Repatriation Commission v Brown
[1990] FCA 441
•24 AUGUST 1990
Re: REPATRIATION COMMISSION
And: DAVID WALTER BROWN
No. G672 of 1990
FED No. 441
Administrative Law
12 AAR 253
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Hill J.(1)
CATCHWORDS
Administrative Law - Veterans' Entitlements - Appeal from Administrative Appeals Tribunal - whether respondent's "ground down" teeth constituted an "injury" under Veterans Entitlements Act 1986 - meaning of "injury" - whether Tribunal had sufficient evidence before it to find that respondent was required to undergo treatment consisting of grinding down the teeth - whether Tribunal had erred in law in finding necessary causal consequence between respondent's injury and defence service as required by s.70(5)(a) of the Act.
Veterans' Entitlements Act 1986: ss.5(1), 7, 70, 81, 85.
HEARING
SYDNEY
#DATE 24:8:1990
Counsel and Solicitors Ms M Beazley QC and
for Applicant: Ms R M Henderson instructed
by the Australian Government Solicitor
Counsel and Solicitors Mr M Walton instructed by for Respondent: Messrs Grahame Goldberg Partners
ORDER
The appeal be allowed.
There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
The respondent, David Walter Brown, was fifteen years of age when he received a blow to his upper right central incisor. That blow led to a long history of dental discomfort for him which culminated in the removal of the tooth in 1974. Within the first year after the initial blow, the tooth had abscessed and probably there was an attempted root filling performed at that time.
In 1966, while the respondent was then on national service, the tooth was again damaged, this time in a football match. Further root canal therapy was apparently performed but there was subsequent deterioration. Meanwhile, the respondent served two periods of service in Vietnam. The first period commenced in March 1968 and continued until March 1969; the second commenced in April 1970 and continued until March 1971. He remained a serviceman until his discharge from the army on 25 April, 1986.
In 1972 a dental officer noted that he had made a "PJC on gold dowel" in August 1971 without interfering with the apical part of the old canal filling. He stated that there was at the time of examination "tenderness to percussion". There was no explanation in the evidence as to what was meant by a "PJC on gold dowel", but it may be assumed that it represented an appropriate dental procedure. The 1972 report continued:
"At present there is chronic infection in the bone around the apex with radiographic obliteration of the canal in the apical third which has not received the root filling material"
In 1974, while the respondent was serving in Papua New Guinea, the tooth was extracted by an army dental officer and a bridge was fitted. It is not suggested that the dental work then performed was in any way incompetent. As part of the overall treatment which included the construction and fitting of a bridge, the two immediately surrounding upper front teeth (referred to in the dental evidence as UR2 and UL1) were ground down virtually to the gum line, so that in effect only a small part of each of these surrounding teeth remained. Presumably, this provided the foundation for the fitting of the bridge.
The respondent's dental problems were not, however, totally concluded by the 1974 treatment, for, it would seem, a bridge is prone to cracking. Thus, in 1984 it was necessary for the bridge to be replaced, the first bridge having cracked. By 1985 this second bridge had also cracked and a new bridge was fitted as part of pre-discharge dental work. By 1987, after the respondent's discharge, the third bridge had cracked and required replacement.
So it was, that on 9 October 1987 the respondent lodged with the Department of Veterans' Affairs a claim. The claim was on the Department's standard form which is headed "Claim for Medical Treatment and Pension". However, having regard to the provisions of Division 4 of the Veterans' Entitlements Act 1986 (Cth) ("the Act") as to the determination of rates of pensions, these being related to the degree of incapacity of the veteran qualifying for a pension, it is clear enough that the respondent's claim was only for medical treatment. Effectively, the claim was a claim for a new bridge to replace the bridge that had cracked.
