Landy and Repatriation Commission

[2008] AATA 213

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 213

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V200600884

VETERANS'        APPEALS       DIVISION		)
Re		MERVYN KENNETH LANDY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr Kerry Breen, Member

Date18 March 2008

PlaceMelbourne

Decision      The Tribunal sets aside the decision under review; and

1.in substitution decides that the conditions of otitic barotrauma, chronic perforation of the right ear drum, recurrent otitis media and recurrent otitis externa are war‑caused with effect from 20 July 2005; and

2.remits the matter to the respondent to assess the applicant’s rate of pension in accordance with these reasons for decision.

(sgd) Kerry Breen

Member

VETERANS’ AFFAIRS – entitlement ‑ operational service ‑ diving accident in 1960 ‑ otitic barotrauma ‑ chronic perforation of the right ear drum ‑ recurrent otitis media ‑ recurrent otitis externa ‑ whether war‑caused ‑ decision set aside.

Veterans’ Entitlements Act 1986 ss 9, 13,14, 20, 120, 120A and 177

Repatriation Commission v Deledio (1998) 83 FCR 82

Woodward and Another v Repatriation Commission (2003) 131 FCR 473

Byrnes v Repatriation Commission (1993) 177 CLR 564

Bushell v Repatriation Commission (1992) 175 CLR 408

Repatriation Commission v Hancock (2003) 37 AAR 383

Lees v Repatriation Commission (2002) 125 FCR 331

REASONS FOR DECISION

18 March 2008 Dr Kerry Breen, Member   

1.      Mr Mervyn Landy served in the Royal Australian Navy (the RAN) from 1956 to 1962.  He trained as a ships’ diver.  He claims that during a dive in early 1960 a burst of high pressure air caused damage to his right ear drum and that this has led to a number of long term problems with his right ear including a chronic perforation of the right ear drum, recurrent otitis media and recurrent otitis externa.

2.      On 20 October 2005 he submitted a claim to the Repatriation Commission (the Commission) for recurring ear infections and (R) perforated tympanic membrane and sought an increase in disability pension.  On 9 March 2006, a delegate of the Commission determined that the appropriate diagnoses for the claimed conditions were otitis media, perforation of the (right) tympanic membrane and conductive hearing loss in the right ear, that the conditions were not war-caused and that the disability pension should be increased to 40 per cent of the general rate.

3.      On 15 May 2006 Mr Landy sought a review of the decision by the Veterans’ Review Board (the Board).  On 22 August 2006 the Board varied the decision under review to include otitis externa and consented to Mr Landy’s request that the application, as it related to conductive hearing loss in the right ear, be withdrawn. The Board otherwise affirmed the decision under review.

4.      Mr Landy now seeks a review of that decision by this Tribunal.

THE ISSUES BEFORE THE TRIBUNAL

5.      The issues to be determined include the diagnoses of Mr Landy’s claimed conditions, the date of onset of those conditions and whether the conditions were causally related to Mr Landy’s operational service.  That Mr Landy had rendered operational service was not in dispute.

6.      Mr Landy contended that the origin of his ear problems can be connected to a particular injury (otitic barotrauma) sustained while diving for the RAN in 1960.

7.      The Commission contended (in brief) that there is insufficient evidence, by way of an incident report or a contemporaneous medical report, to link any injury which may have occurred during a dive in 1960 with ear problems which began to trouble Mr Landy several years later.

THE BACKGROUND

8.      Mr Landy served in the RAN as an engineering mechanic from 30 July 1956 to 29 July 1962.  He rendered operational service on board HMAS Quickmatch in the Far East Strategic Reserve for six periods including from November 26 to 24 December 1959, from 2 January to 20 February 1960 and from 23 February to 6 March 1960.  He undertook the necessary training to become a ship’s diver and from 1959 took part in diving work on a frequent basis.  His qualification permitted him to use compressed air breathing apparatus to a depth of sixty feet and to carry out examinations of ships’ hulls and underwater fittings.  He stated that in about February 1960, while participating in a buddy dive exercise beneath his ship, he had an accident.  The buddy dive involved two divers sharing one underwater breathing mouthpiece.  The mouth piece was connected to a hose which brought compressed air from gas cylinders aboard his ship.

