Re Roncevich and Repatriation Commission

[2006] AATA 660

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] aata 660

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2005/18

VETERANS' APPEALS  DIVISION		)
Re		JURE JACK RONCEVICH

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Justice Downes, President
Deputy President P E Hack SC
Brigadier Ermert, Member

Date26 July 2006 

PlaceSydney

Decision The decision of the respondent of 5 January 1998 to refuse the applicant’s claim for internal derangement of the left knee is set aside and the matter is remitted to the respondent for assessment in accordance with these reasons.

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

President

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – fall from a window causing injury in 1986 – applicant’s knee injury ‘defence-caused’ – Veterans Entitlements Act 1986 (Cth) – Statement of Principles, No. 60 of 1997 concerning internal derangement of the knee – Statement of Principles, No 32 of 2005 concerning osteoarthrosis – the former is satisfied but not the latter in respect of the knee injury - three separate pathologies regarding the knee - nature and diagnosis of the applicant’s knee injury in dispute – knee injury determined to be connected with the applicant’s defence service - decision set aside and matter remitted to respondent for assessment in accordance with these reasons

Administrative Appeals Tribunal Act 1975 (Cth) ss 33, 44
Evidence Act 1995 (Cth) ss 135, 136
Veterans Entitlements Act 1986 (Cth) ss 70, 120

Lees v Repatriation Commission (2002) 125 FCR 331
Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Robertson v Repatriation Commission (1998) 50 ALD 668
Roncevich v Repatriation Commission 66 ALD 105
Roncevich v Repatriation Commission 75 ALD 345
Roncevich v Repatriation Commission 218 ALR 733

REASONS FOR DECISION

Justice Downes, President
Deputy President P E Hack SC
Brigadier Ermert, Member

Statement of the Case

1.The applicant, Jure Jack Roncevich, injured his knee when he fell from the window of his room at the Holsworthy Military Barracks where he was stationed. He was affected by alcohol at the time because he had earlier attended a function in the Sergeants’ Mess at the Barracks. Mr Roncevich says that he is entitled to a pension under the Veterans’ Entitlements Act 1986(Cth) because the injury arose out of, or was attributable to, his defence service. That is, that it was “defence-caused”.

2.The respondent Repatriation Commission contends that the injury was not defence-caused. Moreover, the Commission contends now that the injury that afflicts Mr Roncevich’s knee is not capable of being regarded as a compensable injury. It raised this new argument for the first time just prior to the hearing, on 10 and 11 April 2006, having conceded the issue in two earlier hearings, held in November 2000 and April 2002.

Background

3.The applicant enlisted in the Australian Regular Army in February 1974 when he was aged 17 years. From all accounts he was a good soldier. He served until February 1998 when he was discharged with the rank of Warrant Officer Class 1. At that time he was the Regimental Sergeant Major (RSM) of NORFORCE.

4.In February 1986 the applicant was a Sergeant in the 3rd Battalion, Royal Australian Regiment (3RAR). He lived on the base at Holsworthy in a room on the upper floor of the two storey Kapyong Line Sergeants’ Mess.

5.Mr Roncevich was one of a number of Senior Non Commissioned Officers (SNCOs) who were members of the Sergeants’ Mess at Holsworthy. We heard evidence from three other SNCOs from that mess – Mr Colin Lee, who was the RSM of 3RAR in February 1986, Mr John Bennett and Mr Robert Harbort.

6.There has been some confusion about the day on which the fall took place. In an undated statement provided by Mr Roncevich he gave the date of the incident as being 27 February 1986. That date was accepted without question in two earlier hearings in the Tribunal[1] and in the various appeals from those decisions.[2] But it seems plain that the incident did not occur on 27 February, rather, it seems likely that it occurred on 25 February 1986.

[1] [2001] AATA 199 and [2002] AATA 343.

[2] [2001] FCA 1320 (66 ALD 105); [2002] FCA 1458; [2003] FCAFC 146 (75 ALD 345) and [2005] HCA 40 (218 ALR 733).

7.We reach that conclusion having regard to the evidence of Dr David Hutton who was at the time the Regimental Medical Officer of 3RAR. Dr Hutton treated Mr Roncevich on the days following his fall and, he accepts, made a mistake in recording the date of his initial consultation with Mr Roncevich after the fall. That error seems, in part, to have led Mr Roncevich into confusion about the date of the fall but, as we say, we consider that the evidence points to it as having occurred on the evening of Tuesday 25 February 1986.

8.In the late afternoon/evening of that day there was undoubtedly a function in the Sergeants’ Mess. There is a controversy, to which we will return, about the nature of that function. However there is no doubt that Mr Roncevich attended the function. In the course of the evening he drank a quantity of beer such that by the time he left the function around 8pm to 8.30pm he was affected by alcohol. He returned to his room, having excused himself with the permission of RSM Lee, intending to change into civilian clothes, iron his uniform for the next day and then return to the mess.

9.Having got to his room he undressed and, feeling the need to expectorate, he went to the window of his room, stood on a trunk beneath it and lent forward intending to expectorate out of the window. He overbalanced and fell to the ground below causing considerable pain, and injuries to his back and his left knee.

10.Mr Harbort was at the time a living-in sergeant in the same mess, two or three doors down from Mr Roncevich. He had heard groaning sounds and upon investigation noticed Sergeant Roncevich lying on the ground. He assisted him by picking him up, carrying him to the showers where he washed Mr Roncevich and then carried him to bed. The next day Mr Roncevich was examined by Dr Hutton. He complained of an injury to his back. Dr Hutton prescribed bed rest and ordered an x-ray of the lumbar spine. The following day, 27 February 1986, Mr Roncevich’s back was still painful and, in addition, he was complaining of pain to his left knee. On 30 April 1986 the knee was examined arthroscopically under general anaesthetic by Dr Clark. A peripheral tear to the posterior- middle third of the lateral meniscus was noted.

11.Mr Roncevich eventually returned to full duties including undertaking a parachute course in September and October 1986.

12.Thereafter, Mr Roncevich undertook all the duties required of a SNCO in an infantry battalion including some 49 parachute jumps, frequent route marches and physical training. He also played rugby for the army on a regular basis.

13.On 12 August 1997, Mr Roncevich, who was then still serving in the army, made an application to the respondent for a disability pension based, in part, on problems that he was experiencing with his left knee. That claim was rejected by the respondent on 5 January 1998 and that decision was affirmed by the Veterans’ Review Board in a decision given on 13 April 1999.

