Re Francis and Department of Defence
[2004] AATA 33
•16 January 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 33
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2000/464
GENERAL ADMINISTRATIVE DIVISION ) Re RONALD WILLIAM FRANCIS Applicant
And
DEPARTMENT OF DEFENCE
Respondent
DECISION
Tribunal Senior Member WJF Purcell Date16 January 2004
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
(Signed)
WJF PURCELL
(Senior Member)
CATCHWORDS
FREEDOM OF INFORMATION – application for amendment of personal records – record of opinion – opinion based on mistake of fact – author of opinion biased, unqualified or acted improperly in conducting factual inquiries towards formulating opinion – decision affirmed
Freedom of Information Act 1982 ss 48, 49, 50, 55
Veterans’ Entitlements Act 1986Denhollander and Department of Defence [2002] AATA 866
REASONS FOR DECISION
16 January 2004 Senior Member WJF Purcell 1. This is an application for review of a decision of the internal review delegate of the Department of Defence (the Department) of 17 November 2000, which affirmed a delegate’s decision of 14 July 2000, that there were no grounds to amend the applicant’s Naval medical documents, namely AF Med 1 Record, dated 14 July 1972.
2. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), together with the exhibits tendered by the parties. The applicant appeared with the assistance of his friend, Mr Denhollander, and gave oral evidence. Mr Elliott of counsel represented the Department, which called Commander A McLaren and Dr C Luke, who gave evidence by way of telephone link-up.
3. The applicant, who is 55 years of age, served in the Royal Australian Navy (the Navy) from 5 January 1965 when he was 16 years of age, until his “free discharge” on 16 July 1972, when he was 23 years of age.
4. On 13 April 2000 the applicant wrote to the Department, in part, as follows:
“I request of you to amend my Naval Medical Documents and relevant Service Documents to reflect the opinion of Col. P.G. Warfe, the Director of Clinical Services, and those of CMDR Sparrow, Dr. Luke and CMDR McLaren as stated in section 43, page 12, para. 1 of Defence Personnel Executive, Finance Conditions Branch Minute dated the 22/10/98.
File: S/994628, DGFC999(DE)/1998(AE1).
I believe that under sections 49 and 50(1)(b) of the FOI Act 1982 these documents are now ‘incomplete’,’ incorrect’, ‘misleading’, or ‘out of date’.” [T3/9]
5. On 5 May 2000 the applicant clarified by letter that the document he sought to be amended was the AF Med 1 Record dated 14 July 1972. He indicated that the items to be amended were items 7, 9 to 61, and 62. He also advised that he sought an amendment, so that the AF Med 1 Record would read “medical discharge” [T5].
6. Section 48 of the Freedom of Information Act 1982 (the Act) provides:
“Where a person claims that a document of an agency or an official document of a Minister to which access has been lawfully provided to the person, whether under this Act or otherwise, contains personal information about that person:
(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;
the person may apply to the agency or Minister for:
(c) an amendment; or
(d) an annotation;
of the record of that information kept by the agency or Minister.”
7. Section 49 of the Act provides:
“An application for amendment must:
(a) be in writing; and
(b) as far as practicable, specify:
(i) the document or official document containing the record of personal information that is claimed to require amendment; and
(ii) the information that is claimed to be incomplete, incorrect, out of date or misleading; and
(iii) whether the information is claimed to be incomplete, incorrect, out of date or misleading; and
(iv) the applicant's reasons for so claiming; and
(v) the amendment requested by the applicant; and
(c) specify an address in Australia to which a notice under this Part may be sent to the applicant; and
(d)be sent by post to the agency or Minister, or delivered to an officer of the agency or a member of the staff of the Minister, at the address of the office of the agency or Minister (as the case may be) determined in accordance with paragraph 15 (2) (d).”
8. Section 50 of the Act provides:
“(1) Subject to section 51C, where the agency or Minister to whom such an application is made 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;
the agency or Minister may amend the record of information.
(2) The agency or Minister 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 o the amendment.”
