Repatriation Commission v Cornelius

Case [2002] FCA 750

FEDERAL COURT OF AUSTRALIA

Repatriation Commission v Cornelius [2002] FCA 750

VETERANS’ AFFAIRS – whether a disease suffered by a veteran is connected with the circumstances of the particular war service rendered – whether respondent’s condition of carpal tunnel syndrome was war‑caused – whether the evidence before the Administrative Appeals Tribunal raised the connection as a “reasonable hypothesis” – whether evidence before the Tribunal capable of pointing to the clinical onset of the respondent’s carpal tunnel syndrome within relevant time period

Veterans’ Entitlements Act 1986 (Cth) ss 9(1), 13(1), 120, 120A(3), 196B(2)

Byrnes v Repatriation Commission (1993) 177 CLR 564 cited
Repatriation Commission v Deledio (1998) 83 FCR 82 followed
Robertson v Repatriation Commission AAT 12666, 2 March 1998 cited

REPATRIATION COMMISSION v TIMOTHY CORNELIUS

N1555 OF 2001

BRANSON J
14 JUNE 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1555 OF 2001

BETWEEN:

REPATRIATION COMMISSION
APPLICANT

AND:

TIMOTHY CORNELIUS
RESPONDENT

JUDGE:

BRANSON

DATE OF ORDER:

14 JUNE 2002

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed. 

2.The decision of the Administrative Appeals Tribunal be set aside and the decision of the applicant affirmed. 


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N1555 OF 2001

BETWEEN:

REPATRIATION COMMISSION
APPLICANT

AND:

TIMOTHY CORNELIUS
RESPONDENT

JUDGE:

BRANSON

DATE:

14 JUNE 2002

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. This “appeal” from a decision of the Administrative Appeals Tribunal (“the Tribunal”) arises under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). It raises for consideration the process of reasoning by which the Tribunal is to determine the question whether material before it raises a reasonable hypothesis connecting a disease suffered by a veteran with the circumstances of the particular war service rendered by that veteran.

    BACKGROUND FACTS

  2. The parties are in agreement that the respondent suffers carpal tunnel syndrome in both wrists. The Repatriation Medical Authority has determined a Statement of Principles dated 9 September 1997 in respect of carpal tunnel syndrome under s 196B(2) of the Act (“the SoP”). The SoP, which is No 71 of 1997, defines carpal tunnel syndrome as:

    “an entrapment neuropathy of the median nerve at the wrist producing paresthesias and weakness of the hand attracting ICD code 354.0.”

    An ICD code is a number assigned to a particular kind of injury or disease in the Australian Version of the International Classification of Diseases, 9th revision, Clinical Modification, effective date 1 July 1996.

  3. The respondent rendered operational service in Vietnam from 22 October 1968 to 22 October 1969.  In Vietnam the respondent undertook general engineering in relation to plant, including large vehicles and machinery and the repair of small arms.  He said that he spent approximately eight days per month working on small arms.  This work involved stripping and rebuilding arms.  He used screwdrivers and other tools in order to disassemble the arms and undertook a rapid forwards and backwards movement cocking and re‑cocking the arms.  He undertook general engineering work on an almost daily basis…

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Details
AGLC
Repatriation Commission v Cornelius [2002] FCA 750
Case
[2002] FCA 750
Decision Date

CaseChat Overview and Summary

In the case of Repatriation Commission v Cornelius, the High Court was asked to review a decision of the Administrative Appeals Tribunal concerning a claim for compensation under the Veterans’ Entitlements Act 1986 (Cth). The central issue was whether the Tribunal correctly assessed the connection between the veteran's carpal tunnel syndrome and his service in Vietnam. The veteran, Cornelius, claimed that his condition was related to his war service, specifically the repetitive tasks he performed while repairing small arms. The Tribunal had initially rejected the claim but later allowed it upon reconsideration.

