Michael Roche and Repatriation Commission - [2012] AATA 542

[2012] AATA 542

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2011/3833

Re

Michael Roche

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member J F Toohey and Dr I Alexander

Date 20 August 2012

Place Sydney
The Tribunal affirms the decision under review.
..............[sgd]..........................................................
Senior Member J F Toohey and Dr I Alexander
CATCHWORDS
VETERANS ENTITLEMENTS – cervical spondylosis – veteran claimed injury to cervical spine while on operational service – whether hypothesis that veteran’s condition was related to his service reasonable – Tribunal satisfied beyond reasonable doubt that cervical spondylosis not war-caused – decision under review affirmed
LEGISLATION
Veterans Entitlements Act 1968 ss 120, 120A and 196B(14)
CASES
Bull v Repatriation Commission [2001] FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 16 FCR 517
Hardman v Repatriation Commission [2005] FCAFC 83
Repatriation Commission v Deledio (1998) 83 FCR 82
SECONDARY MATERIALS
Repatriation Medical Authority, Statement of Principle concerning Cervical Spondylosis, No 33 of 2005 (as amended by No 76 of 2008), factor 6(g)
REASONS FOR DECISION
Senior Member J F Toohey and Dr I Alexander
20 August 2012
BACKGROUND

Mr Michael Roche served in the Royal Australia Navy between July 1964 and April 1976, including three periods of operational service in Vietnam of several months each in 1965, 1969 and 1970. He is now aged 64.
Medical evidence shows that Mr Roche has cervical spondylosis. He contends that trauma to his neck suffered when a hatch door fell on his head during one of his periods of service in Vietnam led to his cervical spondylosis. He contends his condition is war-caused within the meaning of the Veterans Entitlements Act 1968 (the Act).
The respondent does not dispute, and we are satisfied, on the medical evidence, that Mr Roche suffers from cervical spondylosis. The respondent contends, however, that it is not related to his service.
THE LAW
As Mr Roche’s claim arises out of his operational service, the standard of reasonable hypothesis applies. That means we must determine that his cervical spondylosis was war-caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. We shall be so satisfied if the material before us does not raise a reasonable hypothesis connecting his condition with his service: ss 120(1) and 120(3) of the Act.
In all other matters, including the kind of disease or injury suffered by a veteran and the date of clinical onset of a condition, the standard of proof is to the reasonable satisfaction of the Tribunal: s 120(4).
Whether a reasonable hypothesis is reasonable is assessed by reference to Statements of Principles (SOPs) issued by the Repatriation Medical Authority from time to time: s 120A.
STATEMENT OF PRINCIPLES
The SOPs set out the factors, at least one of which must exist and must be related to the veteran’s service, before it can be said that a reasonable hypothesis has been raised connecting a condition or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Michael Roche and Repatriation Commission

Details

AGLC: Michael Roche and Repatriation Commission [2012] AATA 542
Case: [2012] AATA 542
Decision Date: 20 August 2012

CaseChat Overview and Summary

Michael Roche, a veteran, sought compensation for cervical spondylosis, which he claimed was related to an incident that occurred during his service on the HMAS Sydney in 1965. The dispute was brought before the Administrative Appeals Tribunal, which had to determine whether there was a reasonable hypothesis connecting Mr Roche's condition to his service. The Tribunal was required to examine whether the hypothesis that Mr Roche's cervical spondylosis was related to his service was reasonable. This required an assessment of the evidence presented regarding the incident on the HMAS Sydney, Mr Roche's subsequent claims, and the medical evidence provided. The key issue was whether the Tribunal could be satisfied beyond reasonable doubt that Mr Roche's condition was not caused by his service.

The Tribunal concluded that the hypothesis connecting Mr Roche's cervical spondylosis to his service was not reasonable. The Tribunal noted several inconsistencies in Mr Roche's accounts of the incident and its aftermath, including his inability to recall specific details of the incident or the timeline of his symptoms. These inconsistencies undermined the credibility of Mr Roche's claims. Furthermore, the Tribunal found that the medical evidence did not support a causal link between the alleged incident and the development of cervical spondylosis. The Tribunal was satisfied beyond reasonable doubt that Mr Roche's condition was not related to his service. Consequently, the Tribunal affirmed the decision of the Repatriation Commission to deny Mr Roche's claim for compensation.

The Tribunal's reasoning was based on a careful assessment of the evidence and the application of the criteria for establishing a causal link between a condition and service. The inconsistencies in Mr Roche's evidence and the lack of medical support for a causal link were critical in reaching the conclusion that the hypothesis connecting his condition to his service was not reasonable. The Tribunal's decision was grounded in the need for a high standard of proof, particularly in cases where the veteran's claims are based on events that occurred many years ago. The outcome of the case affirms the importance of credible and consistent evidence in establishing service-related conditions for the purposes of veterans' entitlements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

A factor causing, or contributing to, an injury or disease is related to service rendered by a person if it satisfies any of the criteria s 196B(14).IS THERE A REASONABLE HYPOTHESIS CONNECTING MR ROCHE’S CERVICAL SPONDYLOSIS WITH HIS OPERATIONAL SERVICE? Mr Roche gave evidence before the Tribunal that he was serving on board the HMAS Sydney in 1965 when he was struck on the head by a hatch door as he climbed a ladder out of a shaft. He estimates the hatch door would have weighed approximately 30 kilograms. Ordinarily, it would have been secured while open but, for some reason, it was not secured properly on this occasion and, as he attempted to pull himself up from the ladder and out of the shaft by means of a handle on the hatch door, its full weight fell on the top of his head. Mr Roche gave evidence that, immediately, he felt a “blinding flash” and pain at the back of his neck. He managed to get out of the shaft and sat down for about five minutes. As he was at the end of his shift, he handed in his routine paper work, after which he had a shower and went to bed. He says he felt pain in his neck over the next few days but he continued to perform his duties without restriction. He did not report the incident or his pain to anyone. He may have taken Disprin for the pain. Mr Roche made a number of concessions under cross-examination. He agreed that he has little memory of the incident and its aftermath. Given that it happened more than 50 years ago, that is not in itself surprising. However, he also conceded that he could not recall if the incident happened while he was operational service. He agreed that, in answer to a question on his original claim for pension in 2002 about when the injury occurred, he stated “Unknown – during service on HMAS Sydney” and later, in 2010 when making his recent claim, he stated it was “during operational service on HMAS Sydney”. He frankly conceded he said it occurred during operational service because his claim would not be accepted otherwise, and it had to “fit within the parameters”. There were a number of matters in Mr Roche’s written statements that he conceded, before the Tribunal, he could not recall with any certainty, or which he claimed to recall with more specificity than previously stated. For instance, whereas in earlier statements, and before the Veterans Review Board, he said the pain lasted “about seven days” and “more than a week”, he claimed before the Tribunal that it lasted ten to fourteen days. (The significance of the period is the requirement in the SOP that symptoms and signs last for at least seven days following their onset.) Whereas, in his written statement in January 2012, he could recall taking Disprin for his neck pain, he conceded before the Tribunal that he could not recall whether or not he took medication for the pain, only that he “would have”. Dr Anthony Smith, an orthopaedic surgeon who examined Mr Roche in February 2012 at the request of the respondent, gave evidence that it was possible for an injury of the kind described by Mr Roche to lead to a soft tissue injury or to a ruptured disc.

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/3833
Re	Michael Roche
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member J F Toohey and Dr I Alexander
Date	20 August 2012
Place	Sydney