Neville King and Repatriation Commission

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[2015] AATA 36

Division VETERANS' APPEALS DIVISION

File Number(s)

2014/0910

Re

Neville King

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal

John Handley, Senior Member
Date 27 January 2015
Place Melbourne

The Tribunal sets aside the decision under review and in substitution decides that:

1.       the applicant has suffered a symptomatic grade 1 anterolisthesis (spondylolisthesis) at L5/S1 due to bilateral L5 pars defects (the condition);

2.       the condition is war-caused; and

3.       the application is remitted to the respondent for assessment of pension.

.......[sgd].................................................................

John Handley, Senior Member

VETERANS’ AFFAIRS – Applicant a member of crew of HMAS Sydney in 1971 when aged 17 years – engaged in operational service – fell down a stairway– applicant had asymptomatic pre-existing pars defects at L5 – back and leg pain immediately and following the fall – significant quantities of prescribed analgesia consumed – spondylolisthesis at L5/S1 diagnosed – incident not reported or treated until consulting with his general practitioner in 2010 – whether fall did occur – whether clinical onset of the injury occurred at the time of the fall – decision set aside and substituted

Legislation

Statement of Principles concerning Spondylolisthesis and Spondylolysis No. 5 of 2006

Cases

Repatriation Commission v Deledio (1998) 88 FCR 82

Kaluza v Repatriation Commission (2011) 280 ALR 621

REASONS FOR DECISION

John Handley, Senior Member

27 January 2015

  1. Mr King, the applicant, applied to review two decisions made by the Veterans’ Review Board (the VRB)  on 3 February 2014, which affirmed decisions previously made by the Repatriation Commission, the respondent, each being a refusal of applications:

    (a)for acceptance of spondylolisthesis at L5/S1 (spondylolisthesis) as war-caused (2014/0910); and

    (b)an increase in disability pension beyond 100 per cent of the general rate which is being paid by reason of a number of accepted disabilities (2014/0911).

  2. The hearing proceeded only to review the decision refusing acceptance of the spondylolisthesis. Counsel for the applicant conceded that unless the spondylolisthesis was accepted as war-caused, the claim for special rate pension, being the ultimate objective, could not succeed. I am satisfied the concession is properly made.

  3. The applicant is 60 years of age and served with the Royal Australian Navy (the Navy) between 28 April 1971 and 25 February 1972. He was engaged in operational service, during two trips to Vietnam, onboard HMAS Sydney (Sydney) between 26 October 1971 to 18 November 1971 and 24 November 1971 to 17 December 1971.

    The Hypotheses

  4. The applicant advanced two hypotheses of connection between service and injury being:

    (a)pre-existing bilateral L5 pars defects (destructive bone lesion) à a heavy fall on board Sydney during service à the pars defects became symptomatic or were aggravated à clinical onset of spondylolisthesis; or

    (b)a heavy fall during service à caused a fracture or dislocation of the L5 vertebra à clinical onset of spondylolisthesis.

    The Injury

  5. The applicant was diagnosed with spondylolisthesis by Mr Bruce Love and Mr John Cunningham, orthopaedic surgeons who examined the applicant on a medico-legal basis.

  6. The applicant had decompression surgery to L4/L5 and L5/S1…

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Details
Case
[2015] AATA 36
Decision Date

CaseChat Overview and Summary

The case of Neville King versus the Repatriation Commission involves a claim for war-related injury compensation. The applicant, Mr King, alleges that he suffered a back injury from a fall during his service on the HMAS Sydney in November 1971. The Repatriation Commission disputed the claim, arguing that Mr King did not suffer a vertebral fracture or dislocation as a result of the fall. The dispute was brought before the Federal Circuit Court of Australia, which was required to determine whether Mr King's back injury was caused by the fall and if it was war-related.

The court had to decide whether Mr King had indeed suffered a fall as he claimed, and if so, whether the fall caused the back injury in question. The applicant presented evidence that he slipped and fell on a stairway while descending outside the ship, attributing his back pain to this incident. The Commission, however, contested the occurrence and the nature of the fall, as well as the connection between the fall and the back injury. The court also needed to assess the credibility of the applicant's evidence, particularly in light of the time elapsed since the incident.

The court found that despite the variations in Mr King's account of the fall, it was reasonable to accept that he did fall down the stairway in November 1971. The court held that variations in memory over such a long period were understandable and should not be used to discredit his account. However, the court was not satisfied that Mr King had suffered a vertebral fracture or dislocation. The court preferred the evidence of the orthopaedic surgeon, Mr Cunningham, over that of Mr Johnson, who had performed the surgery. Consequently, the court concluded that Mr King's claim for war-related injury compensation was not substantiated.