14.Mr Roncevich made application to this Tribunal on 27 May 1999. The decision of the Veterans’ Review Board was affirmed by the Tribunal in a decision dated 16 March 2001: see [2001] AATA 199.

15.Mr Roncevich appealed the decision of the Tribunal to the Federal Court. On the hearing of the appeal, the respondent conceded an error on a question of law on the part of the Tribunal. On 14 September 2001 von Doussa J set aside the decision and remitted it to the Tribunal for re-hearing: see [2001] FCA 1320 (66 ALD 105).

16.On 24 April 2002 a second Tribunal hearing was conducted. The respondent’s decision was affirmed in a decision given on 14 May 2002: see [2002] AATA 343.

17.An appeal from that decision was dismissed by Mansfield J in the Federal Court on 2 December 2002 (see [2002] FCA 1458) and by the Full Court of the Federal Court, by a majority, on 30 June 2003: see [2003] FCAFC 146; 75 ALD 345. Mr Roncevich obtained special leave to appeal to the High Court and on 10 August 2005 that Court allowed the appeal, set aside the decision of Mansfield J and ordered that the matter be remitted to the Tribunal to be determined according to law.

18.The matter is now before us for determination.

The New Argument

19.The respondent, having conceded the fact of an internal derangement of the knee at the first two hearings in the Tribunal, sought at this hearing to raise a contention (and lead evidence) that Mr Roncevich was not, in fact, suffering from that condition. Mr Roncevich did not seek an adjournment of the hearing to meet this new argument but instead opposed the admission of the ‘new’ evidence on discretionary grounds. It was not suggested that Mr Roncevich was prejudiced by the late raising of the issue. In circumstances where the proceedings have been on foot in the Tribunal for a period in excess of 7 years, it is understandable that Mr Roncevich did not want to further delay the matter, or to incur any further expense in obtaining additional medical reports. We reserved our decision and admitted the evidence provisionally. 

20.The applicant relied principally upon the broad discretion conferred on the Tribunal by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth) and suggested that the new evidence ought to be excluded or its use limited by analogy with ss 135 and 136 of the Evidence Act 1995 (Cth) which permits a court exercising federal jurisdiction to exclude evidence or limit its use where the evidence might be unfairly prejudicial to a party.

21.Whilst we have considerable sympathy for the position of the applicant in these circumstances it seems to us that we have no alternative but to permit the respondent to put in issue that which it earlier conceded. We reach that conclusion by reference to the statutory task that the Tribunal performs and also by reference to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Wang (2003) 215 CLR 518.

22.As to the former, the Tribunal exercises administrative power, albeit according to the judicial model. Its task is to determine the correct or preferable decision on the basis of all the material available. It is not bound by the rules of evidence nor is it governed by the Evidence Act.

23.In Wang (supra) the Court was concerned with the powers of the Refugee Review Tribunal following a successful appeal to the Federal Court and a remittal back to the Tribunal. The applicant, who had the benefit of favourable findings of fact at the first hearing, was seeking to preserve the benefit of those findings in the subsequent hearing. Gleeson CJ said, at para. [16]:

Under the statutory scheme, and in consequence of the other orders made by the Full Court, the Tribunal is now obliged to undertake a further review of the delegate’s decision. The Tribunal’s decision upon that review is to be made on the basis of the facts as they appear in the course of that review … The findings made by [the original Tribunal] will have no legal status in that further review.  

In our view, the concession by the respondent can be treated no differently to findings of fact earlier made by the Tribunal.

24.The proceedings are before us as a consequence of an order of the High Court that “the matter be remitted to the Tribunal to be determined according to law”. That order was not qualified, as it might have been, by reference to s 44(5) of the Administrative Appeals Tribunal Act.

25.It follows that we are of the view that it is open to the respondent to raise now the issue earlier conceded. Despite reaching that conclusion we should observe that the respondent’s approach in withdrawing an earlier concession is not the type of approach that the Tribunal expects of the executive branch of government, a fortiori when it is done a very short time before the hearing.  

The Statutory Setting

26.By virtue of s 70(1) of the Veterans’ Entitlements Act, the Commonwealth is liable to pay a pension by way of compensation to a member of the defence forces who “has become incapacitated from a defence caused injury”. By virtue of s 70(5)(a), an injury is taken to be a defence-caused injury if it “arose out of, or was attributable to, any defence service” of the member. In addition, the applicant relied upon s 70(5)(c) and s 70(7). By virtue of those subsections, an injury is taken to be a defence-caused injury where the incapacity was due to an accident that would not have occurred,

(a)    but for the member having rendered defence service; or

(b)    but for changes in the member’s environment consequent upon the rendering of defence service.

27.The task of determining whether a member is suffering from an injury and of determining the proper diagnosis of that injury is undertaken by the application of the standard prescribed by s 120(4) of the Veterans’ Entitlements Act. That is, to the reasonable satisfaction of the decision maker. There is of course no onus of proof: see s 120(6).

28.The manner in which s 120(4) is to be applied is also governed by s 120B(3) of the Veterans’ Entitlements Act. It provides:

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

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

(b) there is in force:

(i) a Statement of Principles determined under subsection 196B(3) or (12); or

(ii) a determination of the Commission under subsection 180A(3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

29.Two Statements of Principles are said to be relevant here – number 32 of 2005 concerning osteoarthrosis and number 60 of 1997 concerning internal derangement of the knee. In the former, osteoarthrosis is defined as meaning:

a clinical joint disorder associated with progressive loss of articular cartilage, sclerosis of the underlying bone, proliferation of bone and cartilage at the joint margins, and inflammation of the synovium, as well as a history of pain, impaired function and stiffness.

Internal derangement of the knee is defined in the latter as meaning:

a chronic disorder of the knee due to (alone or in combination) torn, ruptured or deranged meniscus of the knee, or torn or stretched collateral, cruciate or capsular ligament of the knee, resulting in ongoing or intermittent signs and symptoms such as pain, instability or abnormal mobility of that knee, attracting an ICD code in the range 717.0-717.5, or ICD code 717.8 or 717.9.

30.A Statement of Principles works on the basis of identifying factors that must exist before it can be said that, on the balance of probabilities, the particular condition is connected with the circumstances of service. In the case of osteoarthrosis the factor identified by the applicant was that in paragraph 6(f) of the relevant Statement of Principle, namely:

having a trauma to the affected joint within the twenty-five years before the clinical onset of osteoarthrosis in that joint…

The factor said to be relevant so far as internal derangement of the knee is concerned is paragraph 5(a) of the relevant Statement of Principles, namely:,

suffering a direct trauma or a twisting or wrenching injury to the affected knee:

(i) within the six months immediately before the clinical onset of internal derangement of the knee; and

(ii) resulting in pain and swelling of the knee within the 2 hours immediately following the trauma or injury….

