Maddaford and Repatriation Commission
[2004] AATA 1247
•29 November 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1247
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/549
VETERANS' AFFAIRS DIVISION ) Re DOUGLAS DEAN MADDAFORD Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President D G Jarvis Date25 November 2004
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and in place of that decision determines that the applicant’s lumbar spondylosis is war-caused. D G Jarvis
(Signed)
Deputy President
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. S2003/549
VETERANS’ APPEALS DIVISION )Re: DOUGLAS DEAN MADDAFORD
Applicant
And: REPATRIATION COMMISSION
Respondent
DIRECTION [2004] AATA 1247
TribunalDeputy President Jarvis
Date29 November 2004
Date of Decision 25 November 2004
PlaceAdelaide
Pursuant to s 43AA(1) of the Administrative Appeals Tribunal Act 1975 the TRIBUNAL DIRECTS the Registrar to alter the text of the reasons for decision in this matter by deleting ’22 April 2004’ appearing in line 2 of paragraph 42 in the statement of reasons for decision and inserting ’22 April 1943’ in its place.
.......................................................
D G JARVIS
(Deputy President)
CATCHWORDS
VETERANS' ENTITLEMENTS - operational service - whether veteran suffers from lumbar spondylosis - consideration of Statement of Principles - fall from height onto a mine sweeping paravane - decision under review set aside.
Veterans’ Entitlements Act 1986, s 9, 13(1), 120(1), 120(3) and 120A
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Byrnes v Repatriation Commission (1993) 177 CLR 564
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
REASONS FOR DECISION
25 November 2004 Deputy President D G Jarvis 1. On 20 February 2003 the applicant, Douglas Dean Maddaford, lodged a claim for pension for incapacity in respect of cancer of the oesophagus and back problems. These conditions were diagnosed as malignant neoplasm of the oesophagus and lumbar spondylosis respectively. On 26 March 2003 a delegate of the Repatriation Commission rejected the claim for lumbar spondylitis, but granted the claim for malignant neoplasm of the oesophagus, and Mr Maddaford was granted a disability pension at the rate of 30 per cent of the general rate with effect from 20 November 2002. On 8 August 2003 Mr Maddaford lodged an application to the Veterans’ Review Board (“VRB”) for a review of the decision with respect to his rejected back condition. The VRB affirmed the decision under review on 15 September 2003. On 2 October 2003 Mr Maddaford applied to this Tribunal for review of the decision of the Commission, as affirmed by the VRB.
2. Mr Maddaford was represented by Mr P Broderick of Lempriere Abbott McLeod and the respondent was represented by its advocate, Mr A Crowe. The Tribunal heard evidence from Mr Maddaford and his wife, Mrs Brenda Maddaford. The documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 were admitted in evidence, and the parties tendered a number of other documents, to which I will refer as appropriate later in these reasons. I have carefully considered all of the evidence and documentary material before me.
Issue Before the Tribunal
3. The issue before the Tribunal is whether Mr Maddaford’s condition of lumbar spondylosis is war-caused pursuant to s 9 of the Veterans’ Entitlements Act 1986 (“VE Act”). The Commission accepts that Mr Maddaford is suffering from this condition, and so the question of diagnosis is not in issue.
4. It was common ground that if Mr Maddaford is successful in his claim, the date of effect would be 20 November 2002.
Background
5. Mr Maddaford was born on 9 March 1925. He was raised and educated in Adelaide and enrolled in university before joining the Royal Australian Navy at the age of 17. Mr Maddaford served with the Navy from 6 July 1942 until 27 June 1946. It is agreed that for the purposes of the VE Act, Mr Maddaford was engaged in operational service between 19 February 1942 and 12 November 1943. He was ostensibly a stores assistant throughout his period of service with the Navy.
6. Mr Maddaford met his wife, Brenda Maddaford, in 1945 while they were both in Darwin. They were married in Adelaide on 28 March 1946. After Mr Maddaford was discharged from the Navy, he was employed with the Adelaide Electric Supply Company, then the South Australian Police, and finally in various roles with the Commercial Bank of Australia. Mr Maddaford retired on 23 April 1983, by then in the position of bank manager.