9.      He stated that he was about thirty feet below the surface when suddenly he experienced a burst of high pressure air which had the effect of forcing the mouth piece from his mouth and at the same time knocked the senses out of me and caused bleeding from his ears and nose.  He surfaced rapidly and was helped on to the ship and taken to the sick berth.  He recalled having a shocking headache and being dazed.  He was given tablets by the sick berth attendant and told to lie down and rest.  He made a gradual recovery and was able to return to ordinary duties, although he was unsure how long this took.

10.     He stated that he was informed by other members of the crew that the sudden burst of high pressure air was caused by an unauthorised seaman who entered a roped-off area where the compressed air cylinders lay and knocked the control valve.

11.     Some weeks later, after the ship had returned to Australia, Mr Landy tried to dive again but found that at about two metres depth he suffered pain in the ears, more severely in the right ear, such that he aborted that dive.  He never dived again.

12.     After leaving the RAN, Mr Landy held a number of different jobs.  He stated that it was some time before he realised he was having ear problems, at first suffering ear ache and later infections.  He said that he had received treatment for middle ear infections in the 1980s and was referred to an Ear Nose and Throat (ENT) specialist at the Western Hospital at that time.  He was told that he had a hole in his ear drum and needed surgery but he chose not to have surgery.

13.     Mr Landy turned to water sports as part of a get fit swimming campaign in the 1980s and experienced a further middle ear infection.  Since then he has avoided public swimming pools and has used protective ear plugs when swimming or showering.

14.     In 2003 he was involved in an incident where a radiator hose burst causing severe burns to his head and shoulders and required hospitalisation at the Alfred Hospital.  In hospital he experienced another bout of right middle ear infection and was sent home after only three days to receive district nursing help for the treatment of his burns.

15.     He has had two operations undertaken by ENT specialist Dr Michael Wilson to try to repair his right ear drum.  He understands that he still has a very small perforation of that ear drum.

THE LEGISLATION

16. The eligibility criteria for a service disability pension are set out in s 13 of the Veterans Entitlements Act 1986 (the Act).Section 13(1) of the Act provides that where:

(a)       the death of a veteran was war‑caused; or

(b)       a veteran is incapacitated from a war‑caused injury or a war‑caused disease;

the Commonwealth is, subject to this Act, liable to pay:

(c)in the case of the death of the veteran—pensions by way of compensation to the dependants of the veteran; or

(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;

in accordance with this Act.

17. War-caused injuries or diseases are defined in s 9 of the Act. Section 9(1)(a) is relevant and it provides:

War-caused injuries or diseases

(1)       Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

…

18.     As the applicant has performed operational service, as defined in s 6 of the Act, the determination of whether his claimed conditions are war-caused is to be made by applying s 120(1) and s 120(3) of the Act.  Those sections provide relevantly as follows:

120 Standard of proof

(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

…

(3)       In applying subsection (1) or (2) 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 the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)       that the injury was a war-caused injury or a defence-caused injury;

(b)       that the disease was a war-caused disease or a defence-caused disease; or

(c)       that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.

19.     Under s 120A of the Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (the RMA) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP.  This follows from s 120A(3) of the Act, which provides:

(3)       For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)       a Statement of Principles determined under subsection 196B(2) or (11); or

(b)       a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

Note: See subsection (4) about the application of this subsection.”

20.     Section 196A of the Act provides for the establishment of the RMA.  Section 196B of the Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine an SoP in respect of that kind of injury, disease or death, setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service.  The reference in s 196B(2) to a particular kind of injury, disease or death being related to service is expounded in s 196B(14).  This provides, in effect, that a factor causing an injury is related to service rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.

21.     Thus the Tribunal is required to determine that the injury is a war-caused injury or the disease is a war-caused disease unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.  In applying that standard of proof, the Tribunal must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the injury or disease was war caused if, after consideration of the whole of the material before it, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury of disease with the circumstances of the particular service rendered by the person (s 120(3) of the Act).

22.     Because Mr Landy’s claim was made on or after 1 June 1994, s 120A applies to the hypothesis advanced drawing the connection between operational service and the injury or disease suffered by the veteran. 

23.     In applying the SoP provisions set out under s 120 of the Act, the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 set out the four stages of analysis to be used. The Court said at 97-98:

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.

