Re Denhollander and Department of Defence

[2002] AATA 866

ADMINISTRATIVE APPEALS TRIBUNAL

CATCHWORDS – FREEDOM OF INFORMATION - application to amend personal records – whether first document a document or record of opinion – whether opinion based on a mistake of fact – whether author of opinion biased, unqualified or acted improperly in conducting factual inquiries towards formulating opinion – decision affirmed – whether a second document incomplete, incorrect, out of date or misleading – whether document not completed by applicant may be subsequently completed under Act – decision varied.

Freedom of Information Act 1982 ss. 48, 49, 50, 51B, 51C, 51E, 55 and 61
Re Close and Australian National University (1993) 31 ALD 597
Barrow v Isaacs & Son [1891] 1QB 420
Re Jacobs and Department of Defence (1988) 15 ALD 645

DECISION AND REASONS FOR DECISION [2002] AATA 866

ADMINISTRATIVE APPEALS TRIBUNAL     )          
  )          S2000/434
GENERAL ADMINISTRATIVE DIVISION     )          

ReARTHUR DENHOLLANDER

Applicant

AndDEPARTMENT OF DEFENCE

Respondent

DECISION

Tribunal:                  Miss S A Forgie (Deputy President)
Date:  30 September, 2002
Place:  Adelaide

Decision:The Tribunal:

1.varies the decision of the respondent dated 31 August, 2000 affirming a decision dated 16 August, 2000 by:

(1)setting aside that part of the decision affirming the decision dated 16 August, 2000 in so far as it relates to questions 9, 10 and 11 of the form AM 146z; and

(2)substituting a decision that the part of the decision dated 16 August, 2001 relating to form AM 146z be substituted with a decision that:

(a)a line be placed through the word "NO" on each of the three occasions on which it appears; and

(b)inserting a statement on form AM 146z that this has been done in accordance with this decision; and

2.otherwise affirm the decision. 

S A FORGIE
  Deputy President

REASONS FOR DECISION

On 8 November, 2000, the applicant, Mr Arthur Denhollander, applied for review of a decision of the respondent, the Department of Defence ("Department") dated 31 August, 2000.  That decision affirmed an earlier decision dated 16 August, 2000 refusing to amend a form known as AF Med 1 – Medical Examination Record and dated 20 April, 1971 ("AF Med 1 form") and form AM 146z ("AM form") as requested by Mr Denhollander.

1. At the hearing, Mr Denhollander was first represented by Mr Cole of counsel and, at a subsequent directions hearing, by himself. Mr Elliott represented the Department. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with a bundle of medical reports, a bundle of documents relating to Mr Denhollander's entitlements under the Defence Force Retirement Death Benefits Act 1948, a report of Associate Professor Bruce McPhee, witness statements by Dr Caroline Luke and Commander Alison McLaren and a bundle of medical reports.  Mr Denhollander gave oral evidence in support of his case as did Mr George Potter, Orthopaedic Surgeon.  Dr Caroline Luke and Commander Alison McLaren gave evidence in support of the Department's case.

THE ISSUE

1. There were two issues in this case. The first was whether the AF Med 1 was an opinion within the meaning of s. 55(6)(c) of the Freedom of Information Act 1982 ("FOI Act") and, if so, whether it was an opinion based on a mistake of fact or if the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual enquiries reaching to the formation of his opinion. The second was whether the AM form was incorrect, incomplete, out of date or misleading and, in so far as it was incomplete, whether it could be completed using the procedures under the FOI Act.

THE REQUEST TO AMEND DOCUMENTS

1. In a letter dated 26 June, 2000, Mr Denhollander wrote to the Department asking that, under the FOI Act:

   it correct questions 7, 36, 40, 41, 42, 57 and 60 in the AF Med 1 form "to reflect the correct medical status on the day of discharge" because "they are misleading and incorrect".  He contended that the full history of his spinal operation and sequelae had been omitted and that the notation of "normal" under the heading of "anus, lower extremities, spine and nervous system" was incorrect; and

   it amend questions 9, 10 and 11 in the AM form to reflect the correct history.  He contended that he had not completed the answers to those questions and that they had been completed by a representative of the Naval Health Service. (T documents, pages 15-16) 

2. Mr Denhollander gave further details of the amendments he sought.  In relation to the AF Med 1 form he requested that the following comments be added in the following numbered boxes:

"14        Hearing – blank.  The administration of Streptomicin has been said to have an effect on Mr DenHollander's hearing, and Defence Health minute dated 20-9-2000 admits Streptomicin can cause hearing tone loss and tinnitus from which he suffers.

15Chest Xray – blank.  Apparently no Xray results were available at time of examination.  It is apparent that X-rays had been taken however the results are not recorded hence the record is incomplete.

36Anus – normal.  Mr DenHollander contends he had diminished sensation between the buttocks, anal reflex and peri-anal numbness secondary to Cauda equina syndrome, and suffered those symptoms at the time of discharge.  This is noted in page 3 of a contemporary medical summary.

40Lower extremities – normal.  Mr DenHollander has been diagnosed as (Mr G. Potter, orthopaedic surgeon 15th May 1996) suffering from a permanent impairment with an incomplete paraplegia, persistent Dysaesthesia in both legs (and this was accepted and conceded by Defence granting the Permanent impairment lump sum.)  This appears also to have been noted in the above medical summary.

41Feet – normal.  Mr DenHollander reports that he suffers from sensory impairment on the medial aspect of the left foot, and reduced ankle reflex on that side which is noted in Naval medical records prior to discharge.

42Spine – normal.  Mr DenHollander reports that he had a bilateral laminectomy L3-S1, bone excision of part of left pedicle and facet joint, with only a rim of bone remaining and also involving spinal cord.  That operation was performed while in the Navy and the surgeons record confirms.  Mr Potter opines that Mr DenHollander had a significant lower spinal impairment at time of discharge.

43Posture – normal.  It is noted that at discharge the Applicant complained of backaches and his posture was not normal at discharge.

44Gait – normal.  The applicant contends that with his back problems, lower limb disabilities his gait was not normal.

45Nervous system – normal.  Cauda equina syndrome, incomplete paraplegia, peri-anal numbness, diminished left ankle reflex, loss of sensory aspect of left foot and 15% loss off (sic) efficient use of both legs.  These complaints were with the exception of the last, experienced whilst in the Navy.  The last disability was experienced while in the Navy but was only assessed and confirmed after discharge from the navy but was determined with the consent of the Resondent (sic) as a permanent impairment to apply at date of discharge.

51-56It appears that these examinations were not carried out, and therefore the record is incomplete.

60Previous category and date relating to fitness category.

62Category of fitness – Category A.  Mr DenHollander in 1970 had specific problems serving at sea because of instability and some weakness in lower limbs, and in 1970 it is noted in Navy records that his left leg was giving way with increasing frequency.  Whilst noting that deterioration in Mr Denhollander's condition has been gradual and ongoing (ie subsequent to discharge as well), Mr Potter's assessment of 40% impairment of low back function and 20% loss of function in both lower legs as a result of the neurological problems, and he suggests that the deterioration since 1989 represents 8/27 of the total impairment, so suggesting that a major disability existed at that time (discharge)." (Statement of Applicant's Issues and Contentions)

1. Mr Denhollander also sought amendment of the AF Med 1 form by deleting the reference to Normal and noting as Abnormal the boxes numbered 36, 40, 41, 42 and 45.  He also asked that those that were left blank or that indicated that no examination had taken place should be amended to reflect Mr Denhollander's medical conditions and disabilities as they existed at the date of his discharge on 23 April, 1971.  Finally, he contended that, had he been subject to the appropriate discharge examination and assessment processes, he would have been categorised as medically unfit for Navy service i.e. "MUNS".

1. Mr Denhollander submitted that AF Med 1 form was incomplete as the examinations referred to in the boxes numbered 51-56 had not been carried out.  In relation to the box numbered 60, Mr Denhollander wrote "Previous category and date relating to fitness category."

1. In relation to box 62, Mr Denhollander wanted it to reflect the following:

"Category of fitness – Category A.  Mr DenHollander in 1970 had specific problems serving at sea because of instability and some weakness in lower limbs, and in 1970 it is noted in Navy records that his left leg was giving way with increasing frequency.  Whilst noting that deterioration in Mr Denhollander's condition has been gradual and ongoing (ie subsequent to discharge as well), Mr Potter's assessment of 40% impairment of low back function and 20% loss of function in both lower legs as a result of the neurological problems, and he suggests that the deterioration since 1989 represents 8/27 of the total impairment, so suggesting that a major disability existed at that time (discharge).
It has been conceded by Dr C Luke a Medical Officer with the Respondent in her report 7th August 1998 that "It is possible that Mr DenHollander may not have been made Category A(One) if a fuller examination had been done or more information was available at the time."
Mr Denhollander further contends that the above boxes ticked as Normal should be amended to Abnormal on the Form AF Med1 datesd (sic) 20/4/71 and that entrie (sic) on the form which are either blank or which indicate that no examination took place should be amended to reflect Mr denHollander's medical condition and disabilities as they were at his date of discharge on 23rd April 1971.
The Applicant further contends that had he been subjected to the appropriate discharge examination and assessment processes he would have been found at the time of discharge "MUNS" or medically unfit for Navy service." (Statement of Applicant's Issues and Contentions)

1. In respect of the AM form, Mr Denhollander said that he had left blank the boxes numbered 9, 10 and 11.  They had been filled in by someone else and is, Mr Denhollander said, "… both incomplete and incorrect in that it does not detail the disabilities suffered by Mr Denhollander at the time of discharge."