In June 1988, the respondent's claim was rejected by a Delegate of the Repatriation Commission. Not satisfied with this decision, the respondent requested that his claim proceed to the Veterans' Review Board which, after a hearing, gave its decision on 23 November 1988 affirming the Delegate's decision. In its reasons, the Board expressed the view that nothing in the conditions of the respondent's operational, peace keeping or defence service, caused or contributed to the deterioration or removal of the upper right central incisor and that accordingly, there was not sufficient ground for making a determination that the respondent suffered from a disability related to his operational or peace-keeping service.
The respondent then duly applied to the Administrative Appeals Tribunal for a review of the Board's decision. At the hearing before the Administrative Appeals Tribunal, at which the applicant appeared in person, the proceedings appear to have taken a somewhat different course from that which they had taken before the Veterans' Review Board. It would seem that for the first time, the relevant "injury" of which the Act speaks, was identified as the "ground down teeth". Thus, the issue before the Administrative Appeals Tribunal was identified as being whether, within the meaning of the expressions ascribed by the Act, the respondent had "become incapacitated from a defence-caused injury", the respondent's otherwise two healthy teeth, by virtue of their having been ground down in 1974.
The Tribunal did not consider the issue of incapacity, this being presumably accepted by the parties, and further, did not pass upon the question whether the provision to the respondent of a new plate amounted to "treatment" for the damaged teeth, this being a requirement which needed to be satisfied under s.85 of the Act before the respondent would be eligible for treatment under that section. Before me, these matters were also not in issue, senior counsel for the applicant indicating that her instructions were not to argue that the provision of a new plate was not treatment for the "injury", should I find for the respondent on the issues argued.
I should perhaps add at this stage, as it might be perceived to have been a source of some of the difficulty in the case, that, although the respondent offered to give evidence on oath, the Senior Member constituting the Tribunal, appears to have formed the view that there was no need for that course. And indeed, from what I have seen of the transcript, there was no dispute as to the facts before the Tribunal. Rather, the case was fought on the basis of the proper conclusion to be drawn from the undisputed facts. However, as will shortly be seen, the respondent made certain statements from the bar table which the Tribunal took into account as evidence.
Before the Tribunal, the respondent was successful. The Tribunal found that the effect upon the two teeth that had been ground down, constituted an "injury" for the purpose of the Act, and that this "injury" arose out of or was attributable to the respondent's defence service. In so doing, the Tribunal placed reliance upon Regulation 435 of the Australian Military Regulations, being regulations made under the Defence Act 1903, which regulations were in force at the time the respondent underwent his treatment.
The Tribunal found as a fact that:
"...the Applicant was required to undergo the medical treatment which he did undergo by the opinion of an Army dental officer and that it was for proper service purposes."
Accordingly, the Tribunal concluded that:
"...although the procedure related to an injury which was not a Defence-caused injury, namely the root canal problem which had its origin both pre-service and in the Skyville rugby game, the actual grinding down of the teeth being part of a surgical procedure to allow the prosthesis to be fitted constituted an "injury" under the Veterans' Entitlements Act 1986."
The Tribunal therefore set aside the decision of the Veterans' Review Board and remitted the matter to the Repatriation Commission with the direction that the injury to the teeth being more particularly described as upper UR2 and upper UL1 was a defence-caused injury.
The matter, therefore, comes to this Court as an appeal by the applicant Commission from this decision of the Administrative Appeals Tribunal, pursuant to the provisions of s.44 of the Administrative Appeals Tribunal Act 1975 (Cth), as an appeal "on a question of law".
The applicant submitted:
* That the Tribunal had erred in law in holding that the ground down teeth constituted an "injury" by virtue of applying the wrong legal test in defining what an "injury" was for the purposes of the Act.
* That the Tribunal had erred in law in that there was no evidence upon which the Tribunal could have found either that the respondent was required to undergo the treatment consisting of grinding down the teeth, or that that treatment otherwise fell within Regulation 435 of the Australian Military Regulations.
* That the Tribunal had erred in law in finding that there was the necessary causal consequence between the respondent's purported injury and his defence service required by s.70(5)(a) of the Act, as expressed by the words "arose out of" or "was attributable to", as used in that section.