24.     Where an SoP is not in force, there is legal precedent to guide the Tribunal. As Selway J said in Repatriation Commission v Hancock (2003) 37 AAR 383 at [10], the second sentence of paragraph 2 of the Federal Court’s pronouncement in Deledio was obiter, and is not correct.  Where no SoP is in force, the veteran’s application will not necessarily fail, and is to be determined in accordance with s 120(3) and s 120(1) of the Act, and in accordance with the approach explained in cases such as Byrnes v Repatriation Commission (1993) 177 CLR 564.

THE DIAGNOSES

25.     The diagnosis of Mr Landy’s ear problems was not in issue before the Tribunal.  Nevertheless, I must first make a finding in regard to the diagnoses. Having regard to the uncontested evidence presented by his treating specialist Dr Michael Wilson, I am satisfied on the balance of probabilities that Mr Landy suffers from the following medical conditions: otitic barotrauma, chronic perforation of the right ear drum, recurrent otitis media and recurrent otitis externa.

26.     The first of the Deledio steps requires the Tribunal to consider all of the material which is before it and determine whether that material points to an hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant.  There is no question of fact-finding at this stage.  If no such hypothesis arises, the application must fail.

THE HYPOTHESIS

27.     While there are four medical conditions under consideration, there is in effect a single hypothesis being advanced on behalf of Mr Landy.  That is, that he first suffered an event of otitic barotrauma while on operational service and that the barotrauma also caused a perforated ear drum.  While much of the acute trauma resolved rapidly, Mr Landy was left with a perforated right ear drum which led eventually to recurrent otitis media and recurrent otitis externa.  Accordingly, the original injury is connected to his subsequent diagnoses of chronic perforated ear drum, recurrent otitis media and otitis externa and thus all those conditions are war‑caused.

28.     Overall, I am satisfied that that material before me points to a hypothesis which connects Mr Landy’s four medical conditions with the circumstances of his operational service, that is his diving accident and associated barotrauma.  That material includes Mr Landy’s description of the original event, a description which is consistent with acute barotrauma to his ear; his inability to return to diving, which is consistent with a continued perforation of his ear drum; and the medical evidence of his treating specialist which allows for the possibility that the subsequent diagnoses of otitis externa and otitis media are linked to the original barotrauma and a persistent perforation of the right ear drum.

29.     I next turn to ‘step two’ of Deledio, that is, are there in force SoPs determined by the RMA relevant to Mr Landy’s claimed conditions?

30.     The RMA has determined SoPs for three of the four medical conditions claimed by Mr Landy, otitic barotrauma, otitis media and otitis externa.  The relevant SoPs are Instrument Nº 27 of 2001 for otitic barotrauma, Nº 1 of 2003 for otitis media and Nº 73 of 2001 (as amended by Nº 42 of 2002) for otitis externa.  For the fourth condition of perforated ear drum, I accept the contention put to me by Counsel for Mr Landy that in evaluating the possible links between this condition and Mr Landy’s operational service, I need to have regard the High Court of Australia’s decisions in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.

31.     I now turn to the ‘step three’ from Deledio.  This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs.  This step involves considering all of the material before me, but without making any findings of fact at this stage of the process.  The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.

32.     I start with Instrument Nº 27 of 2001 for otitic barotrauma, where the condition is defined as damage to the middle or inner ear arising from inequalities in the barometric pressure on each side of the tympanic membrane.  Factor 5(a) of the SoP requires as a minimum, before it can be said that a reasonable hypothesis has been raised, that Mr Landy was exposed to an abrupt change in the barometric pressure surrounding the person at the time of clinical onset of otitic barotrauma. I consider that the hypothesis raised by the material before me is consistent with factor 5(a) of the SoP, and so by virtue of s 120A(3) of the Act, the hypothesis connecting Mr Landy’s otitic barotrauma with the circumstances of his operational service is reasonable.

33.     This material includes the evidence provided by Mr Landy and supported by the unchallenged evidence provided to me by his fellow crew member Mr Aked.  Mr Aked was clear in his evidence that he saw, and spoke with, a very distressed Mr Landy as he was being helped to the sick berth and was equally clear about the explanation for the accident as was rumoured among the ship’s crew.  Mr Landy’s account is supported by the Writeway Research Services report of 30 August 2007, in that there was a record of a diving exercise conducted from Quickmatch, while the ship was in Singapore.

34.     The second medical condition in the sequence of the unitary hypothesis is the diagnosis of a perforated ear drum, claimed to have occurred at the time of the barotrauma and have persisted thereafter.  As there is no SoP for perforated ear drum, I must apply the standard of proof as governed by s 120(1) and (3) of the Act as existed before the 1994 amendments to the Act.  In particular I take heed of the judgement of Mason CJ, Deane and McHugh JJ in Bushell and the approach taken in Byrnes.