THE BACKGROUND

Mr Denhollander's service

1. I am satisfied that Mr Denhollander, who was born on 20 April, 1949, enlisted in the Royal Australian Navy ("RAN") on 9 March, 1968 for nine years.  He was trained as a naval chef after his initial training.  Early in 1969, he developed an abscess on his left buttock.  That discharged spontaneously but, in May, 1969, he found that he could not bend over one morning.  When he attempted to do so, the pain was excruciating.  He was admitted to HMAS Cerberus ("Cerberus") for investigations.  Mr Denhollander was found to have an epidural spinal abscess involving symptoms more to his left side than to his right.  In addition, he had some localised meningitis.  Subsequently, he underwent an emergency laminectomy with drainage of the extradural abscess between the spinal levels L3 and S1.  Mr Denhollander underwent a second operation on 14 May, 1969 when there was a secondary closure of the wound.

1. On 27 October, 1969, Mr Denhollander was posted to HMAS Stuart ("Stuart") and, in March or April, 1970, he began a period of absence without leave that lasted for almost 12 months.  On 16 March, 1971, Mr Denhollander gave himself up and he was incarcerated at HMAS Penguin.  On 26 March, 1971, he was posted to HMAS Encounter ("Encounter") and, on the same day, applied for a free discharge because of family difficulties.  He was assisted in his application by the RAN's social worker, his Member of Parliament and his wife's medical specialist.  His daughter died of SIDS on 14 April, 1971 and he was given a free discharge on 16 April, 1971.

AF Med 1 form

1. Based on the evidence of Commander Alison McLaren, a Medical Officer with the Royal Australian Navy, and chapters 2, 3 and 7 of the Australian Book of Reference 1991 – Naval Medical and Hospital Instructions (ABR 1991) ("ABR 1991"), I have made the findings set out in the following nine paragraphs.

1. ABR 1991 was promulgated in May, 1968.  Chapters 2 and 3 of ABR 1991 are concerned with medical documentation.  A system for maintaining each service member's medical history was established by ABR 1991.  That system was intended to improve the facilities for the protection and promotion of the health of the Navy and to provide more information about health conditions.  Its basis was that the medical history of each individual member of the Navy accompanied him or her throughout his or her service and was available to the Medical Officer responsible for his or her treatment or care.  A duplicate of that record was maintained at Navy Office for administrative purposes and for medical research.  Two types of forms accompanied the system: the AF Med series of forms and the AM forms.  Broadly speaking, the forms could be grouped into seven classes: Entry; Ship/Establishment; Hospital; Venereal Disease; Medical Board; Field; and Release/Discharge.

1. Four basic documents were prepared at the Recruiting Centre and forwarded to the establishment to which the member was posted.  The AF Med 1 form was one of those forms.  It was also used to record all other medical examinations during service and on discharge (Exhibit 6, paragraph 0331.2).  General Instructions relating to medical examinations during service were contained in Article 4487 of the Regulations and Instructions for the Royal Australian Navy, which was in force in 1968 ("ABR 5016") (Exhibit 6, Annexure B).

1. Section VI of Chapter 3 of the ABR 1991 specified the manner in which AF Med 1 was to be completed.  In relation to examinations other than examinations for entry, the Instructions specified:

"b.     Other examinations

(1)Boxes 1-8, 10-13, 15, 19, and 57 to be completed by the Medical Officer or his delegate.  Box 7 should be explicit – ie Annual, Diving Medical, etc.

(2)Boxes 9, 14, 16 to 18, 20 to 50 and 58 to 65 to be completed by the Medical Officer.  Boxes 6, 10, 13, 18, 29, 30, 31 to 50 may be omitted at the discretion of the Medical Officer.

(3)Boxes 51-56 are to be completed by the Medical Officer for aircrew candidates only.

…

d.The results of the examination are to be recorded in the first instance by placing a tick in the appropriate column 'Normal' or 'Abnormal'.  Abnormal findings are to be amplified in box 58.

e.Box 62 is always to contain a clear expression of opinion such as 'Fit all branches';  'Fit for discharge – Engagement expired'. " (Exhibit 6, Annexure A, paragraph 0331.5)

1. Medical Officers were required to specify the type of service in which members might be employed or to indicate the limitation of service resulting from their physical condition.  The categories were:

"Category         Type of Service or Limitation of Service

AFit for service anywhere

BFit for posting to a ship or establishment where a full-time or part-time Medical Officer is borne.  (Expected period to be stated)

BYFit for posting to a ship or establishment where a full-time Medical Officer is borne.  (Expected period to be stated)

CUnder medical treatment and unfit for duty anywhere.  (Expected period to be stated)

DUnfit for sea service temporarily but fit for duty on shore.  (Expected period to be stated)

EUnfit for sea service but fit for duty on shore

KTemporarily unfit for duty in a potentially malarious area

TUnder medical supervision, unfit for posting but fit for light duty.  (Expected period to be stated)

YTemporarily unfit for sea service and for service on shore north of Brisbane or Fremantle.  (Expected period to be stated)" (Exhibit 6, Annexure A, paragraph 0250)

Before a member was officially recorded as being in any category other than A or C, he or she must be surveyed on Form AF Med 23.  That survey would have been conducted by a Board of Medical Survey.  The category was to be implemented on receipt of the Naval Board decision on the survey.  Medical Boards conducting interim medical surveys were to recommend a definite period of time for personnel in those categories.

AM form

1. An AM 146z form was a Medical Statement of an officer or sailor on Discharge or Reversion to the Royal Navy (Exhibit 6, Annexure A, paragraph 0332).  The member is instructed to complete it three months before he or she is due for discharge (Exhibit 6, Annexure A, paragraph 0740).  Among the other steps to be taken at that time are:

"c.     A full medical examination including X-ray examination of the chest (70 mm or larger film) is to be made and recorded on Form AF Med 1 – 'Medical Examination Record'.

d.Any disability claimed or discovered is to be investigated and treated without delay.

e.If it appears that the member will not be fit on the due date for discharge, and if the member so requests application may be made for discharge to be deferred.  The signal is to contain the following information:

(1)authority for discharge and due date for discharge;

(2)nature of disability;

(3)date member first became aware of disability;

(4)date member first requested treatment of the disability;

(5)reasons for the time lag between dates given in (3) and (4);

(6)where it is proposed to carry out treatment;

(7)anticipated duration of treatment.

f.The onus is on the member to request service medical and dental treatment when a disability becomes apparent to him.  The only type of case which will receive favourable consideration for retention is that in which it has been clearly established that the circumstances which prevent the member from being fit for discharge on the due date are beyond his control.

g.Retention will not generally be approved for treatment of a disability which the member has known he had had for some time and has not requested treatment.  The information in e. should cover this point.

2.     Should retention in hospital be beyond 30 days the person is to be brought forward for Interim Medical Survey.  (ABR 5016, Article 4489)" (Exhibit 6, Annexure A, pages paragraph 07040)

Discharge is dealt with in ABR 5016 but it adds nothing of relevant to this case. 

AF Med 1 form completed in relation to Mr Denhollander

1. Those boxes numbered 14 (hearing) and 15 (Chest X-ray) on the AF Med 1 form completed on 20 April, 1971 by Dr Alderman in relation to Mr Denhollander did not contain any notation.  A separate note referring to question 15 stated "X Ray results will be forwarded".  Those numbered 36 (Anus), 40 (Lower extremities), 41 (Feet), 42 (Spine) and 45 (Nervous system) were ticked as being "Normal".  Those numbered 51 to 56 (Manifest hypermetropia, Maddex red., Accommodation, Convergents, Exercise tolerance test and Leg length) were crossed out on the form.  A separate note stated "Long abdominal scar DIF scar centre lower lumbar region.  No evidence of any disability on examination due to epidural abscess or subsequent laminectomy".  The box numbered 61 (Previous category and date) recorded "Category A" as did the box numbered 62 (Category A).

AM form completed by Mr Denhollander

1. It was common ground between the parties that the AM form was incorrectly dated 19 April, 1970 rather than 19 April, 1971.  Mr Denhollander did not complete boxes 9, 10 and 11 on the AM form, which is headed "Medical statement of an officer or rating on discharge or demobilisation or reversion to the Royal Navy".  The word "NO" appeared in each box and it was conceded by the Department that it had not been written on the form by Mr Denhollander.  The questions asked in each of the boxes and the information sought was:

"9.     Do you claim to be suffering from any disabilities which you consider to be due to or aggravated by service? 