The legal issues before the Court included the interpretation of the Statement of Principles concerning carpal tunnel syndrome and whether the evidence presented was sufficient to establish a reasonable hypothesis linking the disease to Cornelius's service. The Court had to determine if the Tribunal correctly applied the statutory framework in evaluating the claim, particularly under sections 120 and 120A of the Act.

The Court found that the Tribunal did not properly apply the statutory framework in assessing the claim. It concluded that the Tribunal erred in its interpretation of the Statement of Principles and misapplied the criteria for establishing a reasonable hypothesis. The Court emphasized that the Tribunal must strictly adhere to the four-step process outlined in previous jurisprudence, ensuring that the hypothesis is consistent with the Statement of Principles before proceeding to fact-finding. The Court held that the Tribunal's decision was flawed as it did not follow the required steps, leading to an incorrect outcome.

Ultimately, the Court allowed the appeal, set aside the Tribunal's decision, and affirmed the Repatriation Commission's original decision that Cornelius's claim for compensation should be rejected.

Orders

Orders of the court

1. The appeal be allowed.

2. The decision of the Administrative Appeals Tribunal be set aside and the decision of the applicant affirmed.

Background

Background to the litigation

This “appeal” from a decision of the Administrative Appeals Tribunal (“the Tribunal”) arises under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). It raises for consideration the process of reasoning by which the Tribunal is to determine the question whether material before it raises a reasonable hypothesis connecting a disease suffered by a veteran with the circumstances of the particular war service rendered by that veteran.BACKGROUND FACTS The parties are in agreement that the respondent suffers carpal tunnel syndrome in both wrists. The Repatriation Medical Authority has determined a Statement of Principles dated 9 September 1997 in respect of carpal tunnel syndrome under s 196B(2) of the Act (“the SoP”). The SoP, which is No 71 of 1997, defines carpal tunnel syndrome as:“an entrapment neuropathy of the median nerve at the wrist producing paresthesias and weakness of the hand attracting ICD code 354.0.”An ICD code is a number assigned to a particular kind of injury or disease in the Australian Version of the International Classification of Diseases, 9th revision, Clinical Modification, effective date 1 July 1996. The respondent rendered operational service in Vietnam from 22 October 1968 to 22 October 1969. In Vietnam the respondent undertook general engineering in relation to plant, including large vehicles and machinery and the repair of small arms. He said that he spent approximately eight days per month working on small arms. This work involved stripping and rebuilding arms. He used screwdrivers and other tools in order to disassemble the arms and undertook a rapid forwards and backwards movement cocking and re‑cocking the arms. He undertook general engineering work on an almost daily basis using heavy tools and lighter tools like screwdrivers, spanners and wrenches. The respondent claimed that after approximately five to six months in Vietnam he noticed a pain in each wrist. He treated the pain by placing his hands in hot water each morning and by using liniment and aspirin. He said that the pain ceased when he returned to Australia from Vietnam. Subsequently he experienced occasional wrist pain when doing inspection work and, later again, pain in both wrists when using pneumatic hammers and chisels and then the odd pain when working with small arms. The respondent left the army in 1986 and began working as a fitter‑and‑turner. For the first couple of years he experienced no problems with his wrists but then suffered very severe wrist pain. It appears that it was in November 1993 that the respondent first contacted a medical practitioner concerning his wrist pain, and 1994 when he received surgical treatment for carpal tunnel syndrome in both wrists.THE STATEMENT OF PRINCIPLES The definition of carpal tunnel syndrome contained in the SoP is set out in [2] above. Clause 3 of the SoP relevantly records that the Repatriation Medical Authority is of the view that there is sound medical‑scientific evidence that indicates that carpal tunnel syndrome can be related to relevant service rendered by veterans.