Legislative Framework
7. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section, 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;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”
8. The expression “operational service” is defined in ss 6 to 6F of the VE Act. Pursuant to s 6A, a person renders operational service if he or she is a member of the Defence Force who renders “continuous full-time service for a period of at least 3 months in that part of the Northern Territory that is north of the parallel 14 degrees 30 minutes south latitude … between 19 February 1942 and 12 November 1943 (both dates inclusive)”.
9. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
10. As Mr Maddaford has performed operational service, as defined in s 6 of the VE Act, the determination of whether his condition of lumbar spondylosis is war-caused is to be made applying ss 120(1) and 120(3) of the VE 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.”
11. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (“RMA”) has made a 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), 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 section.”
12. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE 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 a statement of principles (“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 relevantly, 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.
Evidence before the Tribunal
Mr Douglas Maddaford
13. According to the evidence of Mr Maddaford, he was in good health and ably performing his duties as a stores assistant up until the date of 22 April 1943, when he asserts that his lumbar spine was injured in an accident while on duty.
14. Mr Maddaford’s written statement dated 29 September 2003 explains the incident in the following terms:
“In 1943 H.M.A.S. “Torrens” at Birkenhead in Sth Aust was a transit depot with a Stores Complex with composed three stores, viz. –
NAVAL STORES, handling paint, ropes, canvas, tools, shackles, cables, and minesweeping components necessary to service seagoing naval vessels.
VICTUALLING STORES, which handled all foods.
CLOTHING STORES which carried replacement clothing and materials.
At the time of my accident I was attached to the Naval Stores which was housed in a large brick building adjacent to the living quarters and Parade ground. It was fitted out with rows of racks for storage of various equipment.
On Thursday the 22nd of April 1943 a consignment of goods which had arrived on the previous day in crates was being unpacked and placed on the racks for storage. After “Stand Easy” which was about 10-30 a.m. I was instructed to climb up on to a rack alongside the wall on the western side which was 8 feet off the floor and stack goods already there to provide storage room for new stock. As I was doing the re-stacking I accidently [sic] slipped and fell backwards a distance of approx 8 feet. I fell on to a minesweeping paravane stored on the concrete floor and the small of my back landed on a metal fin of the paravane. I suffered excruciating pain to the small of my back and had to be assisted to my feet and after a time I was assisted to the Sick Bay, where the accident was reported. I was examined and given aspro or something similar to ease the pain and placed in bed. I remained in bed for the next two days unable to move without pain. I was then encouraged to get up and move around for short periods within the Sick Bay. Considerable discomfort and pain was experienced getting in and out of bed and mobility was very painful. By Monday afternoon on the 26th although still with a badly bruised back I was discharged from Sick Bay and placed on “Light Duties”.
I reported for duty at the Store on the 27th. It was quite busy at the time because there was a corvette on the SLIP undergoing a refit. The job was not sedentiary [sic] although it was regarded as clerical, and as my back was still causing me pain I avoided any lifting, shifting or twisting to avoid aggravation of the situation. My duties for the next fortnight consisted of receiving requisitions for stores and checking them for dispatch.” (exhibit A2, page 1)
15. Mr Maddaford provided a diagram of a mine sweeping paravane while deployed at sea, and a photograph of paravanes on board a vessel, both of which were obtained from the internet and admitted as exhibit A3.
16. Mr Maddaford explained that at HMAS Torrens there were two watches that alternated when they were on and off duty. Over the Easter weekend one watch was allowed leave for the full four days while the other watch remained on duty. It was agreed by the parties that 22 April 1943 was the Thursday before the Easter weekend. Mr Maddaford had an independent recollection of the proximity of Easter in relation to his accident, although he could not recall whether his watch was entitled to leave that Easter weekend. It was Mr Maddaford’s usual practice to return home to Colonel Light Gardens when on leave.
17. Mr Maddaford said that at the time of the incident two other men were present, but both have since died. The two men in question assisted Mr Maddaford to the sick bay. Upon arriving at the sick bay around 11:00am, the two witnesses told the sick bay attendant about the incident. There was no doctor present at that time.
18. Mr Maddaford recounted the after-effects of the incident to the VRB in the following terms:
“MR MADDAFORD[A]: I was admitted to sick bay and stayed in the sick bay, in beds.
Q: Right. Did you stay in bed for that period of time or did you sort of get up and about?
