied upon by the applicant were 5(g) and (h) which are reproduced as follows:

(g)suffering from permanent ligamentous instability of the lumbar spine before the clinical onset of lumbar spondylosis; or

(h)suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;… .

9.       Instrument No.77 of 2002 amends Instrument No.46 of 2002 relevantly at factor 5(g) by deleting the factor which previously appeared and substituting it with the following:

(g)suffering an injury to the lumbar spine which has resulted in permanent ligamentous instability of the lumbar spine before the clinical onset of lumbar spondylosis;…

10.     In the former Instrument the expression “permanent ligamentous instability” is defined at paragraph 8 as meaning:

“permanent ligamentous instability” means continuing or recurring abnormal mobility and instability of the lumbar spine which is characterised by the regular recurrence of episodes of pain and/or tenderness affecting the lumbar spine.

11.     In the latter Instrument the expression “permanent ligamentous instability of the lumbar spine” amends the definition as previously appearing and in substitution provides the following:

“permanent ligamentous instability of the lumbar spine” means radiological evidence on flexion and extension lateral radiographs of either:

(i)anteroposterior motion of one vertebra over another in the lumbar spine that is greater than 4.5 mm, or

(ii)angular motion between L1 and L2 greater than 15 degrees, or

(iii)angular motion between L2 and L3 greater than 15 degrees, or

(iv)angular motion between L3 and L4 greater than 15 degrees, or

(v)angular motion between L4 and L5 greater than 20 degrees, or

(vi)angular motion between L5 and S1 greater than 25 degrees.

12.     The expression “trauma to the lumbar spine” is defined in the former Instrument (and is unaffected by the amending Instrument) 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 symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine.  These 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.

13.     The Statement of Principle (“SOP”) which existed at the commencement of the assessment period with respect to lumbar spondylosis namely, No.27 of 1999 has identical factors which appear in Instrument No.46 of 2002.  It also contains the same definition of “permanent ligamentous instability” as appears in that Instrument however the definition of “trauma to the lumbar spine” as appears in SOP No.27 of 1999 differs from the definition of “trauma to the lumbar spine” as appears in Instrument No.46 of 2002 only by deletion from the latter Instrument of the word “acute” as it appears, on both occasions, immediately before the word “symptoms”.

14.     With respect to the condition of osteoarthosis, the applicant relied on Instrument No.81 of 2001 and more particularly factors 5(e), (h), and (j).  Those factors are relevantly reproduced as follows:

(e)for osteoarthrosis of a hip, knee or ankle joint, having disordered joint mechanics affecting that joint before the clinical onset of osteoarthrosis in that joint; or

(h)suffering from permanent ligamentous instability of the affected joint before the clinical onset of osteoarthrosis in that joint; or

(j)suffering a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint; ……

15.     Instrument No.41 of 1998 which was in existence at the commencement of the assessment period has different factors to that which appears in Instrument No.81 of 2001.  There is no corresponding factor equivalent of (e) above.  Factors (h) and (j) are in similar terms to the latter Instrument except that the factors refer to “the affected joint” whereas the former Instrument refers to “a joint”.

16.     The expression “trauma to a joint” as appeared in Instrument No.41 of 1998 was amended by Instrument No.19 of 1999.  It is in virtually identical terms to the definition of “trauma to the lumbar spine” as appeared in Instrument No.27 of 1999 (refer above) save that it refers to a “discrete joint injury” whereas the former definition referred to a “discrete injury to the lumbar spine”.  Additionally the qualification to the definition in the event of medical intervention differs only by referring to a “joint or limb” whereas the former definition applies to “the lumbar spine”.  A further qualification to the definition extends to “aspiration of that joint”.  The definition of “trauma to the affected joint” as appears in Instrument No.81 of 2001 is identical to the definition in Instrument No.19 of 1999 save that it (also) has the word “acute” deleted as it formerly appeared immediately before the word “symptoms” in both places.

17.     The expression “permanent ligamentous instability” within Instrument No.41 of 1998 and No.81 of 2001 is identical namely:

“permanent ligamentous instability” means continuing or recurring abnormal mobility and instability of a joint which is characterised by the regular recurrence of episodes of pain and/or swelling of that joint.

18.     The expression “disordered joint mechanics” as appears in Instrument No.81 of 2001 (only) is defined as follows:

“disordered joint mechanics” means maldistribution of loading forces on that joint resulting from:

(a)a rotation or angulation deformity of the long bones of the affected limb;

(b)a rotation or angulation deformity of the hip, knee or ankle joint of the affected limb;

(c)necrosis of bone near the affected joint;

(d)amputation involving either leg; or

(e)permanent limp involving either leg resulting from pelvic, thoracolumbar spine, long bone or joint pathology.

19.     In all of the above Statements of Principles, clause 4 provides that subject to clause 6 (which refers to factors arising out of a clinical worsening) at least one of the factors in clause 5 must be related to any relevant service rendered by the veteran.  Clause 5 in each of the applicable Statements of Principles provides that a factor must exist as a minimum before it could be said that a reasonable hypothesis has been raised connecting a claimed injury with a circumstances of a persons’ relevant service.

Lillian Adela Jones

20.     Mrs Jones is the widow of the late James Henry Jones who brings these proceedings in her capacity as executrix of his estate.  Mrs Jones lodged a statement dated 5 May 2003 which was received into evidence as Exhibit A.  That statement is reproduced as follows:

I, LILLIAN JONES of 37 Mellor Grove, Swan Hill, state as follows:

1.I married the late James Henry Jones in 1947.

2.I was told by my husband that he suffered injuries to his knees and ankles during his service in New Guinea.  He was sent back to Queensland and was hospitalized to recover from these injuries.

3.He was then posted to Canada.

4.I am aware that he played league football prior to his service, but my husband never mentioned any injuries from this sport.  I do know however, that after his service, he never played football again because of the severe pain to his knees and ankles.

5.My husband suffered from pain to his knees and ankles as well as hips and back, for as long as I have known him, with the pain, especially in the knees and ankles, becoming more severe in his 60’s.

6.I believe the severe pain in his knees and ankles aggravated the back and hips.