If so, record your reasons.  …

10.Have you served outside Australia? 

If so, when, in what ships and/or localities.  …

11.Have you made any claim under the Repatriation or C.E.C. Acts and have you been granted any pension or compensation? 

If so, record details." (T documents, page 45)

1. Mr Denhollander was rated as being in category A by the Medical Officer at the medical examination preceding his discharge.  There was no survey by a Board of Medical Survey. 

1. Apart from relevant formal personal details Mr Denhollander had given the following answers to the following questions:

"7.       Do you suffer from any disabilities at present?

If so, record details.

Yes

Backaches.
Box 8 refers.

8.Have you suffered from any disabilities during service? 

If so, list them together with approximate dates of occurrence and where serving at the time. 
Yes.  About on the spine.
1st June 30th July H.M.A.S. Cerberus

9.Do you claim to be suffering from any disabilities which you consider to be due to or aggravated by service? 

If so, record your reasons. 
No

10.Have you served outside Australia? 

If so, when, in what ships and/or localities. 
No.

11.Have you made any claim under the Repatriation or C.E.C. Acts and have you been granted any pension or compensation? 

If so, record details. 
No.

12.Remarks. 

Owing to operation still have a times certain aches in the spinnel region especially if bending to much.  But seems to clear after good nights sleep." (T documents, page 45)

THE LEGISLATIVE FRAMEWORK

1. There is no issue taken between the parties, and I find, that the two documents of which Mr Denhollander has sought amendment both contain personal information about him and his access to them has been lawfully provided.  It follows that if the documents contain personal information about him:

"(a)   that is incomplete, incorrect, out of date or misleading; and

(b)that has been used, is being used or is available for use by the agency or Minister for an administrative purpose;

[Mr Denhollander] … may apply to the [Department] … for:

(c)an amendment; or

(d)an annotation;

of the record of that information kept by the [Department] …" (s. 48)

1. In applying for amendment of the two documents, Mr Denhollander has complied with the requirements of s. 49 of the FOI Act. Subject to s. 51C, the Department may amend the record or information if it is satisfied that:

   "(a)   the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister, as the case may be; and

   (b)the information is incomplete, incorrect, out of date or misleading; and

   (c)the information has been used, is being used or is available for use by the agency or Minister for an administrative purpose." (s. 50(1))

1. The manner in which the Department may make the amendment is set out in ss. 50(2) and (3):

"(2)  The [Department] … may make the amendment:

(a)by altering the document or official document concerned to make the information complete, correct, up to date or not misleading; or

(b)by adding to that document or official document a note:

(i)specifying the respects in which the agency or Minister is satisfied that the information is incomplete, incorrect, out of date or misleading; and

(ii)in a case where the agency or Minister is satisfied that the information is out of date-setting out such information as is required to bring the information up to date.

(3)  To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment."

1. If the Department decides not to amend a document, either wholly or partly in accordance with an application under s. 48, the Department must:

"(a)   take such steps as a reasonable in the circumstances to enable the applicant to provide a statement of the kind mentioned in paragraph 51A(c); and

(b)subject to subsection (2), annotate the document or official document concerned by adding to it the  statement so provided." (s. 51(1))

The Department is not required to annotate the document in the manner required by s. 51(1)(b) should the Department consider the person's statement to be irrelevant, defamatory or unnecessarily voluminous (s. 51(2)).

1. The statement referred to in s. 51(1)(a) is that mentioned in s. 51A(c) and must specify:

"(i)    the information that is claimed to be incomplete, incorrect, out of date or misleading; and

(ii)whether the information is claimed to be incomplete, incorrect, out of date or misleading; and

(iii)the applicant's reasons for so claiming; and

(iv)such other information as would make the information complete, correct, up to date or not misleading; …".

1. Section 51B sets out the manner in which annotations are made of records:

"(1)   Subject to section 51C, where the agency or Minister to whom such an application is made is satisfied that the record of personal information to which the request relates is contained in a document of the agency or an official document of the Minister (as the case may be), the agency or Minister must annotate the document or official document by adding to it the statement provided by the applicant under paragraph 51A(c).

(2)     Subsection (1 does not apply if the agency or Minister considers the statement to be irrelevant, defamatory or unnecessarily voluminous."

1. Regard must be had to s. 51E, which provides that "Nothing in this Part prevents an agency or Minister adding the agency's or Minister's comments to an annotation made to a record of information under section 51 or 51B."

1. Regard must be had to s. 55(6) which provides that, in reviewing a decision refusing to amend a record of personal information in accordance with a request under s. 48, the Tribunal:

"… must not … make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:
…

(c)the amendment relates to a record of an opinion to which neither of the following applies;

(i)the opinion was based on a mistake of fact;

(ii)the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion."

1. If an amendment is to be made then, s. 50(3) provides that:

"To the extent that it is practicable to do so, the agency or Minister must, when making an amendment under paragraph (2)(a), ensure that the record of information is amended in a way that does not obliterate the text of the record as it existed prior to the amendment."

1. The Department has the onus of establishing that its decision was justified or that a decision adverse to Mr Denhollander should be given (s. 61(1)).

THE EVIDENCE

Mr Denhollander

1. Following the operation, Mr Denhollander said, he undertook the duties he had previously undertaken at Cerberus.  He told the chief cook of his medical history and was told to help out where he could.  At the end of the day, he was exhausted and in pain.  His legs almost gave way and he could no longer run.  As there was no strength in his legs, it caused him pain to lift anything that was heavy.  They would give way if he were going up and down ladders on board ship and that was especially so if he were carrying anything.

1. Mr Denhollander said that his memory of how he felt on 11 July, 1969 does not accord with what is recorded in the clinical notes of the same day (Exhibit 2, page 17).  He was certainly back at work at that time but it depended upon how "work" was defined.  While he was opening cans and doing dishes, he was avoiding pain and had difficulty if he did anything other than light work.

1. In relation to the clinical notes on 22 August, 1969, Mr Denhollander said that he had made a marvellous recovery but he was still suffering pain in his legs and had difficulty in moving them for numerous tasks.

1. In 1970, Mr Denhollander was absent without leave for some six weeks.  He was posted to Stuart at the time and his application for discharge had been declined.  Mr Denhollander said that he had told the Captain that he had difficulties at home that needed sorting out but the Captain had threatened to keep him on board.  He was absent without leave for a longer period of about a year over the period 1970-1971.  During those periods, Mr Denhollander said that he was employed in various jobs but said that he left each of them because he could not manage.  He said that he did not tell any of his employers of his physical limitations at this time.  He could not recall whether he had consulted a medical practitioner in this period.

1. At Penguin, Mr Denhollander said, he asked for Panadol as he had a backache.  When he was transferred to Encounter on 26 March, 1971, his duties required him only to do a little sweeping.  He said at first that he was there only one or two days when his daughter died and he was immediately allowed compassionate leave.  He then agreed that his daughter died on 14 April, 1971. 

1. Mr Denhollander recalled completing the AM form when he saw the fleet medical officer.  At that time, he was on compassionate leave after the death of his daughter from SIDS.  He did not answer questions 9, 10 and 11 as he did not know the details to the questions.  In relation to questions 10 and 11, he had done a trip part way to New Zealand and was not sure if that was overseas.  He now believes the correct answer to be "no".  In relation to question 9, he was unaware, and was not made aware, of disabilities that he was suffering from.  A new diagnosis had been given to him.  He said that he requested his medical file but it was not available to him to record his answers in the box.  With hindsight, he now knows that he suffered anal reflex, diminished sensation between his buttocks, weakness of his left lower leg and the other symptoms noted in his medical records.  Mr Denhollander said that he was not given any instruction on the manner in which to complete the AM form.  It is difficult to describe disabilities if a person is not made aware of them.  He had numerous disabilities but not made aware of them.  When he was asked what his disabilities were, he did not understand that he was being asked what his problems were.  He was trying to establish what the medical terms were and asked for the medical file to answer it.  Later, he said that if a doctor is told that a person has suffered an abscess on the spine that would make the doctor think about what the person suffered from.

1. Mr Denhollander said that he had written that he had an abscess of the spine in answer to question 12 but he thought that there would be an investigation.  He agreed that he had stated that he had written that the back ache cleared after a good night's sleep but said that it was "there the next day". 

1. In relation to the AF Med 1 form Mr Den Hollander said that he could not recall any medical examination's having been carried out at the time.  Boxes were ticked without his being specifically asked a question.  He was asked about the abscess that he had recorded on the AM form.  As best he could, he explained what had happened.  Mr Denhollander said that he was not asked about his anus in question 36.  At the time, he had peri anal numbness, anal reflex.  While serving on the Stuart, he had excessive sweating.  If he lifted something heavy, he suffered a short burst of incontinence.  In April, 1971, he started to put toilet tissue between his cheeks to absorb moisture.

