Poole and Repatriation Commission

[2006] AATA 323

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 323

ADMINISTRATIVE APPEALS TRIBUNAL      )

)              No. N2004/1223

VETERANS’ APPEALS DIVISION )

Re DAVID POOLE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr M E C Thorpe, Member

Date24 March 2006

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL      )          No.   N2004/1223

)              

VETERANS’ APPEALS  DIVISION		)
Re		DAVID POOLE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen
Dr M E C Thorpe, Member

Date24 March 2006

PlaceSydney

Decision FOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd)  M D Allen
  ..............................................

Presiding Member

CATCHWORDS

VETERANS' ENTITLEMENTS – Application to have diagnosed condition of lumbar spondylosis recognised as war caused – applicant was a rower while serving as a staff cadet – whether rowing qualifies as “carrying” or “lifting” within the meaning of the relevant Statement of Principle – decision under review affirmed.

Veterans’ Entitlements Act 1986 – ss120(4) and s120B

CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384
Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
Victims Fund Corporation v Brown (2003) 77 ALJR 1797

REASONS FOR DECISION

24 March 2004   Senior Member M D Allen  Dr M E C Thorpe, Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen;
  Dr M E C Thorpe

Signed:          (E.Pope)         
          ..................................................................................…………            Associate

Date of Hearing  24 March 2006  
Date of Decision  24 March 2006

Solicitor for Applicant  Mr B Winship, Winship Lawyers

Advocate for Respondent              Mr G Doube, Department of Veterans’ Affairs

DRAFT DECISION  
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2004/1223
By MR M.D. ALLEN, Senior Member
POOLE and REPATRIATION COMMISSION
SYDNEY, FRIDAY, 24 MARCH 2006

MR ALLEN:   In this matter the applicant has sought review of a decision by the respondent to reject his claim that his diagnosed condition of lumbar spondylosis was caused or contributed to by his Defence service.

The applicant served in the Australian Regular Army from 18 January 1971 to 27 February 1982 but of course Defence Services in the Veterans’ Entitlement Act 1986 was from 7 December 1972 to 27 February 1982.  The first period of his service was as a staff cadet at Royal Military College, Duntroon.  During his period at Duntroon, being some four and a half years, he was a rower.  The respondent, quite properly, has accepted that the applicant did row.  The rowing season was from October to April each year and the applicant rowed three times a week for three hours at a time.  The applicant, who is a civil engineer, has produced calculations and the respondent has accepted for the purposes of this preliminary argument, that the cumulative weight moved by the applicant during the course of his rowing activities amounted to at least 168,000 kilograms.

As the applicant had Defence Service, the standard of proof in this matter is that mandated by subsection (4) of section 120 of the Veterans’ Entitlement Act, namely that of "to the Tribunal's reasonable satisfaction".  Subsection (3) of section 120B Veterans’ Entitlement Act states:

“In applying subsection (4) of section 120 to determine a claim the Commission is to be reasonably satisfied that an injury suffered by a person, the disease contracted by a person or the death of a person as Defence caused only if:

(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b)there is in force:

(i)a statement of principles determined under subsection 196B(3) or (12);  or

(ii)a determination of the Commission under subsection 180A(3) that upholds the contention that the injury, disease or death of the person is on the balance of probabilities connected with that service.”

In this matter two statements of principle are relevant.  Namely, instrument number 47 of 2002 which was in force when the respondent made its decision in this matter and instrument number 38 of 2005 which is the current statement of principle.  The Tribunal must first consider instrument number 38 of 2005 and if the applicant cannot succeed pursuant to that statement of principle, consider whether the instrument in force at the time the respondent made its decision is more favourable to the applicant.  In this case that is instrument number 47 of 2002.