A: Up and about but resting mainly.
Q: Yes. Yes. What symptoms did you have in your lower back area? Do you recall?
A: Intermittent pain, from time to time, with movement.
Q: Were your movements restricted in those first few days?
A: A little. Yes.
Q: Are you able to – I know it was a long time ago but – are you able to give us any more information as to the extent of your restrictions of movements?
A: It’s a bit difficult. At the time ….. at the time.
Q: Yes. You weren’t on crutches? Crutches probably wouldn’t be appropriate for a back injury anyway.
A: No. No. No, I wasn’t on crutches. I just – I had difficulty initially, getting up from the bed and becoming – putting myself in motion.
Q: Yes. When you were discharged from the sick bay, what symptoms – again, I know it was a long time ago – but as best you can recall, do you remember what symptoms you still had when you were discharged from the sick bay?
A: If I started to handle anything heavy or a sharp twist of the body, it would upset it again.
Q: What about symptoms if you – like, did you have any restrictions in walking or bending or that type of thing when you left the sick bay? Did you still have ongoing pain and so forth, or not?
A: Slight. Slight.
Q: How long do you reckon that slight pain lasted for?
A: About a fortnight.
Q: Why do you think it was a fortnight and not a week or a day or two days at this distance – at 50 years?
A: That’s difficult to answer also. As you say, it’s a long while.
Q: Were you given light duties or did you return to normal duties?
A: I was given light duties.” (exhibit R3 pages 7-8).
And further on:
“Q: Yes. Now just one final question on this topic, because it is difficult to answer these questions, being so long ago, but a week after the incident, what do you think you were experiencing in your lower back? If you could just sort of try and give a – give us a bit of a picture. About a week later, what tenderness might you have had, or pain or restriction or had the symptoms largely resolved? What was the situation a week later?
A: Well it was still a bit tender and gradually at that age – 18 years of age – improving.
Q: Yes. What did your light duties entail for that period of time you were on light duties.
A: Internal office records and things like that.
Q: Right. Do you remember if you had any trouble getting in and out of a chair and that type of thing, when you were on those light duties?
A: No. Not specifically.
Q: You can’t remember or you didn’t have the pain?
A: I only had – the pain was gradually recurring but it was only slight, at the time.
Q: Yes. Actually, I’m sorry. I think I might have misled you. I asked you whether you might have had any difficulties, say, getting in and out of a chair – whether you can remember having any difficulties getting in and out of a chair and you said: “not specifically”. Do you mean, you don’t remember or do you think that you probably didn’t have difficulties getting in and out of a chair?
A: I probably didn’t have a lot of difficulty.” (exhibit R3 pages 9-10)
19. In his oral evidence to the Tribunal, Mr Maddaford explained that after he fell onto the paravane he felt searing pain in the small of his back and in his left side hip. For the first two days in sick bay he experienced difficulty with movement and on the third day he moved about a little at the behest of the sick bay attendant. At that point he could sit down but it was difficult to get up without pain. He returned to light duties on 27 April 2004 mainly involving standing and no bending or lifting. His movement was slow and cumbersome because of the pain. Light duties ceased after a fortnight at which point Mr Maddaford was engaged in preparing requisitions. This work involved a small amount of shifting and bending with a resultant “twinge” that he was able to overcome. Mr Maddaford was not, however, able to return to normal sleeping arrangement in hammocks for some time. He found he was unable to swing himself into the hammock so he slept on top of the lockers from which the hammocks were suspended. After about two to three weeks he managed to swing himself into a hammock but found it particularly painful to sleep on his side or to turn in the hammock.
20. Mr Maddaford provided the following further information in his written statement.
“On the 7th June 1943 I was posted from H.M.A.S. “Torrens” to H.M.A.S. “Melville” where I was attached to Naval Stores at Darwin which was involved in serving the needs of a number of corvettes and carried large stocks of supplies. Heavy physical and manual exertion resulted in severe pain in the lower back and restricted mobility during this period in Darwin. I returned to H.M.A.S. “Torrens” on the 8th February 1945. On the 1st of February, 1946 I was posted to H.M.A.S. “Townsville” a corvette with the rank of Leading Stores Assistant in charge of the ship’s victualling and I still found that I was unable to bend without pain and when I tried to lift any weight like cartons of supplies, the pain in my back was severe.