9. Section 55 of the Act, as far as is relevant for the purpose of this review, provides:
“(1) Subject to this section, an application may be made to the Administrative Appeals Tribunal for review of:
(a)a decision refusing to grant access to a document in accordance with a request; or
(aa)a decision granting access to a document but not granting, in accordance with a request, access to all documents to which the request relates; or
…
(g)decision refusing to amend a record of personal information in accordance with an application made under section 48; or
(h) a decision refusing to annotate a record of personal information in accordance with an application made under section 48.
…
(5) The Tribunal's power to make a decision on a review of a decision refusing to grant access to a document on a ground mentioned in section 24A includes a power to require the agency or Minister concerned to conduct further searches for the document.
(5A) The Tribunal's power to make a decision on a review of a decision of a kind mentioned in paragraph (1) (ab) includes a power to require the agency or Minister concerned to conduct further searches for the document.
(6) The Tribunal must not, on a review of a decision of a kind mentioned in paragraph (1) (g), make a decision that requires, or has the effect of requiring, an amendment to be made to a record if it is satisfied that:
(a) the record is a record of a decision, under an enactment, by a court, tribunal, authority or person; or
(b) the decision whether to amend the document involves a determination of a question that the applicant concerned is, or has been, entitled to have determined by a court or tribunal (other than the Tribunal); or
(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.”
10. The applicant is in receipt of Disability Pension at the Special Rate in accordance with the Veterans’ Entitlements Act 1986. He has the accepted disabilities of post-traumatic stress disorder (PTSD) and a back condition. He argues that on the basis of the medical evidence and the Australian Naval Health Regulations of 1972, which were available in respect of his medical conditions on the day of his discharge medical – 14 July 1972 – the AF Med 1 Record relating to his medical examination for discharge is incorrect and incomplete, and should be amended to make it correct and complete, so that he is not disadvantaged. Sections of the Record are not completed, and the medical evidence contained in Medical Record AM 146Z, completed on 14 July 1972, and outlining the disabilities he suffered at the time of discharge, have been ignored at the Discharge Medical. Some areas examined and described on the Record as “normal” were in fact “abnormal”; and other areas, such as “visual fields”, “emotional stability” and “mental capacity” described on the Record as “NE” (not examined) cannot constitute “normal health” if the assessment is based on function.
11. The applicant submits that in accordance with the Australian Naval Health Regulations in force in 1972, he was not in “normal health”, either physically or mentally. He was suffering from back problems, and what has subsequently been diagnosed as PTSD. Section 62 of the AF Med 1 Record should be amended to read “Medically Unfit for Naval Service”.
12. The Department contends that the AF Med 1 Record is a record of a medical examination undertaken by an examining medical officer, and contains the medical opinion of that officer at the time of the examination: Denhollander and Department of Defence [2002] AATA 866.. The opinion was based on the facts known to the medical officer at the time he conducted his examination. The medical opinion recorded in the Record was not based on mistake of fact. There is no evidence to suggest that the examining medical officer was biased, unqualified to form the opinion, or acted improperly in conducting the enquiries that led to the formation of his medical opinion. In these circumstances it submits, the Tribunal must not make a decision requiring amendment of the record.
13. The Department submits in the alternative, that the evidence predominantly relied upon by the applicant to support his claim that the medical examination record is incomplete, incorrect, out of date or misleading, has been obtained more than 25 years after his date of discharge. In these circumstances the contemporaneous medical evidence should be preferred. The AF Med 1 Record is an accurate record of the applicant’s medical status at the date of discharge, and is not incomplete, incorrect, out of date or misleading. In addition, the AM 146Z form was completed by the applicant on the same day, 14 July 1972. Even though the applicant alleges that he did not complete all entries on the form, and that some items were not completed by him, he signed the form, and on his evidence he turned his mind to the question of any disabilities he then suffered. The only disability identified on this form related to his back condition.
14. It is not in dispute that on 26 January 1968, while travelling to Vietnam on board HMAS Sydney (the Sydney), the applicant suffered a spinal injury as a result of falling down a ladder. He was “medivacced” to RANH Penguin for treatment. A perusal of his medical records indicates that a precise diagnosis of the injury could not be obtained at that time, because of the poor quality of the x-ray results. Subsequent orthopaedic opinion suggests that the applicant suffered a fracture at L1, and disc disruption at L4/5. On 12 March 1968, a medical survey report noted that the applicant suffered from a “Fracture Left 2nd Vertebral Body”. He was classified Category “Y” to remain in Penguin, for 6 months. Physiotherapy was available, and he was placed on light duties [N2/58].