The applicant's case is quite clearly set out in his Statement of Facts and Contentions namely, that during the period whilst indulging in the sport of rowing qualified under the SOP for spondylosis under the factor reading:

“Manually lifting or carrying loads of at least thirty-five kilograms while bearing weight to a cumulative load of 168,000 kilograms within any ten year period before the clinical onset of lumbar spondylosis…”

His case is supported by Dr Kuah, sports physician of the Sydney Sports Medicine Centre.  In his report dated 3 May 2005 Dr Kuah states:

“Essentially, the issue is dependent on whether his activities in rowing in the early years at Duntroon qualifies under this definition.  Whilst it is clear that he is not weightbearing in terms of walking, running or jumping, the act of rowing certainly has a significant degree of weightbearing through the lower limbs as the athlete pulls through the water.  In addition, it is reasonable to argue that the pull through the water mimics the act of manual lifting.  There are certainly studies showing equivalent work done in rowing as compared to lifting a load with a similar strain on the back.”

Factor number 38 of 2005 states as a factor for the connection of lumbar spondylosis the circumstances of a person's particular service as factor 6(h):

“Carrying or lifting loads of at least thirty-five kilograms while bearing weight through the lumbar spine to a cumulative total of at least 168,000 kilograms within any ten year period before the clinical onset of lumbar spondylosis...”

Compare instrument number 47 of 2002 which reads as factor 5(i):

“Manually lifting or carrying loads of at least thirty-five kilograms while weight bearing to a cumulative total of 168,000 kilogram within a ten year period before the clinical onset of lumbar spondylosis.”

Instrument number 38 of 2005 defines lifting loads as "manually lifting an object".  It seems to us that factor 6(h) in instrument number 38 of 2005 is the same as factor 5(i) in instrument number 47 of 2002.  The only differences being semantic. 

The respondent's case is that the applicant's activities do not conform to the statement of principle in that carrying or lifting loads cannot be interpreted to read rowing.  At the outset it seems to us that words "carrying" or "lifting" are plain English words and are not being used in any technical sense in the SOP.  "Lifting" is defined in the Oxford Dictionary as:

“The action of the verb lift in various senses.”

And "lift" is defined as meaning:

“1.To raise into the air from the ground or to a higher position; to elevate, heave, hoist.”

A submeaning (d) is "to take up, pick up".  "Carry" bears the meanings:

“1.To transport, convey while bearing up; or

2.To bear from one place to another by bodily effort. To go bearing up or supporting.”

The applicant's solicitor has urged upon us a purposive interpretation of the relevant instruments.  This interpretation would give effect to Dr. Kuah's opinion that rowing is equivalent to manual lifting.  Certainly the modern approach to statutory interpretation is to adopt a purposive approach to the interpretation of statutes and statements of principle are of course, a form of statutory instrument.  The purposive approach was discussed by the High Court in CIC Insurance Ltd v Bankstown Football Club Ltd (1995) 187 CLR 384. See also McHugh J in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85.

To adopt a purposive interpretation however does not permit words to be read into a statute. When one looks at the context in which the words "carrying" or "lifting" occur, it is clear they are part of a statutory instrument which defines circumstances in which liability will be accepted by the Commonwealth for disease caused to current or former members of the Armed Forces as a result of incidents in that service.  The specifics are clearly set out and we cannot see any justification for reading the words "or the equivalent of carrying or lifting" into the factor. 

This case bears some superficial similarities to Victims Fund Corporation v Brown (2003) 77 ALJR 1797. Heydon J at page 1799 said:

“There is no convincing textual reason emerging from the rest of the Act for departing from the ordinary meaning.”

Applying that reasoning in this matter, we see no textual reason emerging from the SOP to add the words stated "equivalent to carrying or lifting" or indeed inserting the word "rowing".

At page 1804, Heydon J referred with approval to the judgment of Spigelman CJ in the Court of Appeal. As his Honour said:

“As Spigelman CJ said: ‘the issue before the court is the determination of the circumstances in which compensation is payable.’ The legislation has endeavoured to define the circumstances in precise language which does not permit universal recovery; and hence ‘the court is not required to give the most expansive possible interpretation of such circumstances.”

With respect we agree that similar principles apply here.

We are satisfied therefore, that the applicant on the present material before us cannot bring himself within the SOPs and unless there is any further matter before us, the decision under review should be affirmed.