This pattern has continued over the ensuing years and I have found that I have had to obtain adjustment by a Chiropractor on many occasions to obtain relief, in particular when the sciatic of the left leg is affected.
The pain and discomfort in my back has remained with me since the accident in 1943 and has severely impacted on the quality of my life and that of my family. As the years have passed, particularly the last 2 years I have found my movements to be substantially more restricted with bending, kneeling, and walking causing aching and pain. I believe that had I not served in the Navy and had I not suffered the fall in 1943 that I would not have been subjected to this problem and would not be in my present condition. I feel I am also faced with the distinct possibility of further deterioration of the condition with my advancing years.”
21. After his discharge from the Navy, Mr Maddaford took up a position with the Adelaide Electricity Supply Co. He went on to join the South Australian Police and stayed in the employ of that organisation until 1951. He found that he experienced a sore back following walking on “the beat”. Mr Maddaford then joined the Commercial Bank of Australia and his career culminated in a promotion to Bank Manager at Yorketown.
22. Mr and Mrs Maddaford’s first house together was acquired in 1947 and it required extensive work in the garden. Mr Maddaford’s father assisted with various tasks including fencing, creation of a vegetable garden and landscaping. It was during these tasks, particularly during the breaking open of new ground, that Mr Maddaford experienced lower back pain, sciatica pain, backache and restricted mobility.
23. In the early 1950’s Mr Maddaford sought treatment from Dr Bowering. He attended Dr Bowering as required over a period of 12 months but found that the treatment was not very effective. Dr Bowering also referred Mr Maddaford to a physiotherapist. When Mr and Mrs Maddaford moved to Colonel Light Gardens, Mr Maddaford attended the surgery of Dr George Hodgson from 1952 until 1965. It was agreed by both parties that a search for such old medical records would be fruitless. Owing to his various work transfers, Mr Maddaford also saw doctors in Yorketown, Victor Harbor and Port Lincoln. In 1971 he started attending the Glenelg Medical Centre and since 1989 Mr Maddaford has been a patient of Dr Hill-Ling. In the early 1970’s Mr Maddaford attended Max Horton, a chiropractor, at the suggestion of his brother-in-law. Mr Maddaford continued to see Mr Horton until the late 1990’s when Tamara Swaffer took over the practice. Mr Maddaford still sees Ms Swaffer. Mr Maddaford said he endeavoured to obtain Mr Horton’s notes, but Ms Swaffer advised him that they had been destroyed.
24. In the course of the hearing in the Tribunal, Mr Maddaford was taken to the Navy medical records in exhibit A1. The relevant portion of those records are as follows (the inclusion of [?] indicates that the handwriting was not decipherable):
Date From To Drafting
CategoryM.O.’s
Initials6.7.42 Shore Torrens [?] 7.6.43 Torrens Melville A H.G.R. 8.2.45 Melville Torrens A B 30.7.45 Torrens Townsville A D 3.6.46 Melville Torrens A MOB 26.6.46 Torrens Darwin (exhibit A1, T4 page 17, emphasis added)
and:
Rating Ship, &c. Date of Admission Date of
DischargeNo. of
days sickDisease or Injury Disposal M.O’s Initials Supp Asst Torrens 26.1.43 29.1.43 3 Common Cold Duty H.G.R. “ Torrens 22.4.43 26.4.43 4 “ “ Duty H.G.R. Supply Assist Naval Hosp Darwin 18.6.43 21.6.43 3 Conjunctivitis (RT) Duty R. “ Naval Hosp Darwin 26.8.43 28.8.43 2 Furuncle Lt Auxilla Duty R. “ “ “ 27.8.44 29.8.44 2 Conjunctivitis R Duty [?] S/A S. Q. Penguin 5.11.45 9.11.45 4 Scabies Duty [?] (exhibit A1, T4 page 18, emphasis added)
25. Mr Maddaford said that he did not recall the common cold or the period in sick bay that was recorded in the first entry. The second entry on the record accords with Mr Maddaford’s recollection of the dates that he spent in sick bay, but it indicates by the ditto marks that the disease or injury in question was a common cold. Mr Maddaford said that he did not have a cold at the same time as his accident and that the ditto mark entry should in fact record “back injury”. Mr Maddaford also had an independent recollection of the third and sixth entries in the record, but not of the remaining entries.