15. The applicant lodged a claim for workers’ compensation; and as the injury had been variously described, a precise description of the nature of the injury was sought. On 1 August 1968 medical personnel considered that the applicant had suffered a fracture of the first lumbar vertebra. On 1 October 1968, another disability “post traumatic depression” was noted. In relation to his psychiatric health, the applicant had been referred to Dr McGeorge, Consultant Psychiatrist, and on 9 August 1968 Dr McGeorge considered that the applicant’s history of anxiety and depression since discharge from hospital, was attributable to the pain and discomfort he still suffered. Dr McGeorge concluded on 20 August 1968 that the applicant had no serious psychiatric condition, and on 16 October 1968 that “He should settle down eventually”. The applicant was classified Category “B” for the next 12 months.
16. On 3 July 1969, a further medical survey report noted that “Since September 1968 [the applicant] has been feeling normal. No trouble with back”.. It also recorded that the applicant stated “I feel fine”. He was assessed as suffering from no further disability, and was upgraded to Category “A”. He remained at Category “A” until his discharge in 1972.
17. In early September 1969 the applicant was involved in a motor vehicle accident, and on 23 September 1969 he was placed under close arrest for contempt. Dr Mitchell, the Surgeon Commander, on 30 September 1969, sought advice from Dr McGeorge, Psychiatrist. His referral and Dr McGeorge’s reply are in the following terms:
“…
30.9.69Sailor admits to behaviour with contempt (verbally) to 3 leading sailors over two days. Says this was due to ill temper at being involved in a car accident some days previously. He was unconscious for only a matter of seconds and did not seek medical advice at time. The accident will cost him personally over $100 and this and other things seem to be piling up on him.
Your advice as to whether there is any psychiatric aspect to this case in requested please.
J.H. Mitchell
Surgeon Commander
30.9.69Has been worried about his car which was involved in an accident and his father has been ill. For the past week he has been very irritable hence the outburst which resulted in a charge of “contempt”.. It is true that under stress, financial or otherwise, people do become touchy and explosive.
Twelve months ago I expressed a similar opinion after an accident in which he suffered a crush facture of L1 vertebra body. In view of this I would strongly advise against any further action on the contempt issue. He does not suffer any serious psychiatric condition only an emotional reaction to his circumstances, physical and psychological.
John McGeorge
Consult. Psychiatrist
…”[N 94/95]
18. There is no record of the applicant being referred for any psychiatric treatment or assessment between September 1969 and 26 April 1972, when he was diagnosed with “anxiety neurosis” at HMAS Nirimba.. Dr Clarke noted [N/112] that the applicant had suffered 2 similar episodes, that he was married now, and that since one week after the wedding his wife has been “… nagging him that he must leave the Navy. She cleared out last night because she wants him out of the navy. At the moment he is in the middle of a classic anxiety state and very aggressive …”.. Dr Clarke prescribed Valium 5mg. He was reviewed 2 days later on 28 April 1972 when he was noted as feeling better, and again on 15 May 1972 when he was much better, and only taking Valium if required.
19. In about February 1972 the applicant applied to become a submariner. On 17 March 1972 he was examined by Dr Clarke for “sub suitability” [N3/111], and the category recommended by Dr Clarke was Category “A”. His previous category was noted as Category “A” as at 15 July 1969.
20. The applicant maintains he was rejected, recalled, and finally rejected for submarine service because of his psychiatric disability. In these circumstances, he asserts his mental health was such that it could not be classified “as normal” at the time of his discharge, and he should have been discharged “Medically Unfit for Naval Service”.. The documentary evidence discloses however that the applicant was recalled for submarine suitability testing, but that the testing was cancelled. A note dated 5 May 1972 reads: “SUBMARINE SUITABAILITY TESTING. CANCEL ME RW FRANCIS” [N3/117]. I am satisfied on the evidence that the applicant was not rejected for submarine service because of his psychiatric condition, and I so find.
21. On 14 June 1972 the applicant wrote to the Commanding Officer, HMAS Nirimba, in part, as follows:
“ I have the honour to request Free Discharge in accordance with Reference RI 0805 due to compassionate circumstances.