The Statutory Background
The respondent's claim to be provided with treatment in the form of a new prosthesis is made under s.85 of the Act. That section makes it a precondition of eligibility for treatment that the applicant for such treatment be a "veteran", as defined, and that there be in force in respect of him a determination that the injury in respect of which the treatment is to be provided is a "war-caused injury". The expression "veteran" is defined in s.5(1) of the Act, inter alia, as a person who is, by virtue of s.7 of the Act, to be taken to have rendered "eligible war service". The expression "eligible war service" includes a period of "operational service", defined in s.6 to include, so far as is relevant to the present facts, continuous full-time service outside Australia as a member of the Defence Force that was allotted for duty in an "operational area". By the combined effect of the definition in s.5(1) of the expression "operational area" and the provisions of Schedule 2 to the Act, the respondent's service in Vietnam is "operational service" and therefore, "eligible war service".
Section 85 of the Act is to be found in Part V headed "Medical and other Treatment". Section 81 provides inter alia that Part V has effect in relation to a person who is or has been a member of the Forces as defined by s.68(1). Section 68(1) in turn defines a "member of the Forces" as meaning a person to whom Part IV of the Act applies by virtue of s.69. Section 69 provides for Part IV of the Act to apply to a person who has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before "the terminating date". There is as yet no terminating date. Thus the respondent, who has been a member of the Forces for a continuous period that commenced on 7 December 1972, is a member of the Forces in respect of whom the provisions of Part V including s.85 apply.
Section 81(2) of the Act provides effectively that in Part V, the expression "veteran" shall include a "member of the Forces" and a reference to "war-caused injury" is to be read as a reference to a "defence-caused injury". The expression "defence- caused injury" is then to be found defined in s.70(5) relevantly as follows:
"an injury suffered by such a member shall be taken to be a defence-caused injury... if -
(a) the... injury... arose out of, or was attributable to, any defence service... of the member."
It follows therefore that the relevant periods of service which are to be classified as either "eligible war service" or "defence service" are the periods of service in Vietnam from 4 March 1968 to 4 March 1969 and 2 April 1970 to 31 March 1971. The relevant periods do not include the respondent's service prior to 4 March 1968.
As already mentioned, it is necessary, before treatment is required to be provided in respect of an injury, that that injury be a "war-caused injury" or a "defence-caused injury". The expression "injury" is defined, somewhat unhelpfully so far as the facts of the present case are concerned, in s.5(1) as follows:
"`injury' means any physical or mental injury, and includes the recurrence of any physical or mental injury, but does not include a disease or the aggravation of a physical or mental injury".
An injury is to be taken as being "war-caused", relevantly, if (s.9(1)(b)):
"the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran".
The period of eligibility in which treatment is to be provided depends, by force of s.85(1)(a) and (b), upon the person requiring such treatment being a person either to whom a pension has been granted (s.85(1)(a)) or being a person who would have been granted a pension but for the fact that his incapacity was insufficient to justify the grant of a pension (s.85 (1)(b)). The present is a case falling within s.85(1)(b).
Entitlement of the respondent to a pension arises in the present case, if there be such an entitlement, under the provisions of s.70(1)(b), which subsection provides as follows:
"a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease".
Did the respondent suffer an "injury"?
It was argued by the applicant that the damage to the two healthy teeth, arising by virtue of their having been ground down to near the gum line was not an "injury". It was said that this was so because the grinding down of the teeth occurred, not as a result of the infliction of harm on the part of the dentist, but as a result of a particular type of treatment that the respondent underwent. It was further said that for there to be an "injury" in the normal sense of the word, there had to be a detrimental effect upon the person affected, or put another way, the effect upon the respondent, not being itself a harmful effect, could not be an "injury".
The word "injury" is, as both parties agreed, an ordinary English word. It is defined in The Macquarie Dictionary as meaning:
"harm of any kind done or sustained... a particular form or instance of harm."
The applicant also relied on the Shorter Oxford English Dictionary (3rd ed) the relevant meaning there given being:
"3. Hurt or loss caused to or sustained by a person or thing; harm, detriment, damage".