The Federal Circuit Court of Australia ruled in favour of the Repatriation Commission. The court dismissed Mr King's claim for compensation on the grounds that it was not established that he suffered a vertebral fracture or dislocation due to the fall. The court's decision was based on the preponderance of evidence regarding the nature of the injury and the lack of a definitive connection between the fall and the back injury.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant had decompression surgery to L4/L5 and L5/S1 and fusion at L5/S1 performed by Mr Michael Johnson on 24 January 2013. The Applicant’s EvidenceThe fall In his oral evidence and written evidence, being an affidavit dated 21 April 2010 (T5, page 59) and a statement dated 13 February 2014 (Exhibit A1), the applicant stated that he slipped and fell on a steel stairway while descending, outside the ship, located near the weather deck in the early hours during his first trip to Vietnam. There were some minor variations in the description of that event. Mr Love recorded that the applicant slipped on the top step and somersaulted down the stairway (Exhibit A2). Mr Kelman, an orthopaedic surgeon who examined the applicant at the request of the respondent recorded that the applicant slipped and fell whilst he was walking down the stairway (T27, page 228). I think little turns on the differences in the description recorded by the doctors when compared to the description provided by the applicant of the mechanism of falling, because it was apparent from the respondent’s Statement of Facts and Contentions and obvious from cross-examination of the applicant during the hearing that the respondent disputed that the fall actually occurred. In his evidence, the applicant said that he tumbled forwards from the first or second step on the stairway, which was angled. The applicant also described the stairway in his evidence and in other documents as a companion way. A hand rail was located on the left side of the stairway and a wall was located to its right side. He said he had been facing forward and immediately after he commenced falling, he fell against the wall on his right side. He was thrown to the left and his mid-lower back struck the handrail which he also attempted to grab to break his fall, but unsuccessfully. He eventually landed at the bottom of the stairwell, on the deck and onto his chest and left shoulder and left hip. He estimated the length of the stairway to be about two metres. The fall was not reported In his statement of 13 February 2014, the applicant recorded that he did not report the fall or back pain subsequently suffered, in the belief that the symptoms may be temporary. In evidence, the applicant said that he suffered sunburn, with blisters on his legs, on the day before the fall. He said he sought treatment on board Sydney and was attended by a medical orderly. He said he was told that if he was treated for the sunburn it would be regarded as a self-inflicted injury and it was likely he would be disciplined, which would involve a loss of salary and withdrawal of leave. With that in mind, he said that if he reported the back pain following the fall, which he associated with difficulty in movement because of the sunburn (which he also recorded in his affidavit of 21 April 2010), it was likely that he would be disciplined as a result of the back pain because it would be associated with the sunburn. (The applicant gave similar evidence to the VRB (Exhibit R3, pages 30 and 31)). The applicant acknowledged that he was 17 years of age on the occasion of the fall, he was immature and he had not made a sensible decision.Symptoms

Decision

Reasons for decision

I am not satisfied on the balance of probabilities, that the applicant has suffered a vertebral fracture or dislocation. I am satisfied that the evidence of Mr Cunningham, on this issue, is to be preferred to the evidence of Mr Johnson as recorded in his report of 1 March 2013.Conclusion and Reasons for Decision The applicant advanced two hypotheses (see paragraph 4). The findings made above under Diagnosis, namely, the applicant did not suffer a vertebral fracture or dislocation precludes consideration of the second hypothesis. Put another way, he would only satisfy factors 6(a) and 6(b) of the relevant SoP, being the basis of the applicant’s second hypothesis, if he suffered a high impact trauma which resulted in a fracture or dislocation. There is a Statement of Principles in force during the assessment period being Instrument No.5 of 2006. Relevant factors have been reproduced earlier. The remaining hypothesis raised is reasonable because it fits within and is consistent with the template of the relevant SoP, more particularly, factor 6(f). Having reached the fourth stage of the Deledio analysis (Repatriation Commission v Deledio (1998) 88 FCR 82 at 97) a decision must now be made whether I am satisfied beyond reasonable doubt that the applicant has not suffered incapacity by war-caused injury. If not so satisfied, the applicant’s claim must succeed. Only at this stage are findings of fact permissible. The issue dominating this review was whether the applicant did, as a fact, suffer the fall as he alleged in November 1971 whilst a member of the crew of Sydney. The applicant said he suffered sunburn during the day immediately preceding the fall. He said he was told by a medical orderly that if there was a documented record of treatment for sunburn, he would be disciplined. He decided not to report it. He said the fall was precipitated by difficulty walking, as a consequence of the sunburn, which caused the trip or stumble at the top of the stairway and subsequently falling. He believed that if he had reported back pain as a consequence of the fall he would have been obliged to disclose the difficulty walking as a consequence of the sunburn. He therefore decided not to report the fall and consequent back pain. He also believed that the symptoms of back pain would be temporary. The applicant said that he had previously suffered from migraine and had a supply of Bex tablets, together with the prescribed medication Digesic and Mersyndol, which he consumed for pain relief. He consumed that medication after the fall also for relief of back pain. Having read the extensive documentation lodged in this review, observing the applicant in evidence, hearing the submissions of Counsel and reviewing the totality of the evidence, I am satisfied on the balance of probabilities that the applicant did fall down a stairway in November 1971. I acknowledge that there were different explanations given by the applicant and recorded by number of doctors in their histories of the nature and dynamics of the fall, that is, whether he slipped, tripped or stumbled and whether he fell forward or somersaulted. In my view it would be wrong and unfair to criticise the applicant for the variation in his descriptions of an event which occurred 43 years earlier. To do otherwise would not allow for the imperfections of memory.

Ratio Decidendi

Legal Principle Established

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