1. Mr Denhollander disagreed with Mr Elliott's suggestion that his memory of what had happened in the 1970s might be flawed in the way in which he had already acknowledged that his memory of the 1980s had been flawed.  He did so on the basis that his daughter had died.  The period was etched in his mind.  He had a grievance with the RAN for calling him in for a medical when he was on compassionate leave.  There was no need to call him in for it. 

1. Mr Denhollander said that he had not undertaken heavy work since he left the RAN.  He could not manage the first two or three jobs he undertook but then found employment with the E&WS.  He had very light work there and remained a long time.  Mr Denhollander agreed that he had gone to Dr Reid in 1987 or 1990 when he suffered pain in his left hip after helping with concrete.  It was heavy but he was able to do the work although he suffered consequences from it.  He did not recall doing concreting on a regular basis.  Mr Denhollander also agreed that he had attended a medical practitioner in August, 1998 after he injured his right hand while laying slate blocks.  It was not heavy physical work although it involved a certain amount of bending.  Only a small area of slate was involved.  In September, 1992, Mr Denhollander agreed, he had consulted a medical practitioner when he was sore.  It was noted that he had done so after using a jackhammer.  Mr Denhollander said that he might have been using the jackhammer.  When asked whether using a jackhammer is physically demanding, Mr Denhollander replied that it all depends on what is being done; it can be used by a person standing upright.  He did not agree that he had undertaken such activities on other occasions.  He had suffered the ramifications of doing so and so avoided those things as much as possible.  As he had to maintain an income, there were occasions when he could not avoid them.  Mr Denhollander agreed that he had attended a medical practitioner on very few occasions with regard to pain in his back.  He complained of pain in November, 1992 after he had got out of a Land Cruiser.  Mr Denhollander said that he had obtained a worker's compensation claim to get a few days off.  (Exhibit 7)

1. Mr Denhollander said that he had not had any need to go to doctors in the 1980s with back problems.  He was able to undertake heavy work from time to time but there were medical ramifications.  Although he was incapacitated, he struggled through.  Mr Denhollander said that he sought medical assistance regarding them but there were misdiagnoses.  That was because his Service Medical Records "were not up to speed" but they should have been forwarded to the medical practitioners.  He did not agree with the proposition that his not having complained to medical practitioners in the 1980s about his symptoms was consistent with his not having symptoms at the time of his discharge. 

Clinical notes from Mr Denhollander's service medical records

1. On 17 June, 1969, Lieutenant Cheffins, a surgeon with the RAN, examined Mr Denhollander and reported:

"Following Sick Leave well.
Reviewed by Mr. Hooper on 13/6/69 – "Feels very well, back not very uncomfortable. 
Wound well healed. 
It is difficult to be sure of any abnormality on examination at present.
For:     W.B.C.

E.S.R.

X-Ray after next visit.
Review in 4 weeks.
  (Sgd) R.Hooper."

Make arrangement for appointment at R.G.H. on 11/7/69 to see Mr Hooper." (Exhibit 2, page 9)

1. Mr Hooper examined Mr Denhollander on two occasions and reported:

"11/7/69       Is now back at work.  No pain in back.

No troubles with feet.
O/E.      Wound well healed.

No abnormal signs.
ESR still raised.

For X-Ray today and I would like to see him again in 6 weeks time." (Exhibit 2, page 17)

"22/8/69       Feels very well now.  Has had some eye infections lately but no boils.  No trouble with lower limbs.  No disturbance of micturition.  Back is comfortable. 

Examination:  The only abnormal sign elicited was a slight inequality of the ankle jerks.
No need for further review." (Exhibit 2, page 19)

1. On 19 February, 1970 and 3 March, 1970, Mr Denhollander reported that his left leg was giving way now and then but with increasing frequency (Exhibit 2, pages 20-21).  He was referred to a specialist.  The evidence contains a note of a medical examination that took place prior to the examination leading to the AF Med 1 form.  It was written by a Consultant Orthopaedic Specialist on 10 March, 1970 and reads:

"       Co. (L) lower limb 'gives way' going down ladders.  Has had some back ache after exersion (sic) since his operation 7/5/69.  Not worse over the over the last month.  He is a cook.  Plays no sport.
        O/E.  I can find no abnormality in the lower limbs except for a furuncle in the lower limbs except for a furuncle in (L) thigh (suggest this be drained (LA) and drained of the pus in it – which is probably sterile now)

The lumbar sacral are of good range and accompany by only slight pain at the of movement range.
         The 'giving way' of the left lower limb is not due to any abnormality in muscles or joints of the left lower limbs.  He can in fact stand on the left foot, kneebend and touch the right knee on the floor and come up. 

No inequality of the thighs or calves.
No significant inequality of the tendon reflexes.
Sensation normal.
All joints of both lower limbs normal.
Recommend review by-:

(1)Neurosurgeon.

(2)Dermotologist (re furuncles)" (T documents, pages 32-33)

1. Mr Peter Byrne, who is a General Surgeon, reviewed clinical notes in Mr Denhollander's file.  The X-ray reports in 1969 prior to Mr Denhollander's discharge were summarised:

"A1.  X-ray Lumbo-Sacral Spine and Pelvis 2 May 69 - normal.

A2.Lumbar Myelogram X-ray 7 May 69.

1)A large extra-dural collection completed surrounding the canal from L3 level downwards mainly on the left side.

A3.X-ray Lumbo-Sacral Spine 19 June 69.

1)Myelographic contrast medium and spinal canal.

2)Laminectomy has been performed at the L4 and L5 levels.

A4.X-ray Lumbo-Sacral Spine 11 July 69.

No significant new change is evident." (Exhibit 2, page 38)

Medical reports and reviews of Mr Denhollander's Service Medical Record

1. Mr George Potter is an Orthopaedic Surgeon and a Senior Consultant Orthopaedic Surgeon, to whom Mr Denhollander had been referred in 1996 by Dr Reid for an evaluation of low back pain and bilateral sciatica.  At that time, Mr Potter found that Mr Denhollander had clinical signs consistent with the diagnosis of an incompletely resolved cauda equina syndrome and current nerve root irritation.  Those signs included a reduced bilateral straight leg raising together with altered pin prick and light touch sensation in both legs and in the perianal region.  He had reasonable power and intact reflexes.  His range of spinal movements was quite markedly restricted.  A CT scan taken in 1996 and subsequent MRI scans showed changes of a post surgical nature following a wide decompression of Mr Denhollander's spinal canal.  Those changes included extensive and florid scar reaction to the complete resection of the left apophyseal joint at L5.  The wide decompression was probably used to drain the epidural abscess.

1. Mr Potter continued in his report dated 29 April, 1999:

"The extent of the bony resection used to clear the epidural abscess indicates that Mr Denhollander would have been left with a significant residual physical impairment at the time he was medically discharged from the army.  Whether he reported a subjective disability at the time would have depended on a wide range of factors but on an objective medical assessment this problem in the absence of significant nerve root signs would necessarily leave him with a residual impairment. 

I considered that Mr Denhollander had a major disability as a result of epidural scarring and nerve root tethering following an epidural abscess at the age of 19.
Since that time there has been a gradual and understandable deterioration in his condition and I would consider it likely that there has been a deterioration since 1988.  At present his long standing problems of epidural scarring and nerve root tethering have been compounded by the degenerative changes occurring in this region of his lumbar spine and with the additional scarring and facet joint enlargement he will have an increasing low back disability as a result of these processes and this is likely to compound the nerve root irritation as these changes will result in further narrowing of the canals through which his tethered nerve roots pass.
I consider that Mr Denhollander is now unemployable as a result of his condition.  There are understandable and identifiable pathophysiological changes in his lumbar spine which have compounded the disability he developed following the epidural fibrosis which arose following the causative problem of an epidural abscess.  The severity of his disability and the inevitability of degenerative changes compounding his problem is likely to have ultimately forced him to leave paid employment." (T documents, pages 26-27)

1. Later in his report, Mr Potter stated:

"4.     I was not involved in his care in April 1971.  He now has clear clinical and radiological changes consistent with the effects of the earlier diagnosis of a cauda equina syndrome arising from an epidural abscess.  Surgical clearance of an epidural abscess and the subsequent finding of extensive fibrosis clearly indicates this man would have had a residual medical condition at the time of his discharge which would have affected his physical function.

5.I consider there has been a gradual and ongoing deterioration in his condition since it first occurred in 1971.  With wear changes in the facet joints there has been further narrowing of the canals through which the tethered nerve roots pass and the development of increasing problems associated with the changes of spondylosis and further nerve root entrapment.  I consider some of the scar tissue would have been present from the time of his original surgery.  The deterioration occurring as a result of the subsequent changes identified would have been a progressive and ongoing process.

It is only over the last decade that he has developed problems with pain radiating through back legs.  This change is likely to be due to the development of lateral canal stenosis secondary to the changes identified.  The urological and bowel problems are likely to represent a further compression of the scarred and damaged cauda equina arising from additional narrowing with the spinal canal.