Some assistance may be gained from the judgment of the High Court in Australian Casualty Co Ltd v Federico (1985- 6) 160 CLR 513 at 527, where Wilson, Deane and Dawson JJ in construing a policy of insurance which referred to the alternatives of "injury" and "sickness" said:
"In that context, one would prima facie expect that `injury' would include any physical damage to the human body sustained as the identifiable result of a traumatic occurrence such as the external application of force or the internal application of pressure generated by personal exertion and that `sickness' would include bodily disorder sustained otherwise than as the identifiable result of a traumatic occurrence, ..."
In Public Trustee (WA) v State Energy Commission; Re McPherson (Dec'd) (1978-79) 23 ALR 129, Gibbs J in considering the meaning of the word "injury" in the Workers' Compensation Act 1912-73 (WA) s.7, expressed the view that there was no difficulty in describing a condition of loss of hearing commonly referred to as "boilermaker's deafness" as an "injury". His Honour said at 141:
"A person who suffers from that complaint has undergone a harmful physiological change, which can be described as an injury in the ordinary sense of the word."
However his Honour was of the view that the deafness from which the worker suffered could not be described as "personal injury by accident", occurring as it did slowly and gradually over a period of years as a result of noise exposure. The remaining members of the majority of the Court expressed no view as to the meaning of the single expression "injury", although it would seem that their Honours accepted the worker's deafness could be an injury.
In Re Felton and Commonwealth of Australia (1984) 6 ALD 296 Deputy President Hall of the Administrative Appeals Tribunal held that bowel and bladder dysfunction, paralysis of the plantar muscles, left foot and cutaneous anaesthesia of the thigh and buttocks all resulting from an operation performed upon the applicant constituted injuries resulting in incapacity for the purposes of the Compensation (Commonwealth Government Employees) Act 1971. Injury was defined in that Act as meaning any "physical or mental injury". The learned member said at 299:
"`Personal injury', for the purposes of the Act, is an expression capable of including not only accidental physical harm but also physical harm or damage intentionally caused, such as by an assault upon an employee... Equally, in my view, it is capable of including the harmful consequences of a surgical operation."
With respect I agree. While the Latin root of the word (injuria) might suggest that the harm had to be wrongful, (cf the first meaning given in the Shorter Oxford Dictionary, upon which no reliance was placed by the applicant:
"wrongful action or treatment; violation or infringement of another's rights; suffering or mischief wilfully or unjustly inflicted")
the modern usage of the word "injury" does not seem to depend upon whether the harm suffered has been wilfully or unjustly inflicted. In current Australian usage, at any rate, a person may be said to have been injured, if he or she has suffered some damage to his or her body, irrespective of the motives of the person who caused that damage. A person whose teeth are damaged by an accident occurring during the course of a football match in which all players abide by the rules, suffers just as much an injury as the person whose teeth are damaged by an intentional blow.
Nor does it seem to me that the fact that the respondent consented to his teeth being ground down affects the issue whether the consequence to his teeth is properly to be described as an "injury". A person might intentionally shoot himself in the leg, but is nevertheless a person who suffers an "injury".
What is, however, inherent in the concept of "injury" as the above dictionary definitions and discussion reveals, is that there be suffered by the person claiming to be injured, some harm. If one concentrates in the present case only upon the two teeth that have been ground down, it can be said that they have been injured in that there remain of the two healthy teeth but two stumps. However, the real issue is whether the respondent has suffered an injury: that issue is not in my view resolved in the present case by asking whether the two teeth have been injured. The present is an unusual case because when one focuses, as one must, on the respondent, it can be seen that the grinding down of the teeth to provide a foundation for a bridge was a benefit to the respondent rather than a harm suffered by him. In these special circumstances, which are quite different from those encountered by the Tribunal in Felton's case, it would be a strange use of language to refer to the respondent as having been injured by the grinding down of his teeth. It is for this reason that I am of the view that the respondent has not suffered an injury and that the Tribunal erred in law in finding that he had.