The Witnesses

31.Oral evidence was given by the applicant, Mr Colin Lee, Mr Robert Harbort and Mr Wally Thompson. In addition we heard evidence from Dr David Millons and Dr Ian Jones, both consultant orthopaedic surgeons.

32.We regarded all the lay witnesses as being truthful and generally accurate although there are some evident inaccuracies that we will comment upon separately. We should particularly record that we found Mr Roncevich to be an impressive witness. In circumstances where he could easily have exaggerated his evidence he did not do so. In circumstances where he could easily have changed his evidence in order to give a better account of events he did not do so. He made proper and reasonable concessions when cross-examined and gave a reasonable account despite the passage of years.

33.Moreover, it is appropriate that we note the evidence of Dr Hutton who was the Regimental Medical Officer of 3RAR in the period from June 1985 to December 1986 and who knew Mr Roncevich well. In his statement dated 19 March 2006 Dr Hutton said of Mr Roncevich,

My recollection of SGT Roncevich is that he was disciplined, stoical and dedicated Senior Non Commissioned Officer (SNCO) with a strong sense of duty. His dress and bearing could not be faulted. He was the type of SNCO that would not be seen in the Regimental Aid Post unless he could not possibly avoid it (there was a culture of not seeking medical care or declaring injuries for fear of creating a medical record which would subsequently be used to medically downgrade them at their next Medical Board Examination, thereby limiting their prospects of future promotion).

It is important that we bear in mind that stoic and non-complaining approach of Mr Roncevich when considering the medical evidence in this case.

Events After the Hearing

34.In the course of submissions we gave leave to the parties to put on additional evidence regarding the likely effect of alcohol consumption on Mr Roncevich. Thereafter we received from the parties as indicated the following,

Respondent

·Report of Dr Graham Alexander Starmer (pharmacologist) dated 24 April 2006 ;

·Supplementary report of Dr Starmer dated 29 April 2006;

·Report of Dr Nicole Lee (psychologist) dated 4 May 2006;

·Supplementary report of Dr Lee dated 9 May 2006;

·Further report of Dr Starmer dated 12 June 2006 (responding to the applicant’s material);

Applicant

·Report of Alan Richardson (clinical biochemist) dated 13 August 2000.

35.The respondent objected to the report of Mr Richardson on the grounds that it was “irrelevant and potentially misleading”. We overrule that objection. The report of Mr Richardson was not prepared in relation to this litigation; rather it was prepared for another matter and was used by the solicitor for Mr Roncevich (with the permission of Mr Richardson), as illustrating general propositions about alcohol consumption and its effects. We do not find it either irrelevant or misleading. It, together with the other material relied upon by the respondent enables us to conclude that Mr Roncevich was affected by the alcohol that he had consumed such that his decision making ability, his balance and his reaction time were all impaired.

36.Mr Piper also sought leave after the hearing to tender a report dated 18 May 2006 from Dr Baddeley, the orthopaedic surgeon treating Mr Roncevich. The respondent objected to the admission of this report. Mr Piper subsequently withdrew the tender and we have had no regard to the report. 

The Issues

37.Against this factual and legislative background the issues that arise for determination seem to us to be these:

(1) was the injury defence-caused;

(2) what was the nature and diagnosis of the applicant’s knee injury;

(3) does the knee injury satisfy either of the Statements of Principles relied upon.

Defence-Caused

38.In the reasons for decision of McHugh, Gummow, Callinan and Heydon JJ in the appeal of this matter to the High Court (218 ALR 733), their Honours, at [17], expressed their agreement with the following passage from the dissenting judgment of Heerey J in the Full Federal Court ((2003) 75 ALD 345 at 350, paragraph [24]):

The tribunal said that the appellant’s intoxication did not “arise out of any task that (he) had to do as a soldier”. However, things a person does in the course of serving as a soldier are not limited to the obeying of lawful commands, directions and orders under disciplinary sanction pursuant to ss 27, 28 or 29 of the Defence Force Discipline Act (1982) (Cth). In Henderson v Cmr of Railways (WA) (1937) 58 CLR 281, where the High Court was concerned with a workers’ compensation statute which spoke of injury “arising out of or in the course of employment”, Dixon J said (at 204, citations omitted):

…To be in the course of employment, the acts of the workman must be part of his service to the employer. But the difficulty lies in the application of this conception. For the service consists in more than the actual performance of the work which the workman is employed to do. It includes the doing of whatever is incidental to the performance of the work. General expressions of this kind have not proved very helpful … Where the accident arises shortly before the beginning of actual work or shortly after its cessation, or in an interval when labour is suspended, and it occurs at or near the scene of operations, the question whether it arises in the course of the employment will depend on the nature and terms of the employment, on the circumstances in which work is done and on what, as a result, the workman is reasonably required, expected or authorized to do in order to carry out his actual duties. [Emphasis added by Heerey J]

39.Their Honours in the High Court also referred with evident approval to this passage in the reasons of Heerey J at [36] – [37]:

In the present case, the expression “arose out of, or was attributable to, any defence service”, although made up of ordinary words, is one that conveys a compound legal concept. It is not like the ordinary word “business” which was at issue in Hope[[3]] or the word ”insulting”: Brutus v Cozens [1973] AC 854; [1972] 2 All ER 1297. For upwards of a century in common law jurisdictions courts have construed the meaning of such expressions in workers’ compensation legislation. Accordingly the correct application of the expression to the facts found in the present case raised a question of law for the purposes of s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), subject to the need to make a further finding on the causation issue, as explained above...

The tribunal erred in law in the application of this statutory criterion. It effectively ignored what the appellant was, as a matter of practicality, required or expected to do as part of his service in the army. The primary judge did not correct that error. It might also be said that if injury can only arise out of or be attributable to defence service if it occurs when the claimant is doing something which he or she is ordered to do, it is strange that the Act contemplates injury being compensable even when it arises out of disobedience of an order, as long as there has not been a serous default or wilful act or a serious breach of discipline.

[3]        Hope v Bathurst City Council (1980) 144 CLR 1.