26. Mr Maddaford was also referred to a document that (according to information provided by an historian, Commodore Brecht, whose report was admitted in evidence as exhibit R1) was created by the compilation of medical journal record extracts that related to Mr Maddaford (see paragraph 30 below). That document records the following:
No. of case in Journal Age Quality Ship Year 1943 No. Days Ship or Naval Hospital Sickness Civil Hospital Disposal Name of Hospital Disease or with remark necessary Date of Admission Date of Discharge 867 20 SA SS 26.1.43 29.1.43 3 Duty Common cold 917 18 SA SS 22.4.43 26.4.43 4 Duty Common cold (exhibit A1, T4, page 21)
It further appears from Commodore Brecht’s report that the records from which this document was compiled have since been destroyed. Mr Maddaford pointed out that this record was inaccurate in that it recorded Mr Maddaford’s age at 26 January 1943 as 20, whereas he was actually 17 years old at that time. A further compilation table records the following information.
Name of Disease No. of Case Patient’s Name, Age, Quality, Official No., Date of Admission and Discharge, Time when and where taken ill, the History, Symptoms, Treatment and progress of the Disease or Hurt, and how disposed of. (in Hospitals and sick quarters, the name of the ship from which patient was received is also to be given.) Common cold 86 Maddaford Douglas Dean Supp ASS7 PA2988 admitted sick quarter 26.1.43 discharged to duty 26.1.43 Common cold 917 Maddaford Douglas Dean Supp ASS7 PA2988 admitted sick quarters 22.4.43 discharged 26.4.43
(exhibit A1, T4, page 22)
27. In the course of cross-examination Mr Maddaford was taken to a medical imaging report dated 13 January 1995 and prepared by Dr W Tucker (see exhibit R2). Amongst other things, Dr Tucker reports that:
“… Cervical Spine: There is advanced cervical spondylosis. There is evidence of quite marked narrowing of the C4-5 and C5-6 discs.
…
… Lumbar spine: There is evidence of lumbar spondylosis. There is narrowing of some of the lumbar invertebral discs … There is no evidence of spondylothesis … .”
Mr Maddaford explained that while he had never had a trauma to the neck, or cervical spine, he did receive treatment occasionally involving manipulation of that area.
28. In answer to further questions in cross-examination, Mr Maddaford said that his statement to the VRB in which he said that he experienced “intermittent pain, from time to time, with movement” in answer to the question “What symptoms did you have in your lower back area?” was correct in relation to the two days after he was out of bed. As to his statement to the VRB that he “probably didn’t have a lot of difficulty” getting in and out of a chair, Mr Maddaford conceded that in his VRB hearing he appears to have understated the difficulties that he experienced in respect of pain and tenderness. In re-examination, Mr Maddaford explained that the difference in his answers came about because the questions that he was asked before me were more explicit than those he was asked at the hearing before the VRB.
Mrs Brenda Maddaford
29. Mrs Maddaford said she met Mr Maddaford in 1945 at which time he was based in Darwin. When he moved back to Adelaide they married. She confirmed that when they moved into their Colonel Light Gardens house in 1947 there was a great deal to be done. Mr Maddaford’s father assisted and it soon became apparent that Mr Maddaford was unable to do the heavy work due to his back. This led to a discussion involving Mr Maddaford’s parents in which it was realised by the family that Mr Maddaford’s back problem stemmed from the fall onto the paravane. Mrs Maddaford said that Mr Maddaford had only played tennis twice since their marriage because of his back pain on the day following such tennis activity. She said a similar level of pain followed on from manual labour.
WriteWay Report
30. Commodore A.H.R. Brecht prepared a report dated 12 March 2004 that was admitted in evidence as exhibit R1. In that report Commodore Brecht states that:
“AVAILABILITY OF MEDICAL RECORDS
2. The Naval Health Records section in the Department of Defence advises that there are no medical records relating to the veteran other than those previously provided to the Department of Veterans’ Affairs (DVA). Although medical officers kept journals during World War II these have since been destroyed. Before destruction, all relevant extracts were placed in the records of individual naval members thus the veteran’s medical history file held by Defence contains all available medical information … .” (exhibit R1, page 2)
The Commodore goes on to hypothesise that the initials at the end of both common cold entries could be those of a visiting general practitioner, or of one Paymaster Lieutenant Henry C Rostron (H.C.R.), who was serving at Torrens at the time.