21.     Mrs Jones said that she first met her husband in December 1946 and married him in April 1947.  She said that he had been discharged from service when they first met and her knowledge of his service was only by reference to what he had told her.  She said that when he served in New Guinea he would joke with her that he was the first person to jump into slit trenches.  She said that he did this because “the quicker you got into the trenches the safer you would be”..  Mrs Jones said that her husband had told her that he suffered his injuries as a result of both jumping into the trenches and with other service comrades jumping on top of him (into the trenches).

22.     So far as Mrs Jones was aware, her husband was educated to merit certificate level at secondary school and moved to Melbourne in about 1936 or 1937 when he was 18 years of age.  He moved to Melbourne because he was recruited by the Carlton Football Club to play football.  She said the football club obtained a job for him in Melbourne with the Victorian Railways where he worked until he enlisted.  She said that her husband played football until enlistment and when he had leave from the Army he also played.  She said that her husband was a particularly active sports person and had previously participated in cricket, tennis and golf in addition to football.

23.     Mrs Jones said that when she first met her husband she had no recollection of him then having any “medical problems”..  Whilst he did not play football after he was discharged from service he did coach football and tennis and also played tennis.  She recalled shortly after marriage that his ankles would swell which was the reason why he ceased playing competitive sport.  She said that he also twisted his ankles during service at an athletic meeting.  Mrs Jones said that she recalled her husband’s ankles swelling to such a degree that special shoes were made for him in Bendigo in about 1947 or 1948.  She was unable to explain why his discharge medical examination did not record any feet, ankle, knee, hip or back injuries.  Mrs Jones said that her husband was a member of Legacy and had assisted other veterans’ and was familiar with making claims.  She said that he would have been reluctant to have reported his injuries at discharge or make any claim upon the Commission earlier than May 2001.  She recalled that her husband used a walking stick from about 1952.  When she and her husband moved from Melbourne to Swan Hill in the late 1980’s her husband played golf but used a motorised buggy.  She said he later gave up golf because his ankles continued to swell and he took up lawn bowls but he ceased participation in that sport in 1998.

24.     In cross-examination Mrs Jones said that her husband in fact did suffer injuries as a result of jumping into the trenches as she previously described.  She said that this activity occurred “early in the war” and she recalled that her husband frequently said to her that he had become “crippled” because of jumping into the trenches, however the injuries did not affect him in other service duties.  When asked whether she could explain how her husband qualified at a medical examination to serve as a flight instructor where no symptoms or injuries were recorded, Mrs Jones said that the severity of his symptoms did not become apparent until after he was discharged.  Mrs Jones was unable to explain the absence of hospital records or reports of treatment with respect to his ankles and knee injuries alleged to have occurred in service but she had a recollection that on one occasion her husband was transferred from New Guinea to Townsville for treatment.

25.     Mrs Jones was then taken to page 14 of the T-documents (dated 27 November 1941) where a scar was noted upon the deceased’s left knee.  Mrs Jones said that she did not know the cause of the scarring and had no recollection of it having arisen out of playing football.

26.     When asked to describe the nature of her husband’s symptoms, Mrs Jones said that when she first met him in 1946 his joint pain was “mild” but it became worse later.  She acknowledged that Dr Hession prescribed a walking stick in November 1994 however she said that he had been using a stick for many years previously.

27.     Mrs Jones was then taken to reports found within the file of the Repatriation General Hospital where in December 1980 the late Mr Jones presented with a three week history of left ankle pain.  The report records that there is no history of trauma to the feet or ankle.  Similarly she was taken to a report of Dr Newnham of 16 March 1984 who recorded a history of the late Mr Jones having “sore knees and ankles” for three or four years.  Mrs Jones could not explain the history taken by those doctors and remained adamant that her husband did suffer pain after discharge but which had become worse upon his retirement.  She acknowledged that Dr Newnham had suggested to her husband that he should wear a caliper to support his left ankle but her husband had rejected it.

28.     In re-examination Mrs Jones acknowledged that she had been advised by her husband’s doctors to have a total right knee replacement and an “arthroscopic clean out” of his left knee.

Tribunal Documents

29. The documents lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 contain material completed by, or on behalf of, the late Mr Jones in his lifetime.

30.     In his claim for acceptance of the conditions which are the subject of these proceedings (T-6) the knee injuries, described as “both knee troubles”, are recorded as being service caused or contributed to, or aggravated by service by:

Many minor traumas from rough landings and from jumping down from aircraft after landings.

31.     The hip injuries, described as “hip problems”, are described as connected to service by:

I consider the problems with my hips were caused by the number of rough landings I had particularly as a flying instructor in Canada for 18 months.

The rough landings jarred hips and back.

32.     The claim for lumbar spondylosis, described in the application as “back problem”, is described as having a connection with service by:

Problems commenced during my service in 1942 and have continued.

33.     The ankle injuries, described as “ankle problems”, are described as having a connection with service by:

Occurred in 1945 during service and treatment obtained.

34.     The claim form is signed by Mr Jones but the above references are not in his handwriting.  The claim form is dated 27 April 2001.

35.     In further claim forms completed by Mr Jones on 31 May 2001 (page 60) he recorded that his “hip problems” occurred during bombing raids in 1942 by reason of:

After jumping into trenches during the 80+ air raids that we were in and other blokes jumping on top of me quite often caused pain to my hips & pelvic area.

36.     He described symptoms following the “injury” as “pains to hips & pelvic area”.  He said the symptoms began “immediately” and lasted for “about 24 hrs then easing gradually until the next bombing raid and have been continuing ever since”.  He recorded that he did not attend for treatment following the “injury”.

37.     With respect to the ankle injuries, Mr Jones gave a similar explanation as he did with respect to the occurrence of the hip injuries but also recorded that he suffered a right ankle injury in 1945 during “high jumping for inter-service sports”..  He also referred to a sick parade report of 1945.  He gave similar explanations as to symptoms, the occurrence of symptoms and duration of symptoms as he did with respect to his hip injuries but said additionally that his right ankle was strapped in 1945 when he attended for sick parade.  At page 64 is the claim completed by Mr Jones with respect to his back injury and he again explains the cause as he did with respect to his hips and ankles.  He also gave a similar explanation as to the symptoms suffered, the onset of symptoms, and duration.  He recorded that treatment was not “available”.