2. This discharge application is made in respect of my wife’s mental and physical health.
3. My wife suffers from anxiety, depression and loneliness due to my service in the R.A.N.
4. Her mental condition at present and has been for the past year is very unstable. She lives in fear of my going away and leaving her to fend for herself. She is very prone to emotional upsets. I have it on good authority that she is in need of constant companionship and should not be left for any period of time to her own resources.
5. Her physical health has suffered since the loss of our child in December last year due to a miscarriage. This has also affected her mental instability. My wife steadfastly refuses to have any more children whilst I am serving in the Navy. The doctor attending her at the time informed me the miscarriage was due to her severe nervous condition caused by her emotional anguish concerning my being drafted to sea at the time. So this constant worry of my going away is severely disrupting my married life for I wish to have children now; but she insists that she is not going through what she went through before. The only answer to this situation is for her to be relieved of the constant worry of my going away and leaving her alone.
…
8. This whole situation is also effecting my service career. I find myself irritable with a “I DO NOT GIVE A DAMN” attitude most of the time. I do my job and that’s as far as it goes. I have been past out for my leading hands rate for over twelve months and do not look like getting it at all. This is due to my P.P.1’s. Service life is not the environment for a person with my present outlook. I feel I will not have any peace of mind in my married life until I am discharged from the service.
9. I cannot truly express on paper my desire for a discharge. One would have to live with my wife constantly to understand the gravity of the situation. In my honest opinion, Sir, I cannot go on living this way with out doing something I will be regretting the rest of my life. My wife and my marriage are all that I devote my life to. I will not loose her or let anything like this come between us. I implore you, Sir, to consider this application for a free discharge with the utmost haste!
…” [Exhibit R4]
22. Lieutenant Commander Bowles commented at the base of the applicant’s letter, that he had inquired carefully into the case, and considered the applicant’s statement to be a true representation of the facts.
23. On 14 July 1972 the applicant underwent a Medical Discharge Examination. Dr Clarke completed a Medical Examination Record, the AF Med 1 Record, on that day. He endorsed items 21 to 28 and 30 to 47 as “normal”. Items 29, 48 and 49, referring to “visual fields”, “emotional stability” and “mental capacity”, were respectively endorsed “NE” (not examined). Dr Clarke noted at item 60 that the applicant’s previous category was Category “A” as at 15 July 1969, and at item 62 Dr Clarke recorded his recommendation that the applicant be discharged “Cat A subject to x-ray result”. He was referred to radiology “For Chest X-Ray for Free Discharge …” [N3/123]. Dr Donohoo, Radiologist, reported on 14 July 1972 that the applicant’s lung fields were clear, and the pulmonary vasculature was normal, the heart was regular in contour, and was not enlarged.
24. The applicant contends that the following items, at least, should have been marked “abnormal”:
21. Head, face, neck, scalp
24. Teeth, gums
25. Ears – general
26. Tympanic membranes
39. Upper extremities
40. Lower extremities
42. Spine
43. Posture (standing)
44. Gait
45. Nervous system
48. Emotional stability
49. Mental capacity
He contends also that items 33, 51, 52, 53, 54, 56, 57, 58a, 59, 61 and 66 are incomplete; and finally that item 62 is incorrect and should read “Medically Unfit For Naval Service”.
25. On the day of the discharge medical, 14 July 1972, a form AM 146Z was signed by the applicant, but he maintains not completed in his handwriting. The form outlines the applicant’s then medical disabilities that he considered to be due to, or aggravated by, service. He stated that he suffered back pain on lifting heavy weights, or upon prolonged bending. This was as a result of the injury he suffered on the Sydney on 26 January 1968.
26. The applicant was discharged on 16 July 1972. On 12 September 1973, the Department received a request from the Department of the Army for the applicant’s medical documents, as he had applied for enlistment in the Army. The Army’s Medical Examination Board Record completed by Dr Fischer records a “diagnosis of a disability discovered”, namely hypertension [N3/126]. The applicant was not successful in his recruitment application.