40.It is material to the present discussion to note the following observations from the majority judgment of the High Court at paragraphs [22] to [28] where their Honours said:

[22]     Another argument of the appellant should however be accepted. It was, that in asking itself whether the appellant’s intoxication was caused by, or arose out of a task that the appellant had to do as a soldier, it asked itself the wrong question, and not the question that the Act requires it to answer. The question that it should have asked is the one posed by s 70(5), whether the injury arose out of, or was attributable to, any defence service of the appellant.

[23]     The evidence in this case is capable of providing an affirmative answer to the correct question. As Dixon J said in the passage from Henderson cited by Heerey J in the Full Court, whether an event arises in the course of an activity, or as here, out of “an activity”, depends upon such matters as the nature of the person’s employment, the circumstances in which it is undertaken, and what, in consequence, the person is required or expected to do to carry out the actual duties. The connexion must however be a causal and not merely temporal one.

[24]     There is little doubt in this case that there was a requirement, albeit not one to be found in formal military orders, and an expectation, of attendance at the Sergeants’ Mess and the consumption in some quantity, even perhaps to the point of intoxication short of physical incapacity, of alcoholic drinks. So too, the need for the appellant’s return to his quarters and the preparation of his uniform for the next day, are capable of being seen to have arisen out of, or of having been attributable to, his defence service. The remaining question is whether, climbing on to the box to expectorate through the open window, and then falling because he was inebriated, similarly either arose out of, or was attributable to his defence service.

[25]     The point made by Heerey J argues in favour of a broad construction of s 70(5). Section 70(9) states that the Commonwealth is not liable under that section to a member in respect of death, injury or disease if any of these resulted from or arose out of a member’s serious default, wilful act, or a serious breach of discipline. It is not suggested that the appellant’s conduct even remotely approached the magnitude of a serious default, wilful act or serious breach of discipline, yet the respondent has concluded that the appellant’s drinking and his subsequent fall constituted such a departure from defence service as to disqualify him from obtaining compensation. The presence and language of s 70(9) argues strongly in favour of a construction of s 70(5) capable of embracing within its terms the appellant’s conduct on the evening of his fall.

[26]     These further observations may be made about the Tribunal’s reasons which included a statement that “[t]he situation was in fact no different to what they might have done, had they decided to go to a hotel away from the Base.” That what in fact happened occurred on the Base and interrupted the performance of a military duty, the preparation of the appellant’s uniform, were relevant matters. It was also of relevance that the inebriation of the appellant occurred on the Base. That is not to say however that a defence-caused injury inevitably could not have resulted if the events had occurred at an hotel rather than at the Base. Nor is it irrelevant that at the time when the appellant hurt his knee it is almost certain that he would have been subject to military discipline.

[27]     The use disjunctively in s 70(5) of the expressions “arose out of” and “attributable” manifest a legislative intention to give “defence-caused” a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connexion is capable of satisfying a test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.

[28]     In failing to pose and answer the correct question the Tribunal erred in law. That error constituted an appealable error of law within the meaning of s 44 of the Administrative Appeals Tribunal Act. The Federal Court in determining an appeal pursuant to that section may make such order as it thinks appropriate (s 44(4)), as may of course this Court on appeal from the Full Court. It is not appropriate however that this Court, or indeed the Federal Court decide the ultimate question of the appellant’s entitlement, that is, whether the injury to his knee was defence-caused, a conclusion which is available on the whole of his evidence.

[ Footnotes omitted]

41.Informed by these observations, but applying our minds independently to the assessment of the evidence before us, we are of the view, for the reasons that follow, that the applicant’s fall from the window and the injury that resulted was attributable to his defence service.

42.We need, first, to consider the evidence regarding the Sergeants’ Mess and its place within the military organisation. Whilst in camp the normal duties of a SNCO would finish up around 4pm. At the end of normal duties the SNCO’s would gather, as Mr Lee put it “to discuss unit matters over a beer”. The evidence of all the SNCO’s was to the effect that gatherings of this nature were very important to the proper functioning of the battalion. They enabled participants to exchange information that was relevant to their task as SNCO’s. Mr Bennett, who was a living-in sergeant in 1986, put the matter this way:

We dealt with various issues including, say, whether there was a shortage of supplies, whether particular “diggers” within our unit had issues, and generally anything at all military. As we did not lead a civilian life outside of the Army, discussions were invariably focused on military issues. … [T]he conferences in the Sergeants Mess, over some beers, which were daily, were an essential part of disseminating information between senior–non commissioned officers and keeping the spirit of comradery and organization within our battalion.

43.The respondent did not require Mr Bennett for cross-examination nor did it suggest that Mr Bennett’s evidence ought not to be accepted.

44.A further issue that needs to be noticed concerns the amount of drinking that was undertaken in the Sergeants’ Mess. The respondent was at pains to put the proposition that SNCO’s were not obliged to drink alcohol, either at all or in excessive quantities, and that it was a matter for individual soldiers to decide whether, and how much, they should drink.

45.There was no order requiring Mr Roncevich to attend the mess and there was no requirement that he drink the amount of beer that he did. But there was plainly an expectation that the applicant and the other SNCO’s would attend the Sergeants’ Mess each afternoon and, equally, an expectation that the applicant, as a living-in member on the Base would attend a function put on at short notice for any visiting dignitaries.

46.The applicant’s evidence that it was a general requirement of the RSM that living-in members attend the mess every evening unless there was a conflict with other duties was not challenged. The evidence of the RSM at the time, Mr Colin Lee, that all living-in members were required to attend the function on the evening of 25 February 1986 was also not challenged.

47.There was an issue raised by the respondent at this hearing (but curiously not in the earlier two hearings) as to the identity of the “visiting dignitary”. Contrary to the respondents submissions dated 11 April 2006, Mr Roncevich has never claimed that the person in whose honour the function was held was the then RSM of the Army, WO1 Wally Thompson OAM. Mr Roncevich has always said that he believed that the function was to welcome some visiting NCO’s from another unit. But Mr Lee and Mr Bennett were both of the view that the visitor was Mr Thompson. Mr Thompson had no recollection of attending a function at the Sergeants’ Mess at 3RAR at any time in February 1986.