38.     With respect to the knee injuries, he has given similar explanations as above concerning the occurrence of the hip, ankles and back injuries.

Medical Evidence

39.     Dr Hession completed a number of forms which were annexed to the claim made by Mr Jones in May 2001.  At page 35 of the T-documents he records the deceased having suffered from “severe three compartment osteoarthitis” in both knees.  He records that the condition has been “present over years progressive gradually worsening” and records “no specific trigger/injury in past”..  The right knee is the subject of a separate report where he confirms “tricompartment severe osteoarthrosis” with “no” predisposing factor.

40.     With respect to the left hip, Dr Hession records (page 39) that it was replaced in 1994 by reason of severe osteoarthosis.  He recorded “no” predisposing factor.  The right hip (page 41) is described as suffering from “moderate osteoarthritis” with “no” predisposing factor.

41.     The back injury (page 43) is described by Dr Hession as a “degenerative lumbar/sacral spine changes of discs and facet joints” confirmed upon x-ray.  He recorded that there were “no” predisposing factors and that clinical onset of the condition was “progressive over years”.

42.     At page 45 Dr Hession recorded that the knee problems were “progressive over years with no particular trigger”..  He also recorded that the late veteran had not “suffered from permanent ligamentous instability” of the knees.  Additionally he recorded (page 46) that the veteran did not suffer a “trauma to the specified joint” when again referring to the veteran’s knees.  With respect to the ankle injuries Dr Hession recorded (page 48) that the clinical onset of both ankle “problems” was “over years”.  He found that the veteran had suffered from a trauma to the joint and in a reference to the left ankle he recorded “in air force high jumping as part of PT”..  When asked to record the duration of symptoms, Dr Hession recorded “crutches for a few days only nil to suggest complete lig tear sounds like a sprain/partial tear but always a bit weaker since”.

43.     With respect to the “hip problems”, Dr Hession recorded that the clinical onset was “progressive over years” without having suffered a trauma to that joint (page 50).

44.     The clinical onset of the “back problem” was described as “progressive over years” without suffering from a lumbar intervertebral disc prolapse (page 54).  Dr Hession recorded (page 56) that the veteran had not suffered from a “permanent ligamentous instability of the lumbar spine”..  At page 58 Dr Hession also recorded that the veteran had not suffered from a trauma to the lumbar spine.

Medical Records

45.     

Pages 15A - 15I are extracts from the departmental file not found within the

T-documents.  In a copy of an RAAF sick parade card at page 15A it is noted that on 30 April 1942 Mr Jones presented with “pain in back”.  On 13 July 1942 he reported with “headaches, pain in joints”.  His temperature then was recorded as being 102 degrees and on 17 July 1942 he was diagnosed with “post dengue aching, rash on palm of hands”.

46.     In another sick parade card found at page 15B, Mr Jones presented on 4 June 1945 with a “mild sprain” of his right ankle which was strapped.  On 18 July 1945 he again attended with “recurrence of sprain” and the prescribed treatment was “straps”.

47.     On 2 February 1979 (page 15C) Mr Jones presented to his former general practitioner, Dr Kagan, complaining of tenderness of his left knee which is recorded as having a six month duration.  He was then referred for x-ray.  On 5 February 1979 a radiologist at the Repatriation Hospital recorded a clinical diagnosis of ligament tenderness with “marked osteoarthritic changes present”.

48.     On 31 December 1980 Mr Jones attended at the Repatriation Hospital and provided a history of left ankle pain of three weeks duration with “no history of falls or trauma to foot”.  At page 15F (which is undated) Mr Jones presented to a doctor (Dr Jones) who found “crepitus++ in both knees - R knee - range of movement limited, to 50 degrees flexion.  R ankle -  limited range of movement ESP flexion and extension”.  The doctor notes the presence of osteoarthritis “in all joints involved” and recommended an increase in his prescribed medication.

49.     On 9 August 1982 Mr Jones again attended at the Repatriation Hospital where Dr Jones recorded a provisional diagnosis of osteoarthritis.  His clinical notes record “presents with longstanding pain in both knees and ankles.  Pain is often worse in the mornings, but also becomes worse after exercise, particularly playing golf.  (pH of very active sports-life with football, and many years of tennis and cricket)”.  An x-ray taken on the same day found a marked osteoarthritic change present in the veteran’s knees with greater joint space narrowing in the left than the right.  Osteoarthritic changes were also noted in the right ankle.

50.     In a report of 16 March 1984 found at page 15I, Mr Newnham, a consultant rheumatologist, wrote to Dr Kagan and reported a history taken from Mr Jones of “sore knees and ankles” for three to four years.  He reported that pain “comes with activity” and with left ankle swelling.  On examination Dr Newnham found the late Mr Jones suffering from gross osteoarthritic changes in both knees and ankles with pain and crepitus on movement.

51.     The file of the late Mr Jones as held by Dr Hession at the Swan Hill Medical Group was also received into evidence.

52.     It appears from the file that Mr Jones first attended for treatment on 30 October 1990.  He was then prescribed painkilling medication for a condition described as “OA knee”.  On examination it was noted that both knees were swollen with crepitus.  Throughout the file there are many references to the prescription of painkilling medication.  There are references in October 1993 to osteoarthritis of the left hip and an x-ray also in 1993 revealed referred pain from the left hip.  In November 1994 Dr Hession recorded that Mr Jones was recommended the use of a walking stick and the osteoarthritis of his left hip was reported as being “severe”.  In March 1997 it is noted that the late Mr Jones presented with osteoarthritis of his “knee” and in October 1997 he was found to have osteoarthritis in both knees.  A reference is made to arthroscopy of the left knee in September 1998 and presentation with symptoms of osteoarthritis in his right knee in July 1999 resulted in injections being prescribed.