27. Commander McLaren, Deputy Fleet Medical Officer at Maritime Headquarters in Sydney, said in evidence that a medical practitioner completing an AF Med 1 Record, does so in the context of a military examination – it is whether the person can carry out their routine trade tasks and any general further tasks that might reasonably be expected of them, without requiring occupational restrictions. One or two items might be ticked “abnormal” for example, a person might have sun damage to the skin, but that would not actually give the person any occupational restrictions. He could still perform all duties, and be classified as Category “A”.. Alternatively there might be a history of an injury, but the person was walking and moving around quite adequately, and might be considered not to have problems on ladders. The medical practitioner might tick the item as “normal” even though there might still be a bit of a bump on a bone, or a tender spot or a scar.
28. In relation to the term “NE” Commander McLaren said that it is quite common for items 48 and 49 – “emotional stability” and “mental capacity” – to be ticked “NE” because the mental state examination is a huge examination in its own right. In the present matter, Dr Clarke had examined the applicant recently on several occasions, and had diagnosed on 26 April 1972 “anxiety neurosis” and prescribed 5 mg Valium twice daily for 5 days, with review in 2 days time, when the applicant was noted as feeling better. Commander McLaren was of the opinion that Dr Clarke, on 14 July 1972, considered himself sufficiently familiar with the applicant’s mental and emotional stability to be able to give a characterisation, without doing a formal mental examination. It was not a significant departure from applicable procedures for a full examination not to be carried out before the applicant was certified as Category “A”.. She said that it was standard procedure, unless the applicant had been exhibiting a great departure from normal behaviour on the day, that the medical practitioner would not normally do a full examination.
29. Commander McLaren said in evidence that in relation to the applicant’s back condition, he is recorded as stating in form AM 146Z on 14 July 1972 that he suffered pain on lifting weights. He was not talking about a restricted range of motions or a weakness in the legs. As Commander McLaren interpreted the form, Dr Clarke’s examination showed no significant functional disability. He was examining functions, and from the point of view of fitness for service, Dr Clarke was of the opinion that the function was “normal”, and the extent of any disabilities that might have existed at the time, were not of a sufficient nature as to make the applicant eligible for a discharge of “Medically Unfit for Naval Service”.
30. Dr Luke said in evidence that in the context of a full medical examination recorded on an AF Med 1 Record, the medical practitioner would classify a system as “normal” when it is free from obvious visible abnormalities and functions within the normal range for someone, taking into account that person’s age, sex, build, what work the person had been doing; and in the Australian Defence Forces “normal” would also mean that the person was fit for all the duties of their particular service, Army, Navy or Air Force, and for their specific job or category (in the case of the Navy).
31. Dr Luke gave evidence that it was a matter of record that the applicant had suffered a crush fracture in 1968. He had recovered fully by 1972, and the purpose of the medical examination is to ascertain the situation at that time, whether it affects the discharge or continuing service, and not what happened years before. It was clear to the medical practitioner at the examination that he could find nothing physically wrong with the applicant. In relation to the items “emotional stability” and “mental capacity”, they are items on the form, that are really there for completion, if there is something grossly wrong. In that particular system “NE” really means not formally examined. Because the item appears on the form does not mean it must be formally examined, so “NE” is quite appropriate. Dr Luke summarised her views in her Minute of 14 October 1997, which reads, in part:
“…
4. At his discharge medical on 14 July 1972, his back was recorded as clinically “normal” in that it looked and moved as normal. His anxiety disorder came under the same reasoning i.e. he was certainly not suffering from PTSD or any other significant psychiatric disorder. To have been discharged Medically Unfit for further Naval Service would have [been] totally unreasonable since this classification has its own strict guidelines. Mr Francis did not meet those guidelines and, in fact, did not even come close to them to be remotely considered. This is why there was no requirement for either x-rays of his lower back or a psychiatric consultation prior to discharge. Both of these problems were expected to be self-limiting, and not to be interpreted as a reason to medically downgrade at discharge. Extrapolation of what might happen in 20 years time is beyond the scope of a discharge medical examination.
5. In relation to his discharge assessment not being confirmed, there was no need for such confirmation. I believe that Mr Francis may be confusing this with a Medical Survey.