This conclusion is, moreover, consistent with the policy of the present legislation. A purpose of the Act is to ensure that medical treatment is provided at Commonwealth expense to persons who have suffered harm whilst on defence service. It is not to ensure that persons who have benefited from medical or dental treatment properly administered while in the service become entitled to be provided thereafter with free medical treatment where they suffered no overall harm but to the contrary a benefit from that initial treatment.
This conclusion is sufficient to dispose of the present appeal. However, since the case is regarded by the applicant as a test case and in deference to the full argument of counsel, I propose to deal with the remaining submissions. In so doing, it is to be assumed (contrary to my view) that the respondent has suffered an "injury".
Was the respondent's injury "defence-caused"?Because the present appeal is an appeal only on a question of law, the applicant was compelled to submit that there was no evidence upon which the Tribunal could have found that the injury (assuming there to be one) was "defence caused". However, the applicant also submitted that the Tribunal had erred in law in applying the wrong test as to whether the injury to the teeth was "attributable to" the respondent's defence service as required by s.70(5)(a).
In Repatriation Commission v Law (1980-1) 147 CLR 635 at p 648-9, Aickin J rejected an argument that the words "attributable to" should be read as requiring a temporal connection. In his Honour's view, with which Gibbs CJ, Stephen and Mason JJ agreed, the words point to a causal connection rather than a temporal one. His Honour stated, without disapproval, what had been said in this Court, (Repatriation Commission v Law (1980) 31 ALR 140; (1980) 47 FLR 57) viz that it was sufficient if the defence service was one of a number of causes provided that it was a contributing cause of the injury.
In Repatriation Commission v Bendy (1989) 10 AAR 323, Davies J said at 325:
"In Repatriation Commission v Law (1981) 147 CLR 635; 3 ALN N149, Aickin J, with whom Gibbs CJ, Stephen and Mason JJ agreed, when considering provisions of the Repatriation Act 1920 (Cth) accepted that it was sufficient if war service was one of a number of causes of a disease provided that it was a contributing cause. I have myself, on occasions, used the term `material contribution' in this context. The adjective 'material' is not necessary but its use is familiar. See, for example, Clover, Clayton and Co Ltd v Hughes (1910) AC 242 at 247, per Lord Loreburn; Hetherington v Amalgamated Collieries of WA Ltd (1939) 62 CLR 317 at 328 per Latham CJ and Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 564, per Rich ACJ, 567, 568 per Dixon J, 571, 572 per McTiernan J. The expression `contributed in any material degree' was used in the Workers Compensation Act 1958 (Vic) and is used in s.9(1)(e) of the VE Act and in s.7(3) of the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). In each case, the reference to materiality serves to make it clear that the contribution required is a contribution of a causal nature, that a contribution which is de minimis, which did not influence the course of events or which is so tenuous as to be immaterial is to be ignored. The term `material' is here used not in the loose sense set out in definition 12 of the Macquarie Dictionary, namely, `of substantial import or much consequence' but rather in its legal sense of `pertinent' or
`likely to influence'".
In that passage, and in the passages that followed, his Honour was in part reacting to an argument that had been based on the use by his Honour of the words "material contribution" in Holthouse v Repatriation Commission (1982) 1 RPD 287, which had apparently been the subject of some misunderstanding in the Tribunal.
The Tribunal in the present proceedings made reference to these authorities, as well as what had been said by Toohey J, at first instance in Law's case, reported at (1980) 29 ALR 64 and purported to apply them. The reasons for decision make it clear that the Tribunal regarded the proper test to be whether the defence service was, while albeit only one of the causes of the injury, a contribution of a causal nature. Thus, if the Tribunal fell into error, it was not in the way that it stated the relevant law, but in the way it applied it to the facts. Thus the submission, although expressed as a two pronged attack, at the end really amounted to a submission that there was no evidence before the Tribunal from which it could properly have concluded that the respondent's defence service was a contribution of a causal nature to the injury.