53.     In October 1999 the late Mr Jones was found to have an enlarged prostate with a “medium growth”..  This appears to be the first clinical presentation for what was eventually diagnosed as prostate cancer.  Thereafter there is extensive treatment of that condition with the prescription of medication.  In March 2000 the late Mr Jones was referred to an occupational therapist concerning his “hip”.  In February 2001 he was found to have “bone pain” and at August 2001 he was found to have pain in both knees and walking was limited to the use of a stick.  In October 2001 he was found to have increased lethargy associated with his prostate cancer.  From December 2001 until his demise Dr Hession treated Mr Jones at his home.  On examination he was found to have “sacral soreness” and he was recommended to use a cushion.  Thereafter all treatment was associated with the prostate cancer.

54.     Dr Hession’s file contains a number of reports from other doctors and radiologists.  At x-ray on 30 October 1990, the late Mr Jones was found to have severe osteoarthritic changes in both knees without evidence of recent trauma (page 20).  It was found that he was then “requiring a lot of analgesics”..  In September 1993 he had marked osteoarthritic changes in his left hip and sacroiliac joints.  There were degenerative changes noted throughout the lumbar disc spaces and facet joints.  No evidence was found of vertebral compression or past trauma.  The deceased’s left hip was replaced in December 1994 and a histopathology report also of December 1994 concluded that the deceased had the presence of osteoporosis “with an area suggestive of fracture healing”..  Microscopically there was fibroblastic proliferation.  In March 1997 a radiologist reported that both knees demonstrated severe degenerative change, worse on the right, and in August 1998 an x-ray of both knees revealed severe three compartment osteoarthritis in both knees with loose bodies.  In September 1998 the late Mr Jones had a left knee replacement and removal of loose bodies from his right knee.

55.     In December 1999 – two months after the finding of an enlarged prostate by Dr Hession – Mr Peter Mortensen, a consulting urologist (page 32), found a poorly differentiated adenocarcinoma histologically and a bone scan showed widespread metastatic disease.  Later in December 1999 Mr Mortensen reported that Mr Jones “has had no further back pain” and in June 2000 Mr Mortensen reported that Mr Jones was “well, with no bone pain”.  A similar finding was made in a report on 13 October 2000, 8 February 2001 and 4 May 2001.  In July 2001 Mr Mortensen reported (page 51) that Mr Jones had pain in his knees “which is probably arthritis” but was then having “some discomfort in his right hip”.  It was suggested that local radiotherapy might be beneficial.

56.     In August 2001 a radiation oncologist reported to Mr Mortensen that Mr Jones was then suffering from increased pain “in his sacroiliac area and right upper femur and hip”.  Metastatic disease was observed widely and arrangements were made to administer palliative radiation.  In late August 2001, following palliative radiation over five days, Mr Mortensen reported that there had been improvement in back and right hip pain.  Mr Jones was then noted to be walking stick dependent with decreasing mobility (page 57).

57.     The file also contains a “Health Care Assessment” dated 18 September 2000 and again on 21 September 2001.  A comparison of both assessments shows a marked deterioration in the health of Mr Jones between both assessments.

58.     At 18 September 2000 under the heading of “Activities of Daily Living” the only impairments recorded against Mr Jones were with respect to ambulation and transport.  On 21 September 2001 the only condition which did not have an impairment recorded against it was “Reading”.

Submissions

59. At the commencement of the hearing in Mildura, Mr Horan said that the applicant’s case would be put in the alternative. He relied on the Statements of Principles (refer earlier) but submitted additionally that Mrs Jones was entitled to rely on the provisions of s9(1)(a)(b) and (c) of the Veterans’ Entitlements Act 1986. He submitted that injury in service was sufficient to permit the application to succeed. He specifically submitted that the claim should be upheld without having to resort to Statements of Principles. He contended that a temporal connection with service alone was sufficient to permit Mrs Jones to succeed in this appeal. He acknowledged that he knew of no authority in support of his contentions.

60.     At the conclusion of the evidence in Mildura, Mr Horan relied on the statement of Mrs Jones (refer paragraph 20 earlier) where at paragraph 6 she had contended that her husband’s severe pain in his knees and ankles aggravated the back and hip injuries.

61.     When the matter resumed in Melbourne, Mr De Marchi submitted that the estate of the late Mr Jones was entitled to have the claimed conditions accepted and pension assessed at the Extreme Disablement Adjustment rate.  When the loss of hearing of the deceased (as found within the audiograms in the T-documents) was calculated against the Guide to the Assessment of Repatriation Pensions (“GARP”), Mr De Marchi then submitted that the maximum entitlement of the estate, upon acceptance of the claimed conditions, would be to 100% of the General rate.

62.     Mr De Marchi said that he relied on the notes of Dr Hession and the supplementary documents from the departmental file found at pages 15A - 15G inclusive.  He submitted that if it was found that the deceased suffered injuries to his hips and back in New Guinea with complaint of limited range of movement, the factor with respect to “disordered joint mechanics”, (being factor 5(e) of Instrument No.81 of 2001), would be satisfied particularly upon the evidence of Mrs Jones that her husband had been prescribed special shoes in Bendigo in the late 1940’s.  He submitted that the sick parade entry at page 15A pointed to a limited range of movement in the applicant’s back.

63.     Mr Douglass submitted that there was no material pointing to a reasonable hypothesis.  He submitted that the deceased served in Port Moresby between 19 May 1942 until he was redeployed to Victoria on 3 January 1943.  He said that the entry at the sick parade recorded at page 15B was made two and a half years after redeployment.  He submitted that the sick parade entry of 13 July 1942 (page 15A) was referable to symptoms associated with dengue fever and not with back injury.

64.     With respect to the origin of injury as recorded by the deceased in his claim commencing at page 60 of the T-documents, Mr Douglass submitted that the evidence was inconsistent and if the deceased did suffer injuries repeatedly (as alleged) it would be incredible.  He submitted that the references made by Mr Jones to his wife of being the first person to jump into trenches should be interpreted only as a humorous aside and should not be understood as factually correct.  He submitted that if the deceased did suffer widespread musculo skeletal injuries it is unlikely that he would have passed a medical examination for entry into the flying ranks.

65.     Additionally it was submitted that the deceased could not have had widespread musculo skeletal injuries as alleged because during service and subsequently he was an active sports person participating in cricket and tennis and coaching football and tennis.