35.     I find that there is sufficient material before me to support the reasonableness of this second leg of the hypothesis.  This material includes the evidence of Mr Landy regarding bleeding from his ears and his inability to return to diving some weeks later as well as the evidence of ENT specialists Dr Wilson and Dr Scott Squires.

36.     The third medical condition is otitis media.  The SoP for otitis media is Instrument Nº 1 of 2003 where otitis media is defined as an inflammatory process within the middle ear.  Mr Landy needs to meet factor 5(f) of the SoP: suffering from rupture of the tympanic membrane of the affected side within the seven days immediately before the clinical onset of otitis media.

37.     I believe that there is sufficient material before me to establish a reasonable hypothesis that Mr Landy does suffer from otitis externa and that factor 5(f) can be fulfilled.  This material includes the evidence of ENT surgeon, Dr Wilson and the medical records of Mr Landy’s general practitioner, Dr Jim Romas; as well as the aforementioned material pointing towards a rupture of the tympanic membrane (ie perforated ear drum).

38.     In passing, I accept the submission made by Counsel for Mr Landy that the term suffering from and within seven days in this context should not be construed as implying that the actual perforation must have occurred in the prior seven days.

39.     The SoP for otitis externa is Instrument Nº 73 of 2001 (as amended by Instrument Nº 42 of 2002) where otitis externa is defined as inflammation of the external auditory canal.  Factor 5(e) of this SoP is relevant:  suffering from chronic suppurative otitis media of the affected ear within the 30 days before the clinical onset of otitis externa.

40.     Again, I believe that there is sufficient material before me to establish a reasonable hypothesis that Mr Landy suffers from otitis externa and that this followed from chronic suppurative otitis media, which itself followed from a persistent perforation of the ear drum.  This material includes the evidence of Dr Wilson and the medical records of Mr Landy’s general practitioner, Dr Romas.

41.     The hypothesis raised by Mr Landy thus contains, for the three conditions for which there are SoPs, one or more of the factors which the RMA has determined to be the minimum which must exist, and be related to the person's service (as required by s 196B(2)(d) and (e)).  As the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  The hypothesis therefore fits within the template, and is deemed to be reasonable.  Thus, for the above three conditions, and consistent with steps one to three as outlined in Deledio, I cannot be satisfied beyond reasonable doubt that there is no factual basis for the claims made by Mr Landy.

42.     In relation to the condition of perforated right ear drum, for which no SoP exists, I am satisfied that there is sufficient material before me to support a reasonable hypothesis that Mr Landy has suffered from a perforated ear drum since his exposure to barotrauma in 1960.

FINDINGS OF FACT

43.     Turning to ‘step four’ of Deledio, I now consider my findings of fact.  This involves making findings of fact from the material before me, bearing in mind the provisions of s 120(1) of the Act, to the effect that the claim will succeed unless I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that the incapacity in question was war-caused.  If I am not so satisfied, Mr Landy’s claim must succeed by virtue of s 120(1) of the Act.  In examining this question, I note that there is no onus of proof (see s 120(6) of the Act), and the explanation of the role of this Tribunal as an administrative decision-maker in Bushell at 424‑425. I also refer to Byrnes at 571, where Mason CJ, Gaudron and McHugh JJ said:

…If a reasonable hypothesis is established, subs.(1) of s.120 is applied.  The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.

44.     I am satisfied that the accidental exposure to a burst of high pressure air as claimed by Mr Landy did occur and that as a result he suffered immediate damage to his ears.  I will come later to the nature of that damage and its consequences.  It automatically follows that I cannot be satisfied beyond reasonable doubt that...the incapacity did not arise from a war caused injury.

45.     In finding that Mr Landy did suffer an injury to his ears while on operational service, I base this on my assessment of the evidence provided by Mr Landy and supported by the unchallenged evidence provided to me by his fellow crew member Mr Aked.  Mr Aked was clear in his evidence that he saw, and spoke with, a very distressed Mr Landy as he was being helped to the sick berth and was equally clear about the explanation for the accident as was rumoured among the ship’s crew.  I have considered the importance to attach to the lack of any incident report or medical entry documenting this event.  While a contemporaneous account would have supported Mr Landy’s claim, its absence in my view does not mean that the accident did not happen.  As revealed in the Writeway Research Services report of 30 August 2007, there was a record of a diving exercise conducted from Quickmatch, while the ship was in Singapore, which was consistent with Mr Landy’s account.