6.His outcome following surgery for a very serious condition in 1969 is considered to have been reasonable.  There is nothing to suggest that his disability is arising as the result of an unintended consequence of medical treatment and it is more reasonable to state that his surgical treatment is likely to have minimised the disability and the permanent paralysis this man may otherwise have suffered." (T documents, pages 28-29)

1. Professor Villis Marshall, the Director of Urology at the Flinders Medical Centre, wrote a report on 23 October, 1997.  He began his report with the following:

"… It seems that the problems that he is describing started when he was a young man in the Navy, when he developed an extradural abscess which required drainage from L3 down to the sacrum as indicated in his naval medical records.  Interestingly enough it appears he did make a relatively full recovery at that time, and apart from ongoing back problems, there was no documentation of either sensory impairment or bladder or bowel dysfunction.  It seems that it has really only been over the last decade or so that he has developed problems with what he describes as sciatica in both legs, and he tells me that he has discovered some problems passing his urine for about 2 years, and also has had problems with impotence both of these conditions are as I understand it, being investigated by Dr Moretti.  He also tells me that he gets pins and needles in his left leg, and towards the end of the day is unable to walk freely.  He also tells me that he has now developed some bowel problems he gets constipated, and at times, he has had some degree of faecal incontinence.  As far as his voiding is concerned, he says he passes his urine in dribs and drabs, and he apparently had an ultrasound performed by Dr Moretti, which in fact showed that his bladder did not empty completely." (T documents, page 37)

1. Professor Marshall considered that his findings were consistent with cauda equina damage and then turned to the discharge documentation:

"… The difficulty that I have when I reviewed his documents, was that unfortunately he did not indicate that he had any symptoms other than some back pain on discharge, and also equally unfortunately it does not seem that the discharge medical officer, really asked any specific questions, or indeed if he did, he did not document the observation.  I would have thought that in this particular case this would have been appropriate to document both positive and negative information, as well as one could have anticipated, that he may have had some permanent neurological deficit given the magnitude of the infection." (T documents, page 38)

1. In his capacity as a Senior Consultant General Surgeon, Colonel Peter Byrne wrote to Major Tattersall of the Defence Personnel Executive in the Directorate of Entitlements on 27 February, 1998.  He attached reports of Mr Potter dated 15 May, 1996 and 31 December, 1996 (Exhibit 2, pages 27-33) as well as the report of Professor Marshall (Exhibit 2, pages 43-44).  After referring to Mr Denhollander's spinal canal abscess and two major surgical operations, Mr Byrne wrote that Mr Denhollander was left with a weakness in his left leg and a loss of peri-anal sensation which has remained a chronic problem since that time.  Mr Denhollander's subsequent naval career was limited to shore postings.

1. With reference to the AF Med 1 form, Mr Byrne wrote:

"Evidently his discharge medical documentation from the RAN was inadequate to the extent that he was classified as being fully physically fit.  This was patently not so." (T documents, page 35)

1. Mr Byrne then referred to Mr Denhollander's significant limitations on his recreational activities since his discharge.  After detailing them, Mr Denhollander submitted that:

"… amendments need to be made with respect to his Final Medical Board and Discharge Medical Examination Summary to reflect the problems he had whilst serving in the RAN involving the spinal abscess with subsequent operations." (T documents, page 35)

1. Mr Kim Moretti, an Urologist, observed that he did not have Mr Denhollander's Service Medical Records and so based his opinion on the information given to him by Mr Denhollander.  He concluded that the epidural abscess which was contracted whilst in the Navy in 1969 was probably the principal cause of his condition.  As a result of that abscess, he suffered a partial cauda equina lesion (Exhibit 2, pages 45-47).  Mr Desmond Hoffmann, a surgeon, reached a similar conclusion (Exhibit 2, pages 51-52).

1. Commander Sparrow, a Medical Officer in the Defence Health Service, reviewed Mr Denhollander's Service Medical Record on 23 June, 1997 and, after noting the incorrect date on the AM form, reported:

"2.     There is a report from an orthopaedic surgeon dated March 1970, that indicates that Mr Denhollander had an extremely good recovery from his surgery in the May of the previous year.  The only problems recorded at the time were that his left leg gave way occasionally, and that he got frequent cramps in the legs, particularly the left.  There is no record of any significant pain.  As these are contemporaneous notes, it can only be assumed that pain was not of any great significance at that time.

3.In his Medical Statement on Discharge, he noted that he had "at times certain aches in the spinnel (sic) region especially if bending too much but seems to clear after good nights sleep".

4.That he has deteriorated over time is without doubt, and should he have continued to serve, he may well have become Medically Unfit for Naval Service.

5.My opinion is that at the time of discharge however, he was fit to continue serving in the Navy." (Exhibit 3, page 1)

1. Mr Denhollander's Service Medical Record was further reviewed by Dr Caroline Luke, who is the Senior Medical Officer of the Canberra Medical Unit at Duntroon.  She had done so in her previous position as a Medical Officer with the Defence Health Service Branch.  Having regard to a correction that Dr Luke made in her statement dated 24 October, 2001 in relation to paragraph 6 and making a necessary consequential amendment in paragraph 8, she wrote in her review dated 7 August, 1998:

"2.             In May 1969, whilst serving in the RAN as a cook, Mr. Denhollander suffered a severe infection on his right buttock, a common occurrence when working in a hot, cramped environment such as a ship's galley.  Unfortunately, this infection then spread to his spine causing an extradural abscess.  An emergency lumbar laminectomy was performed and the abscess was drained from the level of lumbar vertebra 3 down to the sacrum.  His medical records state that he did suffer from some minor neurological deficits post-operatively but that these were apparently gone after six months.

3.However, on reading all the available medical documentation, it appears far more likely that Mr. Denhollander continued to experience neurological impairment, albeit very minor, all along.  I believe that because the neurological sequelae were in the infancy stage of cauda equina syndrome, Mr. Denhollander was probably not aware of the serious nature of such impairment at the time.  In fact, he may have had no subjective symptoms at the time of his discharge, especially since he was so keen to leave the RAN for personal family reasons.

4.The circumstances of Mr. Denhollander's discharge appears to have caused a discrepancy in the dates for the medical obligations of the discharge process.  His medical discharge health statement was 19 April 1970 but the discharge medical examination was dated on 20 April 1971.  A possible explanation for this is that the latter was probably done the next day, not a year and one day later.  Since the enclosure numbers of the documents are consecutive this is a likely explanation.

5.In additional, because of his particular circumstances, Mr. Denhollander probably would have undergone his discharge medical without his medical file being available.  If so, the examining doctor would not have had access to Mr. Denhollander's full medical history.  This would account for the apparently hastily done medical examination.  The omission of the full history of his spinal operation and sequelae and notation of "normal" under the headings "anus, lower extremities, spine and nervous system" (when they each had a relevant history of their own), was not in keeping with standard RAN guidelines for medical board examinations.  It is possible that Mr. Denhollander may not have been made Medical Category A (One) if a fuller examination had been done or more information was available at the time.

6.Having said this, the clinical findings most likely present at the time would have been consistent with very minor cauda equina syndrome only.  This diagnosis would have made Mr. Denhollander probably no lower than Medical Category C (Three) and he would have remained so for about ten to fifteen years, had he stayed in the RAN.  This estimate is based on the fact that he has only suffered significant symptoms from his cauda equina syndrome in the last fifteen years at most.  There is no evidence to suggest that he was suffering from a debilitating medical condition back in 1970 or 1971.  Even the latest medical reports are unable to confidently state, and convince me, that Mr. Denhollander was as seriously affected then as much as he is now.

7.Based on all the available evidence and my careful consideration of this case, I believe that Mr. Denhollander would not have been deemed Medically Unfit for Navy Service (MUNS) at the time of his discharge.  Had he remained in the RAN for at least fifteen to twenty years longer then the full sequelae of his spinal operation may well have caused him to be medically discharged (even then, not necessarily MUNS).