48.It seems to us on the evidence that despite Mr Thompson’s lack of recall of the function he most likely did attend. We accept the evidence of Mr Lee and Mr Bennett that he did. In particular we accept the oral evidence of Mr Lee that:

…[I]t was not a planned visit, he just happened to be in the area and he rang me up in the afternoon and said “can I come down to the mess and have a couple of beers” and I … raked up whatever senior NCO’s and warrant officers we could …

It is apparent from Mr Thompson’s evidence that he is likely to have been in the area around the time of the function. His report dated 28 February 1986 refers to his recently completed visits to Land Command Headquarters, Training Command Headquarters and various formation units in 2 Military District including the East Hills barracks at Holsworthy.

49.It appears that the respondent did not obtain a statement from Mr Thompson until late March 2006, some 20 years after the event. On the basis of documents made available to him, Mr Thompson has been asked to reconstruct his movements in the week ending Friday 28 February 1986. He considered it unlikely, by reference to those documents, that he attended a function on either 26 or 27 February 1986 but does not expressly deal with the critical date, 25 February 1986.

50.We accept without question that Mr Thompson’s evidence was his best and honest recollection. However, it seems to us likely that he did attend an informal function at 3RAR Sergeants’ Mess on 25 February 1986. By informal, we mean one not pre-arranged but organised at the last minute in the manner described above by Mr Lee.

51.But even if such a finding were to be wrong, we are satisfied that there was a function at the mess on the evening of 25 February 1986 that Mr Roncevich, as a living-in SNCO, was expected to attend.

52.The next question that arises is that of the consumption of alcohol. The evidence of Mr Roncevich was that he drank between six and eight cans of full strength beer. That beer would have been consumed in a period of about four hours prior to Mr Roncevich returning to his quarters around 8pm to 8.30pm. Mr Roncevich describes himself as being intoxicated. He said:

… if I was to drive a car I would be over the limit but I still probably felt that I may have had control of my facilities [sic] and myself.

53.The respondent submitted that Mr Roncevich was not required or expected to drink alcohol to this extent and that he did so as a matter of his own personal choice. Reliance was placed upon the evidence of Mr Thompson that the amount of alcohol consumed was a matter of individual choice. So much may be accepted and, indeed, Mr Roncevich accepted that he was not forced into drinking to the point where he became intoxicated. But the key lies in this answer that he gave:

Sir, the policy comes out and it says certain things will be done, and certain things don’t. And one is that, I believe it was expected of me, because I lived in a mess, to partake of drinks with the RSM downstairs. The RSM, at that stage, drank at a rapid rate. He drank a lot and I assumed it was my responsibility to keep up with him. And I did that. So I’m just saying that was what I felt was expected of me. And I think other sergeants probably felt exactly the same.

54.That RSM Lee had expectations of Mr Roncevich of this nature is borne out by this passage in the statement of Mr Bennett:

Sergeant Roncevich was the Regimental Police Sergeant, in my recollection, that effectively placed him closest of the Sergeant’s to the RSM in hierarchy, and RSM Colin Lee had a close working relationship with Sergeant Roncevich. Whilst it was not against the rules to refuse to drink alcohol in partaking of these conferences, it was routine practice. It would have been perceived by us, if not the RSM himself, to be offensive to the RSM to refuse to participate in this practice.

Also relevant, as it seems to us, is this evidence of Mr Roncevich:

I – look I’m sure that I, in my mind, feel that I was obligated to drink. If you can ask sergeants from that era how they felt when they were down there with the RSM, and I think the majority of people would say exactly the same thing. Well I’m not sure, but I’m saying is that I felt obligated to drink, all my friends, my drinking circle that lived in, we felt obligated. If I wasn’t down in the mess when the RSM walked in he would send for me. I mean, that doesn’t say the quantities I had to drink, but I felt obligated to go down and drink with him because he would send for me.

55.Some oral evidence of Mr Thompson is also relevant to this question of drinking with the RSM. He said:

So what I’m saying there, there are the basic guidelines but the way the mess is run is really- it is the personality of maybe of the president of the mess committee. Some people are outward going and some not so outward going. Some are quiet and some are rather outward going. The only thing I would say there that the PMC of the mess in that time when I last visited the mess was a rather – well I put it to you this way, he was quite a character.

MR HANKS: That was RSM Lee was it? [MR THOMPSON]: Yes, RSM Lee. He was quite a character, he was very outward going and he was a man who liked to enjoy himself and enjoy the company of people around him.

56.Whilst we accept that Mr Roncevich was not required as a matter of duty to drink to the state where his faculties were impaired, we are well satisfied that there was an expectation that he would drink and do so quite heavily by the standards of today. No doubt the position is quite different in the Army at present with the greater recent awareness of the dangers of alcohol abuse. However we are of the view that in 1986 Mr Roncevich drank because he was expected to do so and because he was expected to keep pace with his RSM, Mr Lee. The critical events in this case occurred more than 20 years ago. We would be surprised if the expectations that we have found to exist at that time continued to exist in the culture of the present-day Army.

57.By the time Mr Roncevich returned to his quarters he was affected by alcohol. That caused him to do at least two things that he would not have done had he not been so affected – spitting out of the window (rather than in the bathroom) and climbing on his trunk to do so.

58.Mr Roncevich readily agreed that it was wrong of him to spit out the window. We accept that in ordinary circumstances he would not have done so. Similarly, Mr Roncevich accepted that it was risky to stand on the trunk in order to lean out of the window. But we consider that he did these things, which led to him overbalancing and falling out of the window, because he was affected by alcohol. Having made unwise decisions his impaired balance and reaction time only made matters worse.

59.It follows that we consider that the fall and the resulting injury are attributable to Mr Roncevich’s defence service. In the circumstances it is unnecessary for us to decide whether the injury was one deemed by s 70(7) to be a defence-caused injury.

The Nature and Diagnosis of the Knee Injury

60.In June 2000 Mr Roncevich was examined by Dr David Millons, a consultant surgeon with a special interest in trauma and orthopaedics. Dr Millons’ report of 14 June 2000 sets out the medical opinion most proximate in time to Mr Roncevich’s application. In the report Dr Millons expressed the following opinion:

As far as Mr Roncevich’s left knee is concerned, there was clearly an injury to the left knee when he fell out of the window. An arthroscopy performed not long afterwards demonstrated a tear of the lateral meniscus which was treated conservatively. He has gone on to develop some degenerate changes within the knee joint. Mr Kennedy at his arthroscopy in March 1994 found a degenerative tear of the medial meniscus, medial compartment degenerate change and a chronic anterior cruciate ligament tear. Perhaps that cruciate ligament tear was missed at the time of the arthroscopy performed after the fall from the window. Perhaps it was partially damaged at the time and gradually gave way thereafter.