46.     I am reinforced in my view with regard to the weight I should attach to the lack of a report of the Landy incident by the evidence provided by retired Captain John Macdonald (the author of the Writeway report), who was called by the Commission, and gave an account of a diving accident he had personally experienced when a seal failed on his underwater breathing apparatus and a sudden burst of high pressure air caused bruising to his lungs.  Captain McDonald informed me that this incident was not the subject of a written report either.  In addition, the subsequent course of events, starting with Mr Landy finding within a few weeks that his ears were too painful to permit him to dive again, supports the notion that something serious happened during the buddy dive.

47.     Having found that the accident happened as described by Mr Landy, it is not necessary for me to make any finding as to how the accident occurred.  However, I make the following observations.  The material available to me in terms of a photograph, and a cartoon diagram, of the compressed air cylinder was not particularly helpful.  The photograph was of a control valve of different design while the cartoon diagram suggested to me that the tap or t-piece valve was exposed in a manner such that it could readily be knocked by a shoed foot when the cylinder was lying flat on the deck.  Neither was the expert evidence of Captain Macdonald helpful as, despite his own involvement in a similar diving accident, he appeared reluctant to entertain the possibility that Mr Landy might similarly have experienced such an accident.

48.     I am satisfied that the original accident fulfilled the description of otitic barotrauma and that the barotrauma almost certainly was associated with immediate perforation of at least the right ear drum (tympanic membrane).  I base this conclusion on the evidence of Mr Landy regarding bleeding from his ears and his inability to return to even shallow diving some weeks later.  Both the bleeding and the later pain while attempting to dive are consistent with significant ear trauma as based on the unchallenged evidence of ENT specialist Dr Wilson.  Dr Wilson did not attempt to directly blame the alleged diving accident for the long term ear drum perforation but his evidence was that Mr Landy’s symptoms were absolutely consistent with barotrauma.  Dr Wilson also noted that chronic (ie in its medical meaning of long standing) perforation could occur with such an event and remain asymptomatic for many years until an infection set in.

49.     Dr Scott Squires, who currently holds the position of Officer in Charge of the Submarine and Underwater Medicine Unit at HMAS Penguin, gave evidence which supported the conclusion that bleeding from the ears as described by Mr Landy was consistent with barotrauma and ear drum perforation.  He also agreed that some perforations will not heal spontaneously and may later lead to infection in the middle ear should the person return to the water.  He stated that in his experience, perforations of the ear drum can be missed at examination of the ear by less experienced doctors, especially as the external ear canal may be narrowed in divers.

50.     I am also satisfied that Mr Landy suffers from the medical conditions of a perforated right ear drum (tympanic membrane), otitis media and otitis externa.  I base this conclusion on the uncontested evidence of Dr Wilson and the medical records of Mr Landy’s general practitioner, Dr Romas.  There does arise serious questions as to when Mr Landy first experienced symptoms of a perforated ear drum or first experienced symptoms of otitis media and otitis externa and whether these conditions are connected with the initial accident in 1960.  While I can appreciate that to the lay observer, it might seem strange that an unhealed perforation might remain without symptoms for many years, I place considerable weight on the uncontested evidence of Dr Wilson who clearly had seen this happen in his own specialist practice.

51.     I can also appreciate that a lay observer might be puzzled that such a perforated ear drum was not seen and reported when Mr Landy was medically examined at the time of leaving the RAN.  I have no difficulty accepting the expert evidence of Dr Wilson that at times perforations may not be seen by non-specialist doctors.  As already mentioned, Dr Squires, called by the Commission, gave very similar evidence.  It would have been helpful if Mr Landy had reported his ear accident at the time of his discharge from the RAN, but again common sense supports his later comment that all he wanted to do was to get back to civilian life.

52.     However, bringing together the nature of the original accident which I believe caused significant barotrauma, the subsequent ear pain on the one and only time Mr Landy attempted to dive again, and the much later development of middle ear infections, recurrent discharge from the right ear, and a perforation still not fully repaired after two operative attempts, I believe that it is medically sustainable that the initiating event is highly likely to have been a perforation of the right ear drum in 1960 as a result of barotrauma; and that the perforation, asymptomatic for twenty plus years, later revealed itself via recurrent middle ear infections.  By accepting such a medical explanation, I am also finding that the barotrauma and all its consequences represent operational service-related injuries.