Medical Evidence
31. Due to the effluxion of time, the parties were in agreement that it would be futile to pursue more medical evidence than that which was already in evidence. Amongst the medical evidence before me, there is a report of Dr Peter D. Byrne dated 7 July 2003. In that report the doctor records that upon falling onto the paravane:
“… he noticed immediate back pain and was assisted to the standing position and taken to the sick bay at HMAS Torrens.
He was assessed and placed in a bed for a period of three days. He was aged 18 at the time and the event occurred around Easter time 1943.
He was then mobilized and returned to duties after three days but specifically on light duties which do not require him to climb, lift or bend because of ongoing low back pain.
… He then was returned to full duties after a period of two and a half weeks. The low back pain had settled somewhat but there was still some degree of discomfort.
On specific questioning, Mr Maddaford stated that throughout the next three years of his naval career, he would continue to have recurrent low back pain often worse later in the day or after working for a prolonged period of time.
…
On specific questioning, Mr Maddaford stated that on discharge from the RAN in 1946, no discharge medical documentation was given to him and no medical assessments were made with written reports. He continued to complain of low back pain.
…
I would assess that his lumbar spondylosis, although he is aged 78, certainly does have significant origin in the trauma that he experienced in 1943 when he fell 3 metres onto a sharp metal object at HMAS Torrens at Birkenhead.
…
I would assess that on the basis of the recent C-T Scan of the lumbar spine that there is evidence that in fact he did injure a lumbar disc suggesting that the trauma was of some significance.” (exhibit A1, T9, pages 61-66)
Dr Byrne refers to the earliest x-ray that is still in existence, that x-ray is dated 13 January 1995 and in Dr Byrne’s assessment it demonstrates evidence of lumbar spondylosis. I also note that the parties were in agreement before me that since 1989 Mr Maddaford has attended the practice of Dr Hill-Ling for consultation concerning his lumbar region.
Parties’ Submissions
32. Mr Crowe submitted on behalf of the Commission that either Mr Maddaford did not experience the fall onto the paravane in the way that he described, or if he did fall, he did not suffer a trauma to the lumbar spine in accordance with the definition of that phrase in the relevant SoP. Mr Crowe relied upon the medical records recounted in paragraphs 24 and 26 above and asserted that the period in the sick bay between 22 and 26 April 1943 was for a common cold. He also argued that it would be a rare coincidence if all three records contained the same error in attributing the sick bay visit in April 1943 to a common cold. Mr Crowe also pointed to the transcript of the VRB hearing and submitted that Mr Maddaford’s evidence had been exaggerated before me in order to meet the SoP.
33. Mr Broderick, for the applicant, argued that the medical record of a “common cold” is incorrect and Mr Maddaford’s recollection of the fall is to be preferred over inaccurate records. He submitted that the ditto marks may have been entered by the person responsible for ensuring Mr Maddaford’s paperwork was complete upon discharge. He also asserted that the record at T4, pages 21 and 22 should not be relied upon because they were compilations as opposed to primary documents.
Consideration
34. The claimed conditions of lumbar spondylosis is the subject of a SOP. I will set out the provisions of the relevant SoP below. I note that where a SoP exists I must apply the test prescribed by s120A(3), and as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 in the following way:
“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.”
35. 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 ss 120(3) and 120(1) of the VE Act, and in accordance with the approach explained in cases such as Byrnes v Repatriation Commission (1993) 177 CLR 564.
36. I have considered all of the material before me and I am satisfied that the material points to an hypothesis connecting the condition of spondylosis with the circumstances of Mr Maddaford’s operational service. That hypothesis is that the condition of lumbar spondylosis from which Mr Maddaford is suffering was caused by the fall referred to in his witness statement, and this fall happened in the course of his operational service. A SoP has been determined by the RMA pursuant to s 196B(2) of the VE Act in respect of the condition in question, and that SoP is Instrument No. 46 of 2002 as amended by Instrument No. 77 of 2202 (the “Lumbar SoP”). These findings meet the first two steps in Deledio.