66.     It was submitted that the reports variously found in the file of Dr Hession demonstrated the onset of osteoarthrosis from the late 1970’s and the early 1980’s without any history of trauma.  It was noted that Dr Hession specifically discounted the injuries as having any origin in trauma or having any reference to service.

67.     With respect to the factors upon which the applicant relied, Mr Douglass submitted that there was no material at all pointing to the deceased suffering from “permanent ligamentous instability” of any affected joints or of his lumbar spine.  Additionally it was submitted that there was no material pointing to the deceased having “disordered joint mechanics” within the meaning factor 5(e) of Instrument No.81 of 2001.  It was submitted that to reach findings of satisfaction of those factors would need medical support of which there was none.

68.     In so far as it was alleged that the deceased suffered from a trauma to the lumbar spine and or a trauma to affected joints, it was submitted that there was no material raised pointing to such a conclusion nor was there any material pointing to the occurrence of any injury.  It was submitted that it would be impossible to identify the occasion of clinical onset.

69.     

In so far as assessment of the deceased’s lifestyle was concerned, it was submitted that the deceased, in the latter years of his life, was in widespread pain probably associated with the diagnosis and treatment of prostate cancer.  It was submitted that in the event of any of the conditions being found to be

war-caused, that a finding of pain affecting lifestyle would be impossible because of the overriding presence of pain referable to prostate cancer.  Additionally it was noted that there was apparent improvement in the applicant’s back and hip pain by the administration of palliative radiotherapy which Mr Douglass submitted would be inconsistent with the presence of osteoarthrosis.

70. To the extent that Mr Horan in Mildura submitted that s8 and s9 of the Veterans’ Entitlements Act 1986 was relevant, Mr Douglass submitted that those submissions should be dismissed particularly in regard to the recent Full Federal Court decision of Woodward and Gundry v Repatriation Commission [2003] FCAFC 160.

71.     Mr De Marchi was unaware of that decision and leave was given to lodge written submissions after he had the opportunity to peruse that decision.  When his submissions were lodged he recorded that “the court in Woodward appears to have overlooked a fundamental difference between s9(1)(a) and the other sub-sections of s9 namely that the Act is always distinguished between operational service and other service rendered by veterans. Clearly s9(1)(a) distinguishes an occurrence that may or may not have arisen or may or may not be contributed by operational service, it is sufficient if it simply happened on service, viz it was temporal, not causally related to service. If the injury or disease resulted from that occurrence no further causal connection is required pursuant to s9, the injury or disease is deemed to be war-caused”.

72.     Later in the submissions he recorded:

it is submitted that the dicta in Keeley was correct, there is no causal relationship required other than temporal between the event and operational service.

It is submitted that the court was wrong in Woodward when it determined that s9(1)(a) required a causal link between service and the injury or disease. All that was required was a link between the occurrence and the injury or disease.

As SOP’s deal with the relationship between service and conditions, they play no part in s9(1)(a) determinations.

73. Mr Douglass in his written reply to the written submissions of Mr De Marchi concerning the application of s9 submitted that the decision in Woodward had direct application to counter the submission made by the applicant.  It was submitted that Woodward expressly dismissed a finding of entitlement under s9 in the absence of a finding of a reasonable hypothesis by reference to a Statement of Principle.

74.     In his reply to the respondent’s submissions, Mr De Marchi essentially repeated his earlier submissions.

Conclusion and Reasons for Decision

75.     In Repatriation Commission v Hancock (2003) FCA 711 Selway J decided that prior to consideration of the stages of analysis in Repatriation Commission v Deledio (1998) 83 FCR 82, there needed to be a finding on the balance of probabilities of the injury or disease. This stage is of course critical because in the absence of such a finding consideration under s120(3) and (1) – indeed identification and application of a Statement of Principle – is impossible (refer also Fogarty v Repatriation Commission (2003) FCAFC 136).

76.     In the present application the late veteran claimed acceptance of the condition of osteoarthrosis affecting his hips, ankles, feet and knees.  He also claimed acceptance of the condition of lumbar spondylosis.

77.     I am satisfied on the balance of probabilities and find as a fact that at the commencement of the assessment period, the late Mr Jones did suffer from osteoarthrosis affecting his hips, ankles and knees.  There is a multitude of medical data which would support this conclusion.

78.     I am not satisfied however that there is material which supports a finding on the balance of probabilities of osteoarthrosis affecting the deceased’s feet.  In the claim dated 27 April 2001 (T-6) and the claim made on 31 May 2001 (T-9) osteoarthosis of the feet is not claimed.  The only reference I can find to any condition in the medical or other information lodged referable to the applicant’s “feet” is at page 16 where on 19 September 1983 a diagnosis was then made of fascitis of both feet.  The “service requested” of the respondent was “podiatry”..  I can find no reference in any of the other material lodged – including the medical data supplied by Dr Hession, where a foot injury or injuries to the feet had been treated by him.  I also note that Dr Hession did not record any foot injury or feet injuries as service related in the questionnaire that he completed at T-8.

79.     In so far as the deceased claimed lumbar spondylosis, I can find no reference in any of the medical material to the applicant’s complaints of back pain being given that diagnosis.  There are many references to the applicant complaining of back pain and treatment being provided for it.  There are references in a number of x-ray reports to the applicant suffering from a degenerative process in his lumbar spine.  Whilst diagnosis pursuant to a Statement of Principle is impermissible (refer Benjamin v Repatriation Commission (2001) FCA 1879) I have – in the absence of any other material or submissions – had no alternative but to have recourse to the definitions of lumbar spondylosis as it appears in Instrument No.46 of 2002. By reason only of that definition containing a reference to degenerative changes affecting lumbar vertebrae and intervertebral discs I am – for the purposes of this application – prepared to find on the balance of probabilities that the deceased in fact did suffer from lumbar spondylosis.

80.     By reason of the present application having commenced by a claim upon the respondent after 1994, consideration must be given to the four stages of analysis recorded in Deledio..  Those stages are 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.