It was pointed out, and there was no dispute about it, that the damage to the respondent's teeth had arisen out of a condition that predated the respondent's defence service. However, it was conceded, in the course of argument, properly in my opinion, that if the damage to the respondent's teeth was, in addition, a result of some act which the respondent was required to submit to while on defence service, then it could properly be said that the defence service was a, albeit not the sole, contributing cause. It was not suggested that in such event, the defence service could be seen in the present case merely to be a matter that was de minimis.
The Tribunal found as a fact that the respondent was required to undergo the treatment that he in fact received. In so doing, the Tribunal relied on Regulations 197 and 435 of the Australian Military Regulations. The former provides inter alia that every member of the permanent forces, subject to immaterial exceptions, is subject to military law. The latter regulation, which is admittedly part of military law provides:
"(1)Any member may be required to undergo such medical treatment as is deemed by a medical officer, and such dental treatment as is deemed by a dental officer, to be necessary to cure, remove, prevent or to reduce the likelihood of any disease or infirmity which in the opinion of the medical officer or the dental officer affects or is likely to affect the efficiency of the member in the performance of his duties, or to endanger the health of any other members.
(2) For the purposes of Sub-Regulation (1) medical treatment shall include vaccination and inoculation, and dental treatment shall include the extraction and filling of teeth, the fitting of artificial dentures and prosthetic treatment for the cure of pathogenic conditions of the gingivae."
The Tribunal's finding of fact was expressed as follows:
"I find as a fact that the Applicant was required to undergo the medical treatment which he did undergo by the opinion of an Army dental officer and that it was for proper service purposes."
The Tribunal's reasons then continued:
"Had he not undergone that dental treatment it seems to me that apart from the general offence under Australian Military Regulation 203(1)(lx) "Conduct of the Prejudice", he would have also committed the specific offence under Regulation 203(1)(xxxi), namely, `Is wilfully guilty of any misconduct or wilfully disobeys whether in hospital or otherwise any orders by means of which misconduct or disobedience produces or aggravates disease or infirmity, or delays the cure'."
The applicant did not seek to argue the applicability of Regulation 203(1)(xxxi) and I express no view as to whether, assuming the treatment was required of the respondent, a refusal on his part to submit to it would have given rise to an offence under that regulation.
Such evidence as there was to support the Tribunal's finding of fact was not to be found in the documentary material that was tendered to the Tribunal. Rather, it was to be found in statements made by the respondent during the course of arguing the case from the bar table. Perhaps this was a function of the Tribunal's suggestion that there was no need for the respondent to give evidence upon oath. However, the applicant agreed that the Tribunal was entitled to take into account the respondent's unsworn comments made from the bar table, there being no objection to that course, and apparently no controversy at the hearing as to these matters. The Administrative Appeals Tribunal Act requires that the proceeding before it be conducted with as "little formality and technicality" as a proper consideration of the matters before the Tribunal permit (s.33(1)(b)). Further, s.33(1)(c) of that Act, entitles the Tribunal to "inform itself on any matter in such manner as it thinks appropriate."
There is, however, much to be said for the view that the Tribunal, in the conduct of its proceedings, should make it clear, particularly when an applicant before it is unrepresented, the difference between evidence and submission and, if its findings are to be made by reference to matters put from the bar table, require the matters stated to be in fact given in evidence, so that they may be regarded by all parties as indeed evidence to be taken into account in the proceedings. In any event, in this case, the applicant accepted that what was said from the bar table could properly be taken into account by the Tribunal in reaching its findings of fact.
The evidence of a periodontist, Dr Lewis, tendered before the Tribunal, was that at the time of the dental treatment, there were two options, either a partial denture or a bridge. Where only one tooth is missing, Dr Lewis wrote, a bridge would be more comfortable for the patient and "especially being in the services would not create the problem of his having to look after and maintain a denture". No doubt, this was particularly so in the tropics.