8.               Whilst the condition from which he now suffers is a fairly common complication of spinal surgery, there are many levels of disability at any one time.  From an optimistic viewpoint, Mr. Denhollander has had at least fifteen years of living and working relatively normally with his condition since leaving the RAN.  That he now suffers multiple neurological problems is most regrettable and I am sympathetic to his request for review of his mode of discharge.  Unfortunately, I must agree with the previous conclusions about his case, that is, he would not have been regarded as MUNS in April 1971.  However, I do believe he could have been medically downgraded to …[Medical Category BY].  (Exhibit 3, pages 3-4)

1. Associate Professor Bruce McPhee, who is a spinal surgeon, also reviewed Mr Denhollander's Service Medical Record.  After setting out Mr Denhollander's previous medical history, Professor McPhee reported:

"a.     Based on the Discharge Medical Examination Record on 20 April 1971 there was no evidence of ongoing cauda equina syndrome.  Ongoing backache was noted.  The notes by the examining medical officer indicate he was aware of the past history of epidural abscess.  This officer indicates "no evidence of any disability on examination due to epidural abscess."  Although there was a complaint of low back pan, examination apparently indicated no impairment relating to the laminectomy.  On the balance of probability the backache he was then experiencing was consistent with the laminectomy.  A laminectomy does  result in some reduction is stability of the spine, which is usually not significant.  This is the cause of ongoing low back pain.  Detailed documentation relating to a medical review on 10 March 1970 also indicates no significant residual neurological or lumbar spine impairment.

b.It is probable that as at April 1971 would have suffered ongoing symptoms as a result of his abscess and subsequent laminectomy in May 1969.  This is indicated by low backache.  There is a high probability that irrespective of the indications, a laminectomy would eventually result in some low back pain.  Low back pain in itself is an inevitability for most patients during their lifetime.  There is no indication at the time of examination that this low back pain was causing any impairment.

c.The symptoms relating to his previous surgery include low backache, which was probably of a mechanical type, and cramps in the left leg.  Leg cramps are a common sequelae following decompression for nerve root involvement.

d.It is apparent from the examination that there was no evidence of any disability.  This would indicate that there was no objective evidence of restriction of function and hence no reason he would not be able to undertake routine employment.  From the documentation it would appear that no restrictions were evident at that time." (Exhibit 4)

Mr Potter

1. Mr Potter said that Mr Denhollander's laminectomy created instability in his spine and would lead to ongoing problems.  Any person would be left with a permanent physical impairment in the spine.  What happens to the person depends upon various factors.  A young man who enters a physical fitness programme can mask the symptoms.  He might have recovered and he might have had a problem. 

1. From an orthopaedic point of view, Mr Potter said that Mr Denhollander's spine is abnormal.  There has been both bone and tissue destruction.  Mr Potter agreed with Mr Elliott that the answer to a question whether a person is normal or abnormal could depend on whether the question were asked for a research project or in the context of ascertaining the person's ability to do a task.  He accepted that a person could have a problem but be classified as normal in the context of employment.  A backache does not necessarily mean that a person has an abnormal spine.  A doctor in the armed services would be assessing functional disability. 

1. Mr Potter said that he did not see Mr Denhollander until 1996 and it was impossible to know how he presented in 1971.  Therefore, he was reliant upon what he knows of the normal course of such conditions and upon what Mr Denhollander told him.  In terms of outcome, it is possible to have a near normal life.  The fact that a person is missing ankle jerks usually means that they will not return but are not an indicator of ongoing disabilities.  When asked whether it was possible that a medical examiner who was aware of the laminectomy could mark the AF Med 1 form as normal, Mr Potter said that, since 1969, there has been a growing awareness of the impact of a laminectomy.  Even those who performed the surgery in 1969 would not have been aware of the impact.  A person making an assessment in 1969 would do so with the knowledge at the time.  Mr Potter drew a distinction between an impairment and a disability.  An X-ray may show an impairment as it may show an anatomical change.  It would not be incorrect to mark Mr Denhollander's spine as normal in 1971.

Dr Anderson

1. Dr Paul Anderson was a Medical Officer in the RAN on a full-time basis from 1968 until 1974.  He held the rank of Surgeon Lieutenant Commander and was the Assistant Director, Naval Health Services in the Navy Office.  He wrote a report dated 13 November, 2001 to Mr Denhollander's then solicitor.  Dr Anderson said that there did not appear to be any Interim Medical Surveys in relation to Mr Denhollander.  Had he had a number of Interim Medical Surveys considering him unfit for normal duties, Dr Anderson would have expected him to have a Final Medical Survey.  As far as he could remember, naval disability was concerned with fitness for sea going duties and not with fitness over a gamut of civilian occupations. 

1. On 10 May, 1992, Mr Denhollander wrote to Dr Anderson with four questions.  Dr Anderson answered questions 1, 2 and 4 in the affirmative and question 3 in the negative:

"1     Having regard for the regulations, Method of Recording Diagnosis and the entry of I.C.D. code 342 = Hemiplegia and Hemiparesis on Mr A Denhollanders Naval Medical File, also taking into account his factual medical information and background as it was recorded after his operations and the lack of I.M.S. to state otherwise, would you consider Mr. A Ddenhollander to have been "Prima Facia" unfit for Sea duty, with a proscribed condition?

2Was the standard of Normal Health during the period in question considered to be that as stated on my AF Med I Entry Examination Form?

3Having regard for the regulations 4488 Examination and Treatment Before Discharge Page 1 sec. 5 Normal Health and the Medical History documented, also the degenerative nature of Mr. A Denhollander's condition, lack of I.M.S. to state otherwise.  Would you consider Mr. A. Denhollander to have been in Normal Health at discharge?

4Having regard for the information before you, would you consider that grounds existed on which Mr A Denhollander could have been retired on the grounds of invalidity or of physical incapacity to perform his duties?"

Dr Luke

1. Dr Luke said that "normal", when used on the AF Med 1 form, means that it appears that there is no functional problem and there is no visible anatomical problem of which the patient is complaining of symptoms.  "Abnormal" may refer to a finding that is of no clinical significance.  When AF Med 1 form referred to Mr Denhollander's spine as normal, it was not incorrect.  It was saying that the function of his spine was within the normal limits an average person has.  A person needs to have symptoms or show signs for a notation of abnormal to be made.  It is not enough that he or she has had pathology if there are no symptoms or signs of it.  If there are symptoms that come and go in a couple of days, it would be marked as normal.  If they lasted a long time or were something like a high fever, then the medical practitioner would be looking at something else.

1. In reaching a conclusion as to whether to write normal or abnormal, Dr Luke said, it is likely that a medical practitioner would examine a scar and would take into account such things as the manner in which a person got up from his or her seat in the waiting room, the way of walking and moving and the way in which he or she held his or her self.  To form a view in relation to posture and gait, it is not necessary to ask the person to do anything.  In order to test for power, tone and reflexes, it is necessary to do more when recruiting.  They are not done on discharge unless difficulties are apparent or unless the person complains of difficulties.  The feet are looked at for flatness or high arches.  The skin is looked at for its condition.  He or she is asked to move the toes and ankles.  He or she is asked if there are any problems with his or her anus.  If there are, it is looked at.  If the person said that there were no problems with the anus, it would not be looked at.  With regard to the nervous system, the medical practitioner will test by observation.  If there is a potential problem then the medical practitioner undertakes a thorough examination by testing such functions as power, tone and sensation. 

1. Rather than writing normal or abnormal, a medical practitioner may write "N/E" to indicate that there has been no examination.  Dr Luke said that the manner in which Mr Denhollander's AF Med 1 form had been completed did not suggest anything about the procedure that had probably been followed by Dr Alderman.  It is usual to have the person's Service Medical Record at the time of the examination.  Having regard to the manner in which the form had been completed, she considered that Dr Alderman had access to those records.  The word "laminectomy" appears on the form and that suggests that he did have the records because he might not have known the full operation based simply on what a patient tells him.  It is possible that he obtained the information by telephone but more likely that he had the records as is the usual clinical practice, Dr Luke said.

1. The fact that a person has a scar does not mean that the person is abnormal in some area.  A laminectomy, for example, leaves anatomical deficiencies but not necessarily an abnormal spine in terms of function.  Dr Luke drew a comparison with an appendectomy that leaves a scar after removal of the appendix.  That does not mean that the abdomen is abnormal in terms of function.  Anatomical change does not necessarily mean functional change.  If there is no functional change, the spine would be noted as normal.  An operation such as that undergone by Mr Denhollander will possibly give rise to symptoms afterwards but not always.  Symptoms can be a very temporary state of affairs.

1. Dr Luke agreed with Mr Cole that, had perianal numbness been noted at the time of the medical examination, the anus ought to have been recorded as abnormal.  If there were symptoms elicited of difficulties with stairs, that should have led to an abnormal notation, she agreed but only if there were some clinical signs.

1. Dr Luke said that a medical practitioner was not required to complete every box on the AF Med 1 form and it was not uncommon to see boxes not ticked.  If the person's Service Medical Record were not attached and the condition were known, it could be expected that the medical practitioner would note the condition.  If those documents were attached, there would be no need to do so. 

1. Assuming that a person said that he was having problems with his leg giving way when lifting heavy weights and going up stairs, Dr Luke said that she would not mark him as unfit for service.  If those symptoms were present at the time, he was not totally unfit for any sort of work in the RAN.  He could have been found another job, she said.  Other work included work as a driver or clerical work or any "land based" jobs.  Before the late 1990s it was common for people to be placed in such dry positions.  Since the late 1990s, the Chief of the Defence Force has decided that members of the Defence Force must be deployable i.e. able to pass a fitness test and to be able to do his or her own job and any other job on deployment. 