81.     In considering these stages the following analysis will deal with all of the claimed conditions except osteoarthrosis of the deceased’s feet (refer earlier).

Lumbar Spondylosis

82.     There is material which points to a hypothesis connecting the injury of osteoarthrosis of hips, knees and ankles.  There was also a hypothesis connecting service with lumbar spondylosis.  Stage two is also satisfied because there are applicable Statements of Principles.

83.     The claim with respect to lumbar spondylosis fails however because I cannot be satisfied that a reasonable hypothesis has been raised consistent with the template found within the Statements of Principles.

84.     In so far as the claim is made for acceptance of the condition of lumbar spondylosis, I note that the first reference in the medical data to the deceased’s back was on 30 June 1942 where at page 15A there is a diagnosis made of “pain in back”..  No cause or explanation for that presentation and diagnosis is provided.  The next reference is on 13 July 1942 where the diagnosis recorded is “headaches, pain in eyes, back and joints”.  The sick parade card records that the applicant’s temperature was then taken and it was found to be 103 degrees.  On 17 July 1942 a diagnosis was made of “post dengue aching”..  I am satisfied that the back pain in July 1942 was referable to dengue fever.  None of the other medical records completed during service or at discharge record any back pain or back injury.  The claim at T-6 records (page 20 and 21) that the back (and hip) “problems” were caused by a number of “rough landings” as a flying instructor in Canada.  In the section specifically dealing with “back problem” the cause is recorded as “problems commenced during my service in 1942 and have continued”..  Mr Jones, in the form that he completed at page 64, records that the symptoms of back problems were first noticed in 1942 by reason of jumping into slit trenches during Japanese bombing raids.  He said he suffered acute pain in his lower back for which symptoms were felt immediately but symptoms lasted 24/48 hours and then gradually decreasing “until the next bombing raid and have continued ever since”.  Treatment was not then obtained.  Dr Hession diagnosed the clinical onset of lumbar spondylosis as “progressive over years” without any predisposing factors (page 44).  At page 58 Dr Hession recorded that the veteran had not suffered from a “trauma to the lumbar spine” and at page 56 he recorded that the veteran had not suffered from a permanent ligamentous instability of the lumbar spine.

85.     In so far as factors (g) and (h) are concerned, I cannot be satisfied on the material lodged in these proceedings that the late veteran did suffer from permanent ligamentous instability of his lumbar spine before the clinical onset of lumbar spondylosis nor can I be satisfied that there is material pointing to the late veteran suffering a “trauma to the lumbar spine before the clinical onset of lumbar spondylosis”.  Additionally I am satisfied that there is no material which points to the definitions of “permanent ligamentous instability” or “trauma to the lumbar spine” being achieved.

86.     There is certainly nothing which permits satisfaction of the definition of “permanent ligamentous instability of the lumbar spine” as that definition is found within Instrument No.77 of 2002.  The definition of “permanent ligamentous instability” as found within Instrument No.46 of 2002 is of course no where near as rigid as the latter definition.  However in the presence of the form completed at page 56 by Dr Hession which finds that the late veteran did not have a permanent ligamentous instability of his lumbar spine I cannot reach any conclusion other than finding a failure to meet the template of the Statement of Principle.

87.     The definition of trauma to the lumbar spine – under both definitions – does not permit a conclusion that there is material which points to the late Mr Jones suffering a “discreet injury” producing signs and symptoms of pain and tenderness and either altered mobility or range of movement which lasted for a period of at least seven days.  The veteran himself recorded that the symptoms lasted between 24/48 hours.

88.     Therefore the hypothesis which has been raised does not contain one or more of the factors within either of the applicable Statement of Principles (refer Repatriation Commission v Gorton (2001) FCA 1194). The hypothesis in these circumstances is deemed not to be reasonable and this part of the claim must fail.

Ankles, Knees and Hips

89.     In so far as the late veteran claimed osteoarthrosis affecting his ankles, knees and hips, I note that he first complained of a problem with his right ankle described as a “mild sprain” on 4 June 1945 (page 15B).  On 18 July 1945 he presented with a recurrence of sprain.  On both occasions his ankle was strapped.  These presentations were at Deniliquin in New South Wales many years after he had evacuated Port Moresby.  The first reference in the medical records to a problem with the applicant’s knees was on 2 February 1979 (page 15C).  On 31 December 1980 a doctor at the Repatriation General Hospital found that the deceased had “severe osteoarthrosis in all joints involved”.  Save therefore for the applicant’s presentation with a sprained right ankle on 4 June 1945 and again on 18 July 1945, the first documented presentation by the applicant for treatment of the conditions remaining in issue in these proceedings was on 2 February 1979.

90.     Dr Hession found that there were no predisposing factors for the development of osteoarthrosis in the applicant’s left and right knees (page 36 and 38) and that the condition had been progressive and gradually worsening.  He gave similar opinions with respect to the left and right hips (page 40 and 42).  Dr Hession recorded that the veteran did not suffer from permanent ligamentous instability in both knees (page 45) nor did he suffer from a trauma in both knees (page 46).  A similar opinion was expressed by Dr Hession with respect to the absence of a trauma affecting the deceased’s hips however he has not expressed any opinion – nor would it appear that he was asked – concerning whether there was any permanent ligamentous instability of the hips.  The clinical onset of the “hip problems” was found by him to be “progressive over years” (page 50).

91.     With respect to the applicant’s ankles, Dr Hession recorded at page 48 that the clinical onset of both ankle problems was “over years”..  He found that the veteran did suffer a trauma to his left ankle “in air force high jumping as part of PT”..  He found that the trauma to the joint resulted in symptoms within 24 hours of pain and tenderness and altered mobility or range of movement evidenced by “crutches for a few days only, nil to suggest complete lig tear, sounds like a sprain/partial tear but always a bit weaker since” (page 48).  It is noted that Dr Hession refers to the deceased’s left ankle only with the trauma having occurred by high jumping.  Mr Jones referred to both ankles suffering injury during bombing raids in 1942 and his right ankle being injured high jumping in 1945.  He also refers to his sick parade report of 1945.

92.     The material contained within the veteran’s questionnaire at T-9 refers to ankle, knee and hip injuries producing symptoms “immediately” but lasting between 24/48 hours and then “easing gradually”.