On the evidence presented, left knee problems do seem to have had their origin in the fall from the window in February 1986 with the gradual deterioration in the condition of the knee thereafter.

61.It is also relevant, for the purposes of determining the issue of diagnosis, to consider the reports of Dr Ian Jones, a consultant orthopaedic surgeon. Dr Jones did not examine Mr Roncevich, rather, he was engaged by the respondent to consider the variety of medical reports and the medical history of Mr Roncevich’s left knee. Dr Jones considered that that material enabled a conclusion that Mr Roncevich has suffered from knee conditions attracting the following ICD Codes: ICD Code 717.2 (derangement of posterior horn of the medial meniscus); ICD Code 717.43 (derangement of posterior horn of the lateral meniscus) and ICD Code 717.83 (old disruption of the anterior cruciate ligament).

62.Finally, on the question of diagnosis, is the report of Dr Ross Kennedy, a consultant orthopaedic surgeon who examined Mr Roncevich in March 1994 and performed a left knee arthroscopy. Dr Kennedy reported that he had found a chronic anterior cruciate ligament tear and a degenerative tear of the medial meniscus with medial compartment degenerative change.

63.On the basis of this evidence we conclude that between February 1986 and the time of his claim for a pension, Mr Roncevich suffered from three pathologies – a torn lateral meniscus (observed in the April 1986 arthroscopy), a degenerate tear of the medial meniscus and a chronic anterior cruciate ligament tear. Each of these pathologies satisfies the definition of ‘internal derangement of the knee’ in the relevant Statement of Principles, No. 60 of 1997. There is a further question raised by the respondent as to whether Mr Roncevich continues to suffer from the first of these pathologies.

64.We note, as well, the argument advanced on behalf of Mr Roncevich that he suffered from osteoarthrosis. The oral evidence of Dr Millons was that in 1994, at the time of the arthroscopy performed by Dr Kennedy, Mr Roncevich had a joint disorder associated with loss of articular cartilage. However he also said that there was no evidence of sclerosis of the underlying bone, or of a proliferation of bone and cartilage at the joint margins and no indications of inflammation of the synovium. In our view the definition of osteoarthrosis is to be read cumulatively, that is, each of the factors must be present. Thus, progressive loss of articular cartilage, which Mr Roncevich had, does not amount to osteoarthrosis without the other symptoms that are listed in the definition and which were not present in Mr Roncevich’s left knee.

65.We are not satisfied on the basis of the medical evidence that Mr Roncevich suffered (or suffers) from osteoarthrosis. The conclusion is the same if we were to consider the definition of osteoarthrosis contained in the Statement of Principles, No. 72 of 1995 (as amended by Instrument No. 337 of 1995 and No. 353 of 1995) which was in force at the time that Mr Roncevich made his claim.

Connected With Service

66.Having determined that Mr Roncevich suffered from an internal derangement of the knee with the pathologies that we have described it becomes necessary to consider whether internal derangement of the knee is connected with the circumstances of his service.

67.Were the issue to be determined solely by reference to the medical evidence there is no doubt that the connection would exist. We have already made reference to the evidence of Dr Millons that the problems in Mr Roncevich’s left knee “seem to have had their origin in the fall from the window in February 1986 with the gradual deterioration in the condition of the knee thereafter”. To similar effect is this evidence of Dr Jones in his report of 27 March 2006 (as correct ed by his subsequent report dated 28 March 2006):

Based on available information the initial internal derangement of this patient’s left knee in the form of a lateral meniscus tear would have been consistent with the fall described in late February of 1986. The cause of the further internal derangement of this man’s left knee in the form of an old tear of the anterior cruciate ligament and the degenerative tear of the posterior horn of the medial meniscus is difficult to assess. The issue of possible injury at rugby has been raised but I believe it more likely that in spite of the apparent absence of an anterior cruciate ligament tear being diagnosed at the time of his arthroscopy in 1986 that the anterior cruciate ligament did suffer an injury at that time which progressed to the point of being clinically symptomatic and remained undiagnosed until 1994.

…

It is possible and likely that he suffered a partial ACL tear in his left knee following the fall from the window and this progressively deteriorated to the point where it became symptomatically and clinically evident in 1994 following arthroscopy.

68.But despite this evidence, Mr Hanks QC, who led Ms Ford for the respondent, submitted that we could not be satisfied of the connection between the internal knee derangement and Mr Roncevich’s defence service. That was so, it was submitted, because of the operation of s 120B(3) of the Veterans’ Entitlements Act. In circumstances where a Statement of Principles is in force with respect to a particular injury (as is the case here), that subsection requires the Commission (or the Tribunal) to be satisfied that for an injury to be defence-.caused,

·the material before the Tribunal must raise a connection between the injury and the service; and

·the Statement of Principles must uphold the contention that the injury is, on the balance of probabilities, connected with that service.

69.It was that latter element, satisfaction of the Statement of Principles, that it was submitted was not present here.

70.Paragraph 5 of the Statement of Principles identifies factors “which must exist” before it can be said that internal derangement of the knee is connected with service. That relied upon by the applicant was:

(a) suffering a direct trauma or a twisting or wrenching injury to the affected knee:

(i) within the six months immediately before the clinical onset of internal derangement of the knee; and

(ii) resulting in pain and swelling of the knee within the 2 hours immediately following the trauma or injury …

71.The respondent submitted that the evidence that Mr Roncevich suffered pain and swelling in his knee within 2 hours of the fall was “problematic”. It is true to say that Mr Roncevich did not expressly make reference to pain and swelling in his left knee during that period, rather, he spoke of what seemed to him to be the cause of his pain, his back. However it seems to us to be unnecessary that there be evidence from the person concerned that there were subjective feelings of pain. Moreover it seems to us to be impossible for there to be any objective evidence of swelling within the 2 hour period unless there happened to be very prompt medical attention.

72.But there is evidence that satisfies us, and that we do not regard as being “problematic”, that Mr Roncevich experienced pain and swelling in his left knee within two hours immediately following the fall from the window. That oral evidence comes from Dr Millons who would have expected him to have suffered left knee pain within 2 hours of the fall and who would have expected that his back pain would have masked any pain from the knee. It is inconceivable that Mr Roncevich could have suffered a lateral meniscus tear (at least) without there being any pain associated with that injury. Plainly the pain was masked by the injury to Mr Roncevich’s back.  Moreover, as Dr Millons said, the process of effusion or swelling that was noticed in Dr Hutton’s examination of 27 February 1986 could be expected to have started at the time of the trauma.