1. Dr Luke said that Mr Denhollander would not have been unfit for service at sea in the 1970s as he could have done clerical work or been a radio operator.  People who had been cooks in the RAN could transfer to another branch.  It was an easy enough process, she said.  Dr Luke considered that Mr Denhollander's being classified as Category A was not misleading or incorrect.  Dr Luke disagreed with Mr Cole's suggestion that Mr Denhollander would have been unfit for duties at sea.  Even with the stricter more modern criteria, he would not have been regarded as unfit.  If symptoms existed, they would have been investigated.  If the symptoms were of a permanent nature, Mr Denhollander would have been reclassified and perhaps been reclassified at the level below Category A.  If everyone in the RAN with those symptoms were discharged as unfit, there would be no-one left, Dr Luke said.  That was the case with retention but she could not comment upon re-enlistment and whether Mr Denhollander would have been permitted to re-enlist a year after his discharge.

1. Dr Luke had examined the clinical notes relating to Mr Denhollander since 1982.  They were not consistent with his having had any problem at the time of his discharge.  There was no mention of any neurological or skeletal problem.  Numbness does not come and go.  Once a person has a neurological impairment it usually remains.  There is no mention in the clinical notes, Dr Luke said, of Mr Denhollander's having any problems with his legs.  In the 1980s, there was only one reference to back pain and that occurred when Mr Denhollander had fallen from a Land Cruiser.  It appeared to be acute lumbar pain. The X-rays taken at the time showed only the previous operation but nothing new.  There was no chronic problem recorded since the 1970s and no record that Mr Denhollander had advised Dr Reid of his laminectomy while in the RAN.  It would be very unusual not to make a note if Mr Denhollander mentioned that he had the operation or that he had a problem.

Commander McLaren

1. In cross-examination, Commander McLaren agreed with Mr Cole that whether normal or abnormal is noted on an AF Med 1 form depends upon whether the person has an anatomical or functional disability or even pathology without symptoms.  Normality and abnormality is a matter for the doctor's opinion.  If a person had lost a limb, there would be no debate that it would be marked as abnormal.  Whether Mr Denhollander's spine is normal or abnormal depends on the definition of normal.  Anatomically, his spine was not normal.  Whether it was normal functionally depended on an examination and the symptoms presented.  If there were restrictions in using the spine, it would suggest functional abnormality.  The same issues determined whether perianal numbness meant that the anus was normal or abnormal.  From point of view of a research project, it is abnormal.  From the point of view of fitness for service, it would be treated as normal. 

1. Commander McLaren considered that Mr Denhollander would not have been considered unfit for service even if he could not stand for long periods of time, could not lift, had problems with ladders and could not engage in repetitive bending.  It all depended upon the degree of the lack of Mr Denhollander's function.  A decision would then have to be made as to whether he was fit for sea or fit for other duties.  Since 1975 or 1976, what is considered fitness for service has changed drastically.  People were previously retained with quite significant disabilities but are now discharged.  Mr Denhollander could have been a motor transport driver, a radio operator or a writer/clerk. 

CONSIDERATION

1. In view of the provisions of s. 55(6) of the FOI Act, the first matter to consider in a matter of amendment arising under Part V must be the nature of the document sought to be amended.  That is to say, is it a record of an opinion?  If it is such a record, it may only be amended if the opinion expressed in it was based on a mistake of fact or if the author of the opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion.  In this I agree with the interpretation in Re Close and Australian National University (1993) 31 ALD 597 (Senior Member Beddoe, Mr Atwood and Mr Julian, Members) at 601.

1. I have considered first whether the AF Med 1 form is a record of an opinion.  The evidence of Dr Luke, Commander McLaren and Mr Potter, together with the nature of the form and ABR 1991 persuades me that it is.  It is clearly a record of a medical examination that had to be undertaken by a medical practitioner.  Apart from questions such as weight and height, which can be answered precisely as they may be measured in absolute terms, most questions can only be answered after the medical practitioner has formulated an answer based on the "condition" of the person being examined and based on the medical practitioner's professional knowledge.  Questions requiring an answer of either normal or abnormal answer cannot be answered in absolute terms.  Commander McLaren expressly stated that the correct answers to such questions were a matter of opinion.  It was also inherent in the answers of Commander McLaren, Dr Luke and Mr Potter that this is so.  Both Commander McLaren and Mr Potter agreed that the answer would depend upon whether it were to be used for a research project or in another context such as ascertaining a person's ability to work.  All looked at the various aspects that would be taken into account in reaching the answer.  It was implicit in their evidence that the answer had to be a matter of professional judgement based on the way in which the person presented, any medical records that were available and the professional knowledge of the medical practitioner. 

1. Based on this evidence, I am satisfied that the AF Med 1 form is a "record of opinion" in the sense in which that expression is used in s. 55(6) of the FOI Act. It was a written document stating the medical practitioner's "… view held about a particular subject or point; a judgement formed; a belief … A formal statement by … an expert, etc., of what he or she judges or advises on a matter; professional advice …" (The New Shorter Oxford English Dictionary, 3rd edition, 1993). 

1. The next question I have considered is whether the opinion expressed in the AF Med 1 form was based on a mistake of fact.  The expression "mistake of fact" is frequently used in various contexts either alone or in company with the expression "mistake of law".  For all that, its meaning is rarely expanded upon.  As Kay LJ said in Barrow v Isaacs & Son [1891] 1QB 420 (Lopes Esher MR, Kay and Lopes LLJ):

"Very wisely, as I presume to think, the Courts have abstained from giving any general definition to what amounts to mistake." (page 425)

That view no doubt arises from the myriad of circumstances that may arise and from which a person may be heard to say "I made a mistake".  At the risk of adopting an unwise course, though, I set out the first meaning of the word "mistake" given in the The New Shorter Oxford English Dictionary for it suggests breadth of its meaning:

"… A misconception about the meaning of something; a thing incorrectly done or thought; an error of judgement. …" (The New Shorter Oxford English Dictionary, 3rd edition, 1993)

The only limitation upon its meaning in the context of s. 55(6) is that it must be a mistake of fact and not of law.

1. Did Dr Alderman base the opinions he recorded in the AF Med form on a mistake of fact?  There was some discussion at the hearing as to whether a Board of Medical Survey should have been convened and whether Mr Denhollander should have been discharged without its having been convened.  The submission made on behalf of Mr Denhollander was that, in circumstances in which reference was made to a disability on the AM form, it triggered a process whereby the member was referred for treatment and/or assessment of his or her disability by a Board of Medical Survey to recommend the discharge category. 

1. The submission raises a number of issues.  The first is whether there was a requirement that Mr Denhollander be referred to a Board of Medical Survey.  Mr Denhollander had noted on the AM form that he had suffered an abscess on the spine and that he still suffered aches in the region of his spine following the operation.  He attributed the aches to the operation and said that they occurred if he bent too often.  They seemed to clear after a good night's sleep.  According to ABR 1991, a disability claimed or discovered was to be investigated and treated without delay.  The affected person's discharge might be deferred if it appeared that he or she would not be fit for discharge on the due date and if he or she so requested.  It is clear from paragraph 07040 of ABR 1991 that the purpose of retaining the person was for the purpose of treatment but that retention would only occur if he or she had requested treatment when the disability became apparent.  The person was to be brought for an Interim Medical Survey if he or she was to be retained in hospital beyond a period of 30 days. 

1. In Mr Denhollander's circumstances, there is no suggestion in ABR 1991 that he should have been referred to a Board of Medical Survey.  That is not a procedure to which reference was made in the context of a discharge.  There is no evidence that Mr Denhollander had requested medical treatment for his condition that had not been carried out.  The operations had been completed some time earlier and there is no evidence that any follow up treatment was necessary at the time.  Mr Potter did not suggest that there should have been such treatment at that time.  Dr Anderson thought that there should have been a Final Medical Survey if there had been a number of Interim Medical Surveys.  There is no evidence that there had been a number of such surveys.

1. Dr Alderman was criticised in that he had not marked boxes 30, 31, 32 and 50 as either normal or abnormal.  The criticism is unfounded for, in accordance with ABR 1991, I find that those boxes could be omitted at the discretion of the Medical Officer.

1. On the evidence that I have, I am not satisfied that there was an error in the procedures that were followed on Mr Denhollander's discharge.  Even if there had been, that brings me to the second matter raised by Mr Cole's submission.  That is whether it would be relevant if there were such an error.  Section 55(6) of the FOI Act refers to a "mistake of fact" on which the opinion was based.  It does not refer to a mistake in the procedure that was followed by Dr Alderman or by others after the medical examination.  If it were a mistake that there was no Board of Survey, it would have been a mistake that occurred after Dr Alderman completed the AF Med 1 form and that would not have affected the facts on which he based his opinion.

1. The third issue raised by the submission made on behalf of Mr Denhollander is to identify the nature of the opinion sought from Dr Alderman.  In being asked whether aspects of the body such as the spine and the anus are normal or abnormal, I am satisfied that it is open to find, and I do find, that Dr Alderman was being asked whether they were normal or abnormal in terms of function and in terms of whether treatment was required.  He was not being asked a further question whether they were anatomically normal or abnormal.  Mr Potter drew a distinction between an impairment and a disability and, in doing so, drew a distinction between an anatomical change and a change in function.  Dr Luke and Commander McLaren also drew that distinction.  All three considered that Dr Alderman was being asked about normality and abnormality in terms of function. 