93.     On the material, the deceased appears to have suffered either a trauma to his right ankle before the clinical onset of osteoarthrosis and or permanent ligamentous instability.  There is material of the deceased presenting in June and July 1945 with a right ankle sprain.  There is a reference made by him in his claim to a presentation in 1945 following an episode of high jumping during service.  Dr Hession also describes that event but refers to the left ankle.  I prefer the history of the deceased who described his right ankle being injured when high jumping and the contemporaneous sick parade notes made in 1945 also describing his right ankle.  The history taken by Dr Hession of the deceased being prescribed crutches and analgesics with a suspicion of a sprain or partial ligamentous tear, satisfies in my view the definitions of “trauma to a joint before the clinical onset of osteoarthrosis” and or “permanent ligamentous instability”

94.     In so far as Instrument No.81 of 2001 contains a factor referring to “disordered joint mechanics” I am satisfied that the left ankle, both knees and both hips fit within that factor as defined in paragraph 8.  The medical impairment assessment specifically with respect to ranges of movement found at page 33 is consistent with a “rotation or angulation deformity of the hip, knee or ankle joint of the affected limb” as those words appear at (b) of the definition of “disordered joint mechanics”.

95.     Therefore on balance I am satisfied that the hypothesis with respect to the ankles, knees and hips is reasonable because it fits within, and is consistent with the template found within the applicable Statement of Principle.

96.     However whilst the hypothesis that has been raised contains one or more of the factors within the Statement of Principle which the Repatriation Medical Authority has determined to be the minimum which must exist, the hypothesis will only be reasonable if it is “related to the persons’ service” (refer stage three of Deledio, s196B(2)(d) and (e) and paragraph 4 of the Statement of Principle).

97.     I cannot find however that the injuries of  left ankle, both knees and both hips are related to relevant service.

98.     There is no material which points to any left ankle, hips or knee injuries being reported during service or at discharge.  Dr Hession reports that these injuries were “progressive”, “over years” and “without particular trigger”.  He has no history in the questionnaires he completed at T-8 of any of these injuries being related to relevant service except for the right ankle where he has specifically referred to the injury having occurred in service.  Each of the forms refers to a claim being made for “service related compensation” and the information that he provided was intended for consideration by the respondent in assessment of the development, or onset or worsening of the condition.  Additionally each claim form has a Department of Veterans’ Affairs letterhead and Dr Hession’s own clinical notes of 16 May 2001 – being the date that he completed these questionnaires – record that he attended Mr Jones for a “Repat medical”..  Despite this the only reference made by him to any of the injuries being service related was the “left” ankle by high jumping.

99.     The first clinical record of treatment for any of these injuries was on 2 Feburary 1979 when Mr Jones attended Dr Kagan with a six month history of tenderness in his left knee (page 15C).  A history taken on 16 March 1984 (page 15I) records a three to four year history of sore knees and ankles.  That history would be approximately consistent with the history taken in February 1979 which would demonstrate the first presentation for treatment of these conditions was approximately 34 years after discharge.

100.   I do not doubt that the deceased did suffer discomfort and pain in his knees, ankles and feet associated with jumping into trenches.  On his own account however he did not attend for treatment and symptoms resolved within 24/48 hours.  There is nothing however which points to the condition of osteoarthrosis of the left ankle, knees and hips, first becoming apparent in the late 1970’s and early 1980’s, being related to any relevant service rendered by the deceased.  If it was, no doubt Mr De Marchi would have lodged medical reports in support.  Perhaps this would explain why he did not lodge the report of Mr Hadley.

101.   I cannot conclude that these injuries under the diagnosis of osteoarthrosis are related to relevant service.  In the application therefore of the fourth stage of the Deledio analysis, I am satisfied beyond reasonable doubt that these injuries are not war-caused.

102.   I am satisfied that the hypothesis with respect to the right ankle is a reasonable hypothesis and that the factor with respect to the trauma to the joint is satisfied.  I am also satisfied that the injury did arise out of inter-service athletics namely high jumping and in those circumstances it was an injury which was related to relevant service rendered by the veteran.  I am not satisfied beyond reasonable doubt that this injury is not war-caused.

103.   There are two other issues which may be rapidly dealt with.

104.   Mrs Jones said that her husband had treatment in Townsville.  She raised this in evidence to indicate that treatment had been undertaken with respect to the claimed conditions despite the absence of contemporary medical documentation being lodged.  Page 2 of the T-documents indicates that Mr Jones was “attached” to Townsville between 3 May 1942 and 21 May 1942.  I am unable to reconcile that entry against the entry on page 1 where Mr Jones was posted to Port Moresby on 19 May 1942.  In any event if he did have treatment at Townsville in May 1942 those records, if they exist, are not contained within the documents lodged nor was any submission made with respect to the treatment at Townsville, if any, by Mr De Marchi in his submissions.

105.   In her statement Mrs Jones said that she was of the belief that the “severe pain in his knees and ankles aggravated the back and hips”..  The meaning of this expression is unclear.  If it means that there was some pain or discomfort or injury in the back and hips referred from injury affecting the knees and ankles, I am unable to find any material which would support that proposition.

106. In conclusion Mr De Marchi relied on s9 of the Veterans’ Entitlements Act 1986 (refer earlier). He submitted that the Full Federal Court was “wrong” in its decision in Woodward because “all that was required was a link between the occurrence and the injury or disease”.  Additionally he submitted that the Full Court “overlooked” the differences between the sub-sections of s9 because “the Act has always distinguished between operational service and other service rendered by veterans”.

107. The Full Federal Court did extensively consider the application of s9 and analysed it at some length and in some detail. The analysis made by the Full Federal Court is clearly correct. The Court found at paragraphs 80 - 89 inclusive, as follows:

80Mr Woodward further submitted that it was the experience of the veteran which was of paramount concern and not whether the stressors were "objectively" of such a nature as might actually have caused such an experience. It was accepted that for the purpose of the relevant SoPs the "experience" had to be based on an "event". It was also accepted that a figment of the imagination, such as might arise through "paranoid ideation", would not be sufficient to meet this requirement. However, there was no suggestion of any such delusion on the part of Mr Woodward. It was submitted that it was his "experience" which had to be the focus of the AAT's deliberations, a point which it appeared not to have appreciated.