73.We conclude, by reference to the Statement of Principles, that Mr Roncevich suffered an internal derangement of the left knee, constituted (at least) by the lateral meniscus tear in the fall on 25 February 1986.

74.But the respondent submitted, in relation to that pathology, that the lateral meniscus tear had resolved by May 1994 and that Mr Roncevich does not now suffer from that pathology and did not suffer from it at the time when he made his claim in August 1997. Thus, it was said, internal derangement of the knee due to that pathology cannot be a defence-caused injury.

75.Reliance was placed upon two passages from the oral evidence of Dr Millons. In the first Dr Millons was asked to comment on an observation of Dr Kennedy in the 1994 arthroscopy that “(t)he articular surfaces and the lateral and patellofemoral compartments were in good condition.” Dr Millons agreed with the suggestion of Mr Hanks that that finding would indicate, so far as the lateral compartment was concerned, that the conservative approach taken back in 1986 had been justified by the course of events. Dr Millons also agreed with Mr Hank’s proposition that “Whatever’s causing the current problem with the knee, it’s not likely to be the lateral meniscus?”

76.The difficulty with the respondent’s approach to the issue is that Dr Millons was not giving evidence of his own examinations, rather he was commenting on what appeared to be the case from the report of Dr Kennedy. The consequence of the respondent’s late reliance on the argument is that no medical practitioner who has examined Mr Roncevich has ever been asked to examine him with a view to addressing the precise question that the respondent now raises. Additionally even when the respondent raised the point in its Statement of Facts, Issues and Contentions dated on 28 March 2006 it said no more than that “the IDK attracting ICD code 717.43 has resolved”, an expression that does more to conceal the point than to reveal it given that the term “IDK” had earlier been described as standing for Internal Derangement of the Knee.

77.Given the evidence of the initial injury and the absence of any evidence directly on the point that the respondent relies upon we are satisfied that the lateral meniscus tear had not resolved at the time that Mr Roncevich made his claim in 1997. Accordingly we conclude that the internal derangement of the knee due to that pathology is a defence-caused injury.

78.It next becomes necessary to consider the other pathologies in issue here. The respondent concedes, in paragraph 27 of its Statement of Facts, Issues and Contention dated 28 March 2006, that Mr Roncevich now suffers from an internal derangement of the knee attracting ICD codes 717.2 (derangement of the posterior horn of the medial meniscus) and 717.83 (old disruption of the anterior cruciate ligament). These injuries were observed for the first time by Dr Kennedy on 10 May 1994 although, as we have sought to explain in paragraph 63 above, the medical evidence has satisfied us that these injuries are attributable to the fall. But, says the respondent, we are not entitled to regard the evidence as satisfying us of the connection between the present injury and the fall.  That was so, it was said, because these injuries did not have a clinical onset, that is, they were not capable of being clinically diagnosed, within six months of the fall.

79.The argument is not a particularly attractive one. That it was raised for the first time a very short time before the hearing, and after the earlier concessions, makes it even less attractive.

80.But, in any event, we are unable to accept it. We reach that view for two reasons: on the basis of the evidence and because we do not consider that the internal derangement of the knee referred to in the Statement of Principles should be dissected into separate pathologies.

81.We propose to deal first with the medical evidence regarding clinical onset but before we do so we should consider what is meant by that expression. The respondent relied upon two cases where the expression has been considered – Repatriation Commission v Cornelius [2002] FCA 750 and Lees v Repatriation Commission (2002) 125 FCR 331.

82.In Cornelius (at para. [26]) Branson J referred with evident approval to the remarks of the Tribunal in Robertson v Repatriation Commission (1998) 50 ALD 668 at p. 670 where it had been said:

… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present …

Her Honour went on to say (at para. [28]):

The critical issue on this appeal is thus whether there was material before the Tribunal which pointed to the respondent becoming aware, within the period of thirty days from the time when he ceased to undertake the repetitive activities upon which his hypothesis relies, of some feature or symptom which enables a medical practitioner to say that the respondent had carpal tunnel syndrome at that time. Without any such material it cannot be said that the respondent’s hypothesis fits the “template” to be found in cl 5(a) of the SoP.

83.Subsequently in Lees a Full Court of the Federal Court (Heerey, Moore and Kiefel JJ), having referred to Cornelius, said (at para. [16]):

The purpose of the definition [of the injury or disease] is to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered from [the injury or disease].

84.Thus, our task is to consider whether there is evidence of some feature or symptom which would enable a medical practitioner to say, within six months after the fall, that Mr Roncevich had an internal derangement of the knee.

85.The respondent submits that that task is to be performed by considering separately the three conditions – the lateral meniscus tear, the medial meniscus tear and the anterior cruciate ligament tear. We have already considered and rejected the respondent’s argument that the lateral meniscus condition had resolved by May 1994 and that the applicant no longer suffered from that pathology when he lodged his claim in August 1997.

86.As to the anterior cruciate ligament tear and the medial meniscus tear, the respondent relies upon a number of pieces of evidence to make out the proposition that these pathologies did not have a clinical onset within a period of six months after Mr Roncevich’s fall from the window.

87.First, it is said that the surgeon who performed the arthroscopy on 30 April 1986 had had his attention expressly drawn to the possibility of a cruciate ligament tear and found no abnormality other than the tear to the middle third of the medial meniscus and some roughening over the medial femoral condyle. But the referral was made on 17 March 1986 and the operation was performed on 30 April 1986. It is not possible to know whether Dr Clark, who conducted the arthroscopy, still had in mind the issue raised by Dr Hutton many weeks earlier. It may be true to say that Dr Clark did not make a diagnosis of a cruciate ligament tear. But it does not follow that such a diagnosis was not capable of being made. We did not hear from Dr Clark nor did we have any report from him other than his clinical notes.

88.The respondent relies upon this passage of the oral evidence of Dr Millons:

But a clinician who approached this question at that time, 30 April 1986,   couldn’t make a diagnosis of cruciate ligament tear?--- No.

We do not regard Dr Millons as there saying that a clinician could not have made a diagnosis of cruciate ligament tear; rather we took Dr Millons to be saying no more than that the clinician who performed the procedure on 30 April did not, in fact, make such a diagnosis. And it is to be remembered that the Statement of Principles refers to clinical onset within six months; the arthroscopy was performed some two months after the fall.