1. Taking the AF Med 1 form itself into account, I am satisfied that this was so but that he was being asked a further question about normality and abnormality in terms of treatment required.  It was a multi-purpose form used to record all medical examinations during service and on discharge.  It was used to identify disabilities and to assess the person's category of fitness for service.  Given the focus of the ABR 1991 upon treating any disability claimed or discovered prior to discharge it seems to me that it was also used to identify the need for any treatment.  That view is reinforced by the fact that the medical examination was to take place three months prior to discharge.

1. The fourth aspect of the submission made on behalf of Mr Denhollander is the time at which, and so the knowledge with which, any mistake of fact is to be determined.  It seems to me that it must be assessed at the time that Dr Alderman reached his opinion.  As Mr Potter said, there has been a growing awareness of the impact of a laminectomy since 1969.  Dr Alderman's opinion must be assessed on the basis of the knowledge in 1971 when he formed it. 

1. On the basis of his reference to an epidural abscess and to a subsequent laminectomy, I am satisfied that Dr Alderman was, on the balance of probabilities, likely to have had access to Mr Denhollander's Service Medical Record.  He certainly had Mr Denhollander's AM form in which he referred only to his abscess and his aches, at times, in his spinal region.  The Service Medical Record showed that Mr Denhollander had made a good recovery from the two laminectomy operations.  That is inherent in the clinical notes at the time.  There is no suggestion that Mr Denhollander required any further treatment at the time.  Apart from the aches in his spinal region, Mr Denhollander himself did not complain of any restrictions that he experienced as a result of his spine.  Indeed, he said that the aches seemed to clear after a good night's sleep.  In view of that, I am not satisfied that there was any mistake of fact on which Dr Alderman based his opinion not to mark any of the questions 31 to 50 as abnormal but to mark them as normal.

1. Later experience has shown that Mr Denhollander has suffered from the consequences of his epidural abscess but that does not detract from my view of matters in 1971.  I am supported in that finding also by the evidence of Dr Luke, Commander McLaren and Mr Potter, all of whom said it would not have been incorrect to mark them as normal as Dr Alderman did.

1. The fifth matter raised by the submissions made on behalf of Mr Denhollander relate to the Category A rating that he was given.  On behalf of Mr Denhollander, it was submitted that he should have been classified as medically unfit for Navy service or "MUNS" and that Dr Alderman had made a mistake in not doing so.  Dr Alderman's recommendation that Mr Denhollander be rated as a Category A was, I find, a record of his opinion that he was fit for service anywhere.  That was an assessment of Mr Denhollander's capacity for employment in the RAN. 

1. Mr Denhollander points to Dr Anderson's agreeing with him that he would have considered him to be unfit for service at sea but Dr Anderson stressed that he was expressing that opinion only on material given to him by Mr Denhollander.  That Dr Anderson would have formed that opinion does not mean that Dr Alderman based his opinion on a mistake of fact.  The Service Medical Record suggests that Mr Denhollander was making a good recovery.  Certainly, in February and March, 1970, it was recorded that Mr Denhollander's lower limb gave way when going down ladders but, on examination, no abnormality was found in his muscles or joints of his left lower limbs.  Furthermore, a year or so later, Mr Denhollander made no mention of it when he completed the AM form.  There was nothing in that form to suggest that he was experiencing any limitations that would affect his capacity to undertake employment in the RAN.  It was not asking him to describe the laminectomy or to give the precise diagnosis of any condition from which he was suffering or had suffered.  It asked him for his disabilities and he clearly understood what was called for when he referred to his abscess and to his aches in his spinal area.  He mentioned no other disabilities.

1. Having regard to all of these matters, I am not satisfied that Dr Alderman formed his opinion that Mr Denhollander should be classified as Category A on the basis of any mistake of fact.  As Mr Potter said, a backache does not mean that a person has an abnormal spine when a medical practitioner is assessing functional disability.  Dr Luke might have given Mr Denhollander a lower rating but I am not concerned with whether another person might have formed a different opinion on the same facts but with whether Dr Alderman reached his opinion on a mistake of fact.  I am satisfied that there was no such mistake of fact in this case.

1. I am satisfied on the evidence that Dr Alderman was not biased or unqualified to form the opinion that he did.  As to whether he acted improperly in conducting the factual enquiries that led to his forming his opinion, I have already set out the material to which I have found he referred.  In view of the disabilities disclosed by Mr Denhollander, I am not satisfied that he acted improperly in conducting the factual enquiries leading to the formation of his opinion.  That is so whether the word "improperly" is meant to convey that his enquiries were in some way "… Incorrect, inaccurate, irregular, wrong … unsuitable [or] inappropriate …" (The New Shorter Oxford English Dictionary, 3rd edition, 1993) whether because of the manner in which they were made or because they were not made or not adequately made.  Given that the AF Med 1 form was used to assess the person's category of fitness for service and to identify the need for any treatment, given that the clinical notes in Mr Denhollander's Service Medical Record, given the lack of any hint in the AM form that Mr Denhollander was experiencing any limitations, other than on an intermittent basis, and the limitations that he was experiencing were "cured" by a good night's sleep and given the more limited state of medical knowledge in 1971, I am not satisfied that Dr Alderman acted improperly in conducting his factual enquiries. 

1. As I am not satisfied that Dr Alderman's opinion was based on a mistake of fact or that he was biased, unqualified to form his opinion or acted improperly in conducting the factual enquiries that led to his forming his opinion as set out in the AF Med 1 form, I am prohibited by s. 55(6) from amending it.  As Mr Denhollander sought only amendment and not an annotation, I do not need to consider that form further.

1. That brings me to the AM form.  I am satisfied that it sets out Mr Denhollander's answers at the time he completed the form.  He did not complete three questions and it is accepted by both parties that the word "NO" is not his answer to those questions.  The AM form is incorrect in so far as it shows that word for it is a document that is his statement and it is a word that he has neither used nor authorised to be used.  In the sense that his answers continue to be his answers as he gave them in 1971, I am not satisfied that the AM form is in any sense incomplete, incorrect, out of date or misleading. 

1. Mr Denhollander said in his evidence that he did not have access to his medical records and so was not able to note the disabilities from which he was suffering.  He did, however, record his abscess on his spine and his aches.  The abscess was written on the form in response to a question as to the disabilities that he had suffered during service.  He expanded upon the operation that was a consequence of the abscess in the "remarks" section of the form.  The question about the disabilities that he considered to be due to or aggravated by his service, which he did not answer, would presumably incorporate any that he had given in response to the previous question.  It did not require him to have access to his medical records.  He said that, at the time, he did not know the answers to the other two questions i.e. questions 10 and 11.  I am satisfied that Mr Denhollander considers that the answers that he gave on the AM form were at least incomplete.

1. Assuming for the moment that the information that Mr Denhollander wrote on the form was incomplete, incorrect, out of date or misleading at the time that he wrote it, is that a proper basis for permitting it to be amended pursuant to s. 50 of the FOI Act. I think not in the circumstances of this case. The AM form accurately records what Mr Denhollander wrote. The FOI Act does not permit a person to re-write history because he or she has discovered that he or she should have, or thinks that he or she should have, written something else. To allow history to be re-written destroys the integrity of the record-keeping process by removing the historical trail and by introducing an artificial concept along the lines that we must have always known what is now clear to us. That is not a view that has found favour with previous Tribunals (e.g. Re Jacobs and Department of Defence (1988) 15 ALD 645 at 655 (Senior Member Dwyer) and I am not in support of it.

1. It follows that I am not satisfied that the AM form is incorrect, incomplete, out of date or misleading except in so far as the word "NO" appears against questions 9, 10 and 11.

1. For these reasons, I:

   1.vary the decision of the respondent dated  31 August, 2000 affirming a decision dated 16 August, 2000 by:

   (1)setting aside that part of the decision affirming the decision dated 16 August, 2000 in so far as it relates to questions 9, 10 and 11 of the form AM 146z; and

   (2)substituting a decision that the part of the decision dated 16 August, 2001 relating to form AM 146z be substituted with a decision that:

   (a)a line be placed through the word "NO" on each of the three occasions on which it appears; and

   (b)inserting a statement on form AM 146z that this has been done in accordance with this decision; and

   2.otherwise affirm the decision. 

   I certify that the ninety-eight  preceding paragraphs are a true copy of the reasons for the decision herein of
   Miss S A Forgie (Deputy President)

   Signed:          ...............................................................
     P. Paczkowski  Associate

   Dates of Hearing  14 and 15 November, 2001
   Date of Directions Hearing          23 May, 2002
   Date of Decision  30 September, 2002
   Counsel for the Applicant            Mr Cole
   Solicitor for the Applicant           Allen & Associates
   Counsel for the Respondent        Mr Elliott
   Solicitor for the Respondent        Australian Government Solicitor