37. I now turn to the third step as enunciated in Deledio. This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the Lumbar SoP. 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.
38. Under clause 4 of the Lumbar SoP, at least one of the factors set out in clause 5 must be related to the relevant service by the applicant. Clause 5 provides relevantly as follows:
“Factors
5. The factors that must as minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis or death from lumbar spondylosis with the circumstances of a person’s relevant service are:
…
(h) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis
… .”
In clause 8, the words “trauma to the lumbar spine” are defined to mean:
“…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.”
39. The parties are in agreement, and correctly so, that only factor 5(h) is relevant to the present matter. Accordingly, I must assess whether there is material before me that points to Mr Maddaford having suffered a trauma to the lumbar spine in accordance with the above definition of that phrase, and whether any such trauma occurred before the clinical onset of lumbar spondylosis. The concluding part of the above definition which refers to medical intervention is not relevant, as there is no material before me which indicates that Mr Maddaford received any treatment of the kind referred to while he was in the sick bay.
40. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees (supra). The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:
“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.
41. There is material before me that points to the clinical onset of lumbar spondylosis by not later than 1995. That material is the 1995 x-ray which, in the opinion of Dr Byrne, shows the presence of lumbar spondylosis. This is clearly a finding made by the doctor following investigation.
42. There is also material before me which points to Mr Maddaford having experienced a discrete injury to the lumbar spine on 22 April 2004. That material is to be found in the evidence of Mr Maddaford. There is also corroborative evidence from Dr Byrne. This material indicates that immediately after his fall onto the paravane, Mr Maddaford experienced severe lumbar pain. The material also points to pain, tenderness and altered mobility within 24 hours of the incident. In noting this, I refer in particular to Mr Maddaford having been bedridden for two days. There is also material before me that points to the presence of pain, tenderness and altered mobility for a period in excess of the minimum seven days required under the SoP. Finally, I note that the Commission conceded, and correctly so in light of the material, that the first three steps in Deledio have been satisfied by the material before me.
43. I accordingly turn to the fourth stage of the process explained in Deledio. This involves making findings of fact from the material before me, bearing in mind the provisions of s 120(1) of the VE 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.
44. I note that Mr Maddaford has been consistent in his numerous recitations of the paravane accident. Some sixty years have passed since the incident occurred, and apart from some minor variations in the estimated distance that he fell, he has vividly and consistently recounted the event to Dr Byrne, the VRB and to me. Where the material appears to diverge is in the detail as to the level of pain, tenderness and any effect upon mobility or movement following the days and weeks after the incident. As mentioned in paragraph 28 above, the Commission relied upon the VRB transcript and pointed out apparent inconsistencies in it. However, having read the transcript, it appears to me that some of the VRB’s questions were imprecise in that they encompassed both pain and tenderness, as well as restrictions on movement. Questions as to the latter issue focussed on getting into and out of a chair, and did not clearly explore the issues of altered mobility or range of movement of the lumbar spine generally (they being the further aspects of the requirements of the definition of trauma to the lumbar spine). In any event, Mr Maddaford’s answers to the questions indicated that he was having slight ongoing pain until a fortnight after the incident, he was still a “bit tender” a week after the incident and gradually improving. He also said he “probably didn’t have a lot of difficulty” getting in and out of a chair when he was on light duties. The VRB did not elucidate the period for which Mr Maddaford was on light duties, but according to his witness statement, he was on light duties for a fortnight after his discharge from the sick bay. On analysis, I consider that Mr Maddaford’s evidence to the VRB is not necessarily inconsistent with the requirements of the definition in the Lumbar SoP, even though he painted a more serious picture of the effects of his accident in his evidence before me.
45. A more significant issue arises in relation to the medical records reproduced in paragraphs 24 and 26 above. Mr Maddaford is of the firm view that the medical records are incorrect and that the correct condition for which he was placed in sick bay for four days in April 1943 was because of his back injury. In considering this issue, I take into account s 119 of the VE Act, which provides relevantly as follows:
“Commission not bound by technicalities
(1) In considering, hearing or determining, and in making a decision in relation to:
(a) a claim or application;
…
the Commission
(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.”