89.Dr Millons gave some further evidence that we think is very relevant to the point. In his evidence in chief he said:

Well, if I can please just say this, that at an arthroscopy, which was performed a couple of months after the fall, he was found to have a tear of the middle third lateral meniscus, which is approximately a third of the middle third lateral meniscus which was left. It was felt to be stable. He was found to have a little roughing on the medial femoral condyle. And X-rays taken at the time had shown a fracture of the tibial spine. Now that suggests that there’s been some sort of, not only meniscal, but perhaps some ligamentous injury, that combination of factors. Now, if I may just go on from there to say that at arthroscopy, no comment is made as to whether the anterior cruciate ligament, the state of the cruciate ligament presumably wasn’t clinically ruptured at that stage to the point where it was recognisable at arthroscopy. It’s possible to damage a cruciate ligament and it may not be picked up initially at arthroscopy, if it’s only of a minor degree. But with a passage of time with activity that – the ligament may gradually degenerate and give way. Now, during that time when all that’s going on, the knee may be relatively or completely asymptomatic. There’s any number of footballers in the old days who ran around the park with a torn anterior cruciate ligament without any obvious problems. Unless you, I mean you can examine them and find it, but with good muscle control and one must remember he was a very, he was very heavily into the fitness, he would have been able to control relative instability in the knee. So I mean, I know there was sort of a seven year period here, where we don’t really have much in the way of these symptoms. But I still think that when we look at the fact that he has a torn anterior cruciate ligament now identified, we can say – It would be not unreasonable to state that there may have been damage initially of the anterior cruciate ligament which gradually gave away as time passed.

…

It may be the case and, to my reasoning, the most likely scenario is that there may have been some damage to the anterior cruciate ligament in 1986 which was not picked up arthroscopically and which might have been suggested by the X-ray changes and that because the ligament had not given way at that stage and still retained its elasticity, he was able to complete his parachuting course and play rugby league. But like all things chronic, with the passage of time, wear just gradually increases and the problem is then identified.

[Emphasis added]

90.From this evidence we conclude that the anterior cruciate ligament tear was clinically detectable within six months of the fall but, as it happens, not clinically detected in the April 1986 arthroscopy. The fact that it was not detected on clinical examination does not, of itself, mean that it was not capable of being clinically detected. All the medical opinion points to is the conclusion that the anterior cruciate ligament tear was a result of the fall. That evidence does not contradict the Statement of Principles nor does it raise a connection between injury and service in a different way not identified in the Statement of Principles: cf. Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at pp. 704 – 705, para. [67]. We do not rely upon the evidence of Dr Millons and Dr Jones about the connection between the injury and the fall; rather, we rely upon that evidence to enable us to more readily conclude that there was damage done to the anterior cruciate ligament that was clinically detectable but that was not picked up in the subsequent clinical examination.

91.We are unpersuaded by the respondent’s suggestion that undertaking a parachute course some months after the fall was inconsistent with there being symptoms in his left knee. Mr Roncevich said that he had symptoms but “I wanted to be in the unit more than the pain.” That that was his attitude is corroborated by the evidence of Dr Hutton that Mr Roncevich “was the type of SNCO that would not be seen in the Regimental Aid Post unless he could not possibly avoid it”. Equally we are in no doubt that Mr Roncevich (and others in a like position) was assisted in coping with the discomfort of left knee symptoms by taking “paralollies” – most likely anti-inflammatory and non-prescription medicines. In the circumstances described by Mr Roncevich and Mr Harbort we consider it likely that medicines were provided as they described but that Dr Hutton and Mr Thompson were not aware of the practice.

92.There is, as we have said, a second reason for rejecting the respondent’s approach of analysing each separate pathology by reference to the Statement of Principles.

93.It is accepted that each of the three pathologies – the lateral meniscus tear, the medial meniscus tear and the anterior cruciate ligament tear – answers the description of internal derangement of the knee in the relevant Statement of Principles. On the medical evidence they are related and arise from the fall from the window in February 1986. Mr Roncevich suffered a twisting or wrenching injury to the left knee. There was pain and swelling of the knee within 2 hours of that fall even if that pain was masked by the greater pain experienced from his back injury. Internal derangement of the knee constituted by the lateral meniscus tear was detected clinically within six months of the fall. The Statement of Principles is satisfied.

94.The argument for the respondent gives no effect to the definition of internal derangement of the knee, that is, a chronic disorder of the knee which is due to (alone or in combination) a number of differing pathologies.  Mr Roncevich has a chronic disorder of his knee. It is due to one or more of three conditions that each come within the relevant range of ICD codes. One or more of those conditions results in ongoing or intermittent signs and symptoms such as pain, instability or abnormal mobility of the knee. And, given that factor 5(a) of the Statement of Principles was plainly satisfied by reference to the lateral meniscus tear, it seems to us not to matter that a different condition, also answering the description of internal derangement of the knee but related to the same trauma, is now the principal cause of Mr Roncevich’s present symptoms. However it be caused, Mr Roncevich has had a chronic disorder of his left knee at all times from the fall in February 1986 onwards.

95.There was little evidence of the medial meniscus tear. But for the same reason that we conclude that the anterior cruciate ligament tear was a defence-caused injury we conclude that the medial meniscus tear was a defence-caused injury. It seems unlikely to make any difference in practical terms. 

96.Accordingly we conclude that the applicant suffered an internal derangement of the knee which involves a continuing lateral meniscus tear, medial meniscus tear and anterior cruciate ligament tear in combination. The internal derangement resulted in pain and swelling within the two hours following trauma and injury. The clinical onset of the derangement occurred within the six months after the trauma and injury because that onset was detected with respect to that part of the combination represented by the lateral meniscus tear within the period and because, in any event, we find that all three pathologies were clinically detectable within the period.

Conclusion

97.The decision is set aside and in lieu thereof it is determined that the applicant’s internal derangement of the knee is defence-caused. The matter is remitted to the respondent for assessment in accordance with these reasons.

I certify that the preceding ninety seven (97) paragraphs are a true copy of the reasons for the decision herein of Justice Downes, President, Deputy President Hack SC and Brigadier Ermert, Member

Signed:           ............[sgd].............
  Associate (Zoë Justice)

Date of Hearing  10 and 11 April 2006

Date of final submissions                   16 June 2006

Date of Decision  26 July 2006

Counsel for the Applicant                  Mr B Piper
Solicitor for the Applicants                 Pipers Solicitors

Counsel for the Respondent             Mr P Hanks QC, with him Ms E Ford

Solicitor for the Respondent              Australian Government Solicitor