In the course of discussion in the Tribunal the following interchange occurred between the respondent and Mr Allen, the Senior Member constituting the Tribunal:
"Mr Brown: And that - that that was part of the conditions of service that I was required to submit to that dental examination and treatment, it was a causal connection, not just temporal, and that also given the set of circumstances of my posting at that time in Papua, New Guinea, I had little choice but to submit to that treatment there because of the lack of the alternatives in Papua, New Guinea. Mr Allen: Well I would have put it even stronger than that. The point is, and I notice from one of the submissions, a suggestion that you could have gone out to outside, that suffice to say that at that stage the Australian military regulations quite clearly required you to undergo such medical and dental treatment as was prescribed.
Mr Brown: I cannot find it, but I am firmly of the belief that in 1966 when I was enlisted in the Australian Army that I was required to sign a document to the effect that I would submit to medical and dental treatment.
Mr Allen: I do not think that matters. The Australian Military regulations are quite clear."
Later, during the course of argument, the respondent said:
"Just very quickly, sir. I submit that there was an option in the treatment that I received, that is established by Dr Lewis, a denture or a bridge. I submit that I was not given that option either in terms of me having a say in the preferred treatment. I would also submit that in civilian life, indeed, if I - and I will address that in a moment - if I had have had the option of consulting a civilian dentist a cost consideration may well have come into it."
It is clear that the evidence upon which the learned Senior Member based his finding of fact was quite slight. In particular, the passage first quoted above may be said to be open to the interpretation, as the applicant submitted, that the respondent was not specifically required by the dental officer to undergo the treatment, but merely believed that he was so required by virtue of some document he believed he signed. There is some evidence that the dental officer believed that such treatment was necessary. This is to be found in his report, wherein he noted that there was a chronic infection in the bone around the apex and set forth the treatment that he "contemplated".
That the treatment was deemed by the dental officer to be "necessary" or that the chronic infection was "likely to affect the efficiency" of the respondent "in the performance of his duties" can only have been a matter of inference, since the dental officer was not called to give evidence. Nevertheless, it can not be said, in my view, that there was no evidence upon which the Tribunal could have based its finding of fact. It is not to the point that this Court may have reached a different view on the evidence. It is a matter for the Tribunal to find facts, unless it is shown on appeal that the Tribunal has made an error of law.
I would not, accordingly, disturb the finding of fact made by the Tribunal.
It was submitted for the applicant that the grinding down of the teeth in preparation for the bridge should be seen as a different procedure to the extraction of the teeth, the latter being something that could be said to be necessary in terms of Regulation 435, whereas the former was not. This seems to me to be a somewhat artificial distinction. There was, so far as the evidence would suggest, but one course of dental treatment, the grinding down of the teeth being part of that overall treatment. To say that the grinding down of the teeth arose out of the choice to have a bridge once the diseased tooth was removed, is in my view misconceived.
A subsidiary, but not for that reason less significant submission of the applicant was that the dental treatment, (by which was meant, presumably, both the treatment and removal of the diseased tooth together with the steps necessary to fit the bridge as well as the grinding down of the healthy teeth as part of the work necessary to fit the bridge or alternatively either of those steps) was to be seen as a "purely" personal or domestic matter, and as such not attributable to defence service. The fact that the treatment occurred during the respondent's period of service and was carried out by an army dentist did not, it was submitted "convert what is otherwise a purely personal or domestic matter into one which arose out of or was attributable to the Respondent's defence service."
In support of this subsidiary submission, reliance was placed upon decisions in the area of workers compensation where the issue was whether an employee was acting in the course of his employment (eg the decision of Deane J in this Court in Commonwealth v Lyon (1979) 24 ALR 300 and other decisions referred to in Re MacKenzie (1984) 7 ALD 325 at 333, a decision of the Administrative Appeals Tribunal, and also the decision of Davies J. in Holthouse v Repatriation Commission (1982) 1 RPD 287.
The cases under the Workers Compensation legislation are decided in a somewhat different statutory context, and provide little assistance. The latter decision is, however, more apposite.