46. I have also had the benefit of inspecting the original documents that are copied and included in exhibit A1 at T4 pages 17, 18, 21 and 22 (see paragraphs 24 and 26 above). I refer first to page 17 of exhibit A1. That document is the front cover of a four-page booklet that is titled “Medical History Sheet for Naval Ratings”. The second line records that on 7 June 1943 Mr Maddaford was transferred from Torrens to Melville. The pen that was used to write that information is a different colour to the one that was used to write the initials of the Medical Officer, one “HGR”, in the last column of that line. The pen that was used to initial the document at that time appears to be the same as the pen that was used to write the initials “HGR” at lines one and two, both recording common cold, on the document that is page 18 of exhibit A1. The initials that appear to have been entered with the same pen and in the same handwriting have been bolded in paragraph 24 where those documents are reproduced above. The two entries that record “common cold” appear to have been written with two different pens, and neither of these pens match the one that was used to enter the “HGR” initials. I have also noted that the record from page 17 of exhibit A1 is not complete in that the last line, entered at the point of Mr Maddaford’s demobilisation, has not been completed.
47. Having examined these pages in some detail, and bearing in mind the provisions of s 119(1)(h), I am of the view that the documentary evidence is deficient in several regards. The first is that the document at page 17 is not complete. Secondly, a specific description of the illness or injury in question would have made the document more intrinsically convincing as a record than the use of ditto marks. This is especially so when the ditto marks refer to an earlier illness of a common cold. It would seem inherently improbable that a young sailor would have required hospitalisation for periods of 3 and 4 days in the months of January and April respectively for a common cold. Thirdly, Mr Maddaford’s age is stated as 20 in January 1943, and 18 in April 1943. Fourthly, and bearing in mind that the sick bay did not have a doctor in attendance at the time of Mr Maddaford’s admission, it would appear that the medical officer who was responsible for noting Mr Maddaford’s drafting movements on 7 June 1943 added his initials to both entries on the document on page 18 of exhibit A1, but those entries had been completed in a different hand and with a different pen; this suggests that that medical officer did not make those entires. While this does involve some conjecture, it is certainly indicative of the short comings of these documents.
48. The Commission also contended that it would be an unlikely coincidence if the compilation of the medical records, reproduced in paragraph 26 above, contained the same error as to the relevant diagnosis. I have also had the benefit of inspecting the original of those documents. Firstly, I note that these are not primary documents, but rather they are compilations of medical notes pertaining to Mr Maddaford that have been taken from various medical journals before their destruction. Other records were made by compilation and they appear at T4, pages 23 to 30. Unlike the documents at pages 21 and 22, the majority of those other compilation documents have been created by cutting and pasting photocopies of the original journal entries onto the compilation document. Pages 21 and 22 have both been entered by pencil in the same neat handwriting, and page 21 is incorrect in its recording of Mr Maddaford’s age. It is not clear where the information contained in these compilation documents was obtained from, and the only additional information they contain is a case number. I also note that on page 21, the first common cold entry is recorded as case number 867 from the medical journal; however, on page 22 the same event is recorded as case 86 from the medical journal. These deficiencies may be no more than errors on the part of the individual who transcribed the information from the original medical journals, but they are indicative of further deficiencies in the Departmental medical records. It follows that I am not satisfied that the medical records are an accurate record of the reason for Mr Maddaford’s admission to the sick bay in April 1943.
49. I find that Mr Maddaford’s evidence as to the paravane accident in the course of his operational service, 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 paravane accident have been proved beyond reasonable doubt.
Conclusion
50. For the above reasons, I am not satisfied beyond reasonable doubt there is no sufficient ground for determining that the condition of lumbar spondylosis was war-caused. I must accordingly determine, by virtue of s 120(1) of the VE Act, that Mr Maddaford’s condition was war-caused.
Decision
51. The decision under review is set aside, and in place of that decision I determine that the applicant’s lumbar spondylosis is war-caused.
I certify that the 51 preceding paragraphs are a
true copy of the reasons for the decision herein
of Deputy President D G JarvisSigned: .....................................................................................
N Quirke AssociateDate/s of Hearing 15 June 2004
Date of Decision 25 November 2004
Counsel for the Applicant Mr P Broderick
Solicitor for the Applicant Lempriere Abbott McLeod
Advocate for the Respondent Mr A Crowe
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