6. It appears highly unlikely he would have been considered an “invalid” in the following years after discharge since he obviously felt well enough to apply for enlistment in the Army a few years later. His physical fitness and emotional stability were considered adequate for enlistment into the Army at that time but he was rejected on the grounds of high blood pressure only, not back or psychiatric problems. His back injury was noted as a minor one, with no relevant sequelae, which is what Mr Francis would have told the examining doctor. His anxiety disorder was not even mentioned. In some respects this examination could be interpreted as an added confirmation that even a few years after discharge, he was not of invalidity status.
7. In summary, there were no grounds for invalidity in 1972, and had he kept serving, he would probably have continued to be fit for full duties over the subsequent years.” [Exhibit A1]
32. In the matter of Denhollander, Deputy President Forgie considered the question of amendment under Part V of the Act, and said at paragraphs 75-77:
“75. 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.
76. 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.
77. 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).”
33. I adopt with respect the Deputy President’s reasoning. Being satisfied that the AF Med 1 Record is a “record of opinion”, s 55(6) of the Act provides that the record of an opinion may only be amended if the opinion was based on:
(a) a mistake of fact; or
(b)the author of the opinion was biased, unqualified to form the opinion, or acted improperly in conducting factual inquiries that led to the formation of the opinion.
In Denhollander, the Deputy President said at paragraph 78:
“78. 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, it meaning is rarely expanded upon. As Kay LJ said in Barrow v Isaacs & Son [1891] 1 QB 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.”
34. The applicant asserts that Dr Clarke based his opinions on mistakes of fact, in that when he endorsed many of the items “normal”, they should have been marked “abnormal”. I am satisfied on the evidence that the question being asked of Dr Clarke was whether aspects of the body were normal, or abnormal, in terms of function; he was not being asked whether they were anatomically normal or abnormal. He formed an opinion that at the time of the examination these aspects of the body were “normal”; and in my view these opinions were not based on errors of fact. In relation to the back condition there was a radiological history in respect of the applicant’s spine, but in terms of what was occurring at the time of the examination there was evidence that he was working in his ordinary duties, and not regularly receiving treatment for the condition at that time. There was a sound basis, in my view, for Dr Clarke’s opinion, that from a functional point of view the applicant’s back was “normal”.
35. In relation to the applicant’s emotional stability and/or mental capacity at that time which were endorsed “NE”, Dr Clarke, on the evidence, was familiar with the applicant’s history of anxiety, and did not consider it necessary for a full mental state examination to be conducted. This was Dr Clarke’s opinion; and I accept the evidence of Commander McLaren and Dr Luke that in these circumstances an endorsement “NE” was appropriate. I do not consider the absence of a full mental state examination to be a mistake in the procedure that was followed by Dr Clarke. He was of the opinion that such an examination was not necessary, and in my view that opinion was open to him and was not based on an error of fact.
36. In relation to Dr Clarke’s recommendation that the applicant should be classified Category “A”.. I am satisfied on the evidence that at the time he carried out his assessment there was sound basis for his opinion that the applicant continued to be appropriately classified as Category “A”. There was no mistake of fact.
37. In relation to the balance of s 55(6) of the Act, there was no assertion by the applicant in the course of the Hearing that Dr Clarke was biased, nor did he lead evidence on the topic. On the whole of the evidence there is nothing to suggest that Dr Clarke was unqualified to form the opinion. He was a legally qualified medical practitioner.
38. Finally, there was no assertion made, nor evidence led, of any alleged improper means or impropriety. The applicant asserted that certain procedures were not followed in the preparation of the Record, but these assertions related to an alleged departure from usual or appropriate procedure – not to any assertion of acting improperly in conducting factual inquiries that led to the formation of the opinion.
39. I am not satisfied on the evidence that Dr Clarke’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 inquiries that led to the formation of the opinion. I am prohibited therefore, by s 55(6) of the Act from making a decision that requires an amendment to the AF Med 1 Record dated 14 July 1972. The applicant cannot succeed in this application.
40. For these reasons the Tribunal affirms the decision under review.
I certify that the 40 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member WJF Purcell
Signed: .......................................................................................
AssociateDates of Hearing 7/8 April 2003
Date of Decision 16 January 2004
Counsel for the Applicant In person
Solicitor for the Applicant -
Counsel for the Respondent Mr Elliott
Solicitor for the Respondent AGS
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