In Holthouse, the applicant for a pension under the Repatriation Act 1920, was posted to Quaker's Hill to take up duty there as Commanding Officer. He was either required, or alternatively it was desirable for him to move from his home in a Sydney suburb. The cost of the removal was borne by the Commonwealth but this cost did not include the removal of items such as pot plants. Since the applicant had decided to rent out his house, he moved a potted palm from one location in the house to another. In so doing he suffered a back problem, for which he sought compensation.
In finding against the applicant in that case, Davies J held that the applicant's defence service had not contributed in a material way to his disablement. His Honour quoted Denning J in Wedderspoon v Minister of Pensions (1947) 1 KB 562 at 563-4, where his Lordship had said:
"The cases show that when the cause of the death or disablement lies in the man's own personal or domestic sphere, and the war service does no more than provide the circumstances in which the cause operated, it is not attributable to war service
and then continued:
"The cause of Mr Holthouse's incapacity was his moving the potted palm from one place in his home to another. This was a matter which lay within the sphere of his personal life. The Defence Forces had no concern with whether Mr Holthouse maintained a potted palm, whether he kept it under the verandah, whether he put it out into the open or even whether he took it with him to HMAS Nirimba. The Defence Forces were totally indifferent to these matters, a fact which is made abundantly clear by clause 13 of the removal conditions which I have set out above. The case is thus unlike Commonwealth of Australia v Pearson (Smithers, Fox and Sheppard JJ), delivered 23 February 1982), in which a sufficient causal connection was found for Commonwealth employees' compensation purposes in a situation where the respondent was injured whilst skiing with the encouragement of superior officers during the course of training to be a member of the Navy ski team. A similar case was Commonwealth of Australia v Lyon, 24 ALR 300. By contrast, in McDermott v Commonwealth of Australia (Fox J, delivered 18 December 1981), the Court dismissed an appeal from a decision of the Administrative Appeals Tribunal which had held that an officer who had attended an office barbecue on the shore of Lake Burley Griffin and who was injured when he went for a swim was not entitled to compensation. Although the function which he attended had a sufficient connection with his employment, his swim was an activity which was personal to him. The Tribunal had described the swimmers as being on a frolic of their own.
In the present case, a majority of the Repatriation Review Tribunal found that the removal of the pot plant was not an event which arose out of, or was attributable to, Mr Holthouse's defence service. This was a decision on the facts and probably involved no point of law susceptible of review by way of appeal. Even if it did, I agree with the view taken by the Repatriation Review Tribunal. The removal of the pot plant was a matter which lay purely within the personal life of Mr Holthouse."
It can be seen that Holthouse was not a case where the applicant was required to perform the act which caused the injury; even if his relocation was required by the navy, a matter not decided by his Honour, the removal of the pot plant was clearly not. Rather, it was a matter which, as his Honour said was "purely", he might also have said "wholly" within the ambit of his personal, non-service life.
Holthouse's case is distinguishable from the present case in that, upon the finding of fact made by the Tribunal in the present case, the grinding down of the teeth was an act required to be performed upon the respondent pursuant to the Australian Military Regulations. Accordingly, the injury suffered by the respondent cannot properly be said to be one which is "purely" personal and thus not a matter to which the respondent's defence service contributed. Indeed, at the end of the day, I did not understand senior counsel for the applicant to so contend. Rather, she appeared to accept that if the Tribunal's finding of fact stood, namely that the damage to the teeth arose out of treatment that the respondent was required to undertake pursuant to Regulation 435 of the Australian Military Regulations, then the injury suffered by him (assuming that it was an "injury") was not in the sense used by Davies J purely personal.
In my view, the ground down teeth were in the relevant sense attributable to the respondent's defence service and the Tribunal did not err in law in so holding. Having regard to my conclusion that the respondent suffered no injury it follows that the appeal should be allowed. As to costs, it was a condition of the applicant being given leave to appeal against the decision of the Tribunal out of time that the applicant would undertake to indemnify the respondent in respect of his reasonable costs of the appeal. Accordingly I would make no order as to costs.
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