Evidence

Evidence Before The Court

Clause 5 identifies the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting carpal tunnel syndrome with the circumstances of a person’s relevant service. The factor upon which the Tribunal relied was that identified in clause 5(a) of the SoP, namely:“performing repetitive activities with the affected hand for at least two hours each day, for at least 65 days, all within a period of 120 consecutive days, and where the repetitive activities have not ceased more than 30 days before the clinical onset of carpal tunnel syndrome.”MEDICAL EVIDENCE Three reports prepared by Professor P Sambrook were in evidence before the Tribunal. The first report dated 6 March 2001 states in part:“He told me he first presented with this [ie carpal tunnel syndrome] in about 1993 when he developed numbness in both hands and also loss of power in the hands with the inability to grasp fine objects.…Mr Cornelius did not recall having any symptoms of any carpal tunnel during [his] service period, but he did describe stiffness in his hands at the end of the day frequently.…The earliest date of clinical onset of the carpal tunnel syndrome is 1993, when he presented with numbness and loss of power or grip in the hands. The symptoms of tiredness in the hands he described during his service period are not of those [sic] of carpal tunnel syndrome.…Stiffness or tiredness of the wrists at the end of the day after performing repetitive manual activity is not unusual, but does not represent typical symptoms of carpal tunnel syndrome. Moreover taking the view that the clinical onset is the time when the symptoms become severe enough to warrant presentation to a doctor, means that this is not the case for those symptoms.” In response to a request from the solicitors for the respondent Professor Sambrook, by a supplementary report dated 10 May 2001, advised:“It is not possible to exclude beyond reasonable doubt that the symptoms of wrist fatigue and stiffness at the end of the day during his service period were not [sic] an early sign of carpal tunnel syndrome.However, as noted in my report on pages 4-5, such symptoms are not unusual in the population in general and are in no way specific for carpal tunnel syndrome.” By a further supplementary report, again provided at the request of the solicitors for the respondent, Professor Sambrook acknowledged receiving additional information concerning the sustaining by the respondent of a fracture of the right wrist in July 1996. Professor Sambrook advised:“I could see no mention of symptoms referable to carpal tunnel in either 1991 or 1996. Reference to rheumatoid arthritis was however made by Dr Clarke.”STATUTORY PROVISIONS Section 13(1) of the Act renders the Commonwealth liable to pay pension by way of compensation to a veteran where the veteran is incapacitated from a war‑caused disease. The circumstances in which a disease is taken to be war‑caused are set out in s 9(1) of the Act. The relevant circumstances for present purposes is that specified by s 9(1)(a), namely that:“the … disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service … .”

Decision

Reasons for decision

BRANSON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

The notice of appeal identifies the following questions of law as raised on the appeal:“(a)the proper construction of the Statement of Principles concerning Carapal [sic] Tunnel Syndrome (the SoP);(b)whether symptoms of pain are capable of being treated as symptoms of ‘paraesthesias’ for the purposes of the definition of carpal tunnel syndrome in the SoP;(c)whether there was any material before the Tribunal capable of pointing to, as distinct from not excluding beyond reasonable doubt, the clinical onset of Mr Cornelius’ carpal tunnel syndrome ‘some five months after his arrival in Vietnam’;(d)whether it was open to the Tribunal, on the material before it, to find that the material pointed to the clinical onset of Mr Cornelius’ carpal tunnel syndrome ‘some five months after his arrival in Vietnam’;(e)whether it was open to the Tribunal to disregard the only expert medical evidence (that of Professor Sambrook) to the effect that the symptoms reported by Mr Cornelius and referrable to his service in Vietnam, were not symptoms of carpal tunnel syndrome.”CONSIDERATION The proper application of s 120 of the Act was considered by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571. The High Court stated:“The position may be summarised as follows: (1) First, sub-s.(3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.” With respect to claims lodged on or after 1 June 1994 concerning a disease in respect of which there is a Statement of Principles, s 120A(3) controls the application of s 120(3). The subsection requires that the hypothesis connecting the disease with the circumstances of any particular service rendered by the person is reasonable only if the relevant Statement of Principles upholds the hypothesis. In Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) at 97-98 the Full Court identified the course which the Tribunal must take in respect of a post‑1994 claim in respect of the incapacity of a person from injury or disease related to service rendered by that person in the following way:“1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). …3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”I will refer to the above as the four steps to be taken by the Tribunal.