53.     Counsel for the Commission submitted, among other matters, that I should attribute the ear drum perforation to the severe hot water burns that Mr Landy experienced in 2003.  However, this would mean that I would have to ignore the only expert evidence that I heard on this matter, from Dr Wilson.  He was very sceptical that the hot water caused any ear damage and was not prepared to concede that the middle ear infection at that time was directly related to either the burns or the hospital stay.  Counsel for the Commission also submitted that 2003 was the point of the first record of a perforated ear drum.  However, to accept that this was the start of the perforation, I would need to reject Mr Landy’s uncontested evidence that he was diagnosed with a perforated right ear drum when he sought an ENT opinion at the Western Hospital in the 1980s, as well as the mention of a possible perforated ear drum by Dr Ian Rossiter of the Department of Veterans’ Affairs in a minute dated 22 February 2006.

54.     Counsel for the Commission also drew my attention to the lack of documentation of the barotrauma event and submitted that it was highly significant in the light of the research undertaken by Captain Macdonald, who provided to the Tribunal copies of the RAN regulations in place at the time.  I am not persuaded by this argument; partly because of Captain Macdonald’s admission that his own accident was not the subject of an incident report and partly because the lack of such records in Mr Landy’s case was not a matter under Mr Landy’s control.

55.     Counsel for the Commission also put to me that at times Mr Landy’s recall of distant events was uncertain and that I should regard his evidence and that of Mr Aked with some caution.  My view is that given the passage of time, the accounts of Mr Landy and Mr Aked were remarkably consistent in their central elements.  I was also mindful of the consideration called for by s 119(h)(i) and s 119(h)(ii) of the Act regarding the effect of passage of time, which provide as follows:

(h)without limiting the generality of the foregoing, (the Commission) shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:

(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.

56.     I am satisfied that my reasoning is consistent with the above provisions, although the material and evidence available to me was sufficiently clear that I did not need to specifically invoke these beneficial provisions.

57.     The Commission did not dispute that Mr Landy satisfied the definition of veteran under s 5C of the Act, having rendered eligible war service which is defined in s 7 to include operational service.  There is no question that Mr Landy’s service on HMAS Quickmatch in South-east Asia was operational service.

58.     I find that Mr Landy’s evidence as to the original barotrauma incident, and the evidence as to its aftermath, have not been disproved beyond reasonable doubt.  Further, no other facts which are inconsistent with the hypothesis based on the acute barotrauma and its aftermath have been proved beyond reasonable doubt.

59.     For the above reasons, I am not satisfied beyond reasonable doubt there is no sufficient ground for determining that the conditions of otitc barotrauma, chronic perforation of the right ear drum, recurrent otitis media and recurrent otitis externa were war-caused.  I must accordingly determine, by virtue of s 120(1) of the Act, that Mr Landy’s conditions were war-caused.  It follows that his claim must succeed.

DECISION

60. I find that Mr Landy’s medical conditions, otitic barotrauma, chronic perforation of the right ear drum, recurrent otitis media and recurrent otitis externa satisfy the criteria set out in s 9 of the Act as being war‑caused and that these conditions are to be accepted in relation to s 14, s 20 and s 177 of the Act. Consistent with the submission of the Commission, this acceptance is to be effective from 20 July 2005.

61.     For the above reasons, I set aside the decision under review; and

(a)in substitution decide that the conditions of otitic barotrauma, chronic perforation of the right ear drum, recurrent otitis media and recurrent otitis externa are war‑caused with effect from 20 July 2005; and

(b)remit the matter to the Commission to assess the applicant’s rate of pension in accordance with these reasons for decision.

I certify that the sixty‑one [61] preceding paragraphs are a true copy of the reasons for the decision herein of:

Dr Kerry Breen, Member

(sgd)    Olympia Sarrinikolaou

Clerk

Dates of Hearing:  26 November 2007 and 14 January 2008
Date of Decision:  18 March 2008
Counsel for the Applicant:           Ms J. Bornstein
Solicitor for the Applicant:            Williams Winter Solicitors
Counsel for the Respondent:        Mr G. Purcell
Solicitor for the Respondent:        Department of Veterans’ Affairs