81In response to these submissions, the respondent acknowledged, in written submissions filed after the hearing of this application, that the AAT's analysis of the terms "experienced" and "confronted with", taken from Re Slattery "may be thought too narrow". However, the respondent submitted that, in the present case, the AAT had not based its conclusion (that the material before it did not point to a hypothesis of the kind required by the relevant SoPs) on any finding that Mr Woodward had not "experienced", "witnessed" or been "confronted with" an event or events. Rather, it was submitted, the AAT's conclusion was that the events identified in Mr Woodward's evidence were not events that "involved actual or threatened death or serious injury to himself or others". In other words, any error of law on the AAT's part had not affected the ultimate outcome of the proceeding.

Conclusions regarding the common question of law

82In our opinion, the respondent's submissions regarding the common question of law should be accepted. We consider that the AAT correctly held that the passages in the joint judgment of Lee and Cooper JJ in Keeley, upon which each applicant relied, were dicta, and not ratio. Notwithstanding that fact, they are entitled to be accorded great respect as the considered views of two members of the Full Court in a joint judgment. We would not lightly depart from them but, after careful consideration, we have concluded that these passages contain erroneous statements of law, and should not be followed.

83To briefly reiterate what was said earlier, each applicant submitted that where a claim is brought under either s 8(1)(a) (in the case of death) or s 9(1)(a) (in the case of injury or disease) the claimant need only point to a temporal, and not a causal, relationship with operational service. Accordingly, so it was submitted, any such claim must be determined without reference to s 120A(3), or any SoP which might be in force.

84There was also a variant of this submission. That too was based upon the observations in Keeley. It was submitted that any claim brought under either ss 8(1)(a) or 9(1)(a) which did not require recourse to "medical-scientific" opinion must be determined without reference to s 120A(3), or any SoP which might be in force. It was submitted that both Mrs Gundry and Mr Woodward had brought such claims.

85We are unable to accept either variant of this submission. Turning to the first variant, ss 8(1)(a) and 9(1)(a) provide that a veteran's "death", or "injury or disease", will be taken to be war-caused where it results from an "occurrence that happened while the veteran was rendering operational service". The observation in Keeley that a provision in those terms contemplates a link with service that may be no more than temporal, and that the connection with service, "may be coincidental and not causal" cannot, in our view, be reconciled with the language of these provisions.

86Sections 8(1)(a) and 9(1)(a) plainly require first, an "occurrence" that happened during operational service. That is, there must be a temporal relationship between the event (which constitutes the occurrence) and the service in question. At that level, the service need not cause, or contribute to, the event. However, the claimed "death" in the case of s 8(1)(a), or "injury or disease" in the case of s 9(1)(a), must result from that event or events. The words "result from" are words of causation. They require that there be a causal link between the veteran's service, on the one hand, and the "death", or "injury or disease", that "happened during operational service", on the other.

87This conclusion finds support in Repatriation Commission v Law (1980) 31 ALR 140 in which a Full Court constituted by Bowen CJ, Brennan and Lockhart JJ set out the principles which governed the legislative precursor to s 8(1)(a). They noted that s 101(1)(a) of the Repatriation Act 1920 (Cth) conferred entitlement to a pension upon the death of any member of the forces who was employed on active service and whose death had "resulted from any occurrence" that happened during his period of service. They said at 149:

"An entitlement is not conferred by para (a) unless there has been an `occurrence', there is a relationship between that occurrence and the death (a relationship expressed by the phrase `resulted from'), and there is a temporal coincidence of the occurrence with the period of service." (Emphasis added.)

See also Calman v Commissioner of Police (1999) 167 ALR 91 at 101.

88As with all claims under ss 8 and 9, a claim that "death", or "injury or disease", is war-caused (where that claim relates to operational service) is to be determined by applying the standard of proof set out in s 120(1). With the singular exception of s 8(1)(f), we can see no basis for any distinction between a claim brought under par (a) of ss 8(1) or 9(1), and a claim brought under some other paragraph within either of those sub-sections.

89Once s 120(1) operates, as it does when either ss 8(1)(a) or 9(1)(a) is invoked, s 120(3) is necessarily brought into play. That sub-section provides that the highly beneficial standard of proof set out in s 120(1) is inapplicable in support of a veteran's claim unless the decision-maker is of the opinion that the material before it raises a reasonable hypothesis connecting the injury, disease or death, with the circumstances of the veteran's service: Bushell v Repatriation Commission (1992) 175 CLR 408 at 416 and Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.

108. There seems to be a trend in recent months for veteran’s practitioners to argue that s8 or s9 should apply to the exclusion of Statement of Principles. Hopefully when the decision in Woodward becomes known and understood that that trend will cease.

109.   In all of the circumstances the decision under review is varied to the extent that I am satisfied that the condition of osteoarthrosis of the deceased’s right ankle is war-caused.  I am unable to make any assessment under the GARP in the absence of a combined impairment assessment being lodged.  I would hope by the lifestyle questionnaire completed by Mr Jones (page 93) that the representatives of the parties might achieve agreement as to the appropriate impairment rating to be attached having regard to his description of pain and discomfort associated with the right ankle.  I would also offer the following opinion, namely, the complaint of pain by Mr Jones in the months leading to his demise and the prescription of palliative radiotherapy appears to have been with respect to his back and hips only.  I would trust in the circumstances that any assessment of impairment of the late veteran with respect to his right ankle would not be clouded or confused with pain and discomfort associated with his metastatic prostate cancer.

110.   In all other respects the decision under review is affirmed.

I certify that the 110 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member.

Signed:          Elsa Genovese
  Personal Assistant

Date/s of Hearing  20 May (Mildura) & 4 August 2003 (Melbourne)
Date of Decision  21 November 2003
Solicitor/s for the Applicant       Mr J Horan (Mildura) & Mr D De Marchi (Melb.)
Counsel for the Respondent     Mr R Douglass