Rickaby v Repatriation Commission

[2001] FCA 971

FEDERAL COURT OF AUSTRALIA

Rickaby v Repatriation Commission [2001] FCA 971

DEFENCE AND WAR – veteran’s entitlements – error of law whether Tribunal failed to apply the correct statutory test – whether Tribunal omitted to appraise testimony of veteran and of expert medical practitioners upon the basis of supporting reasonable hypothesis in conformity with applicable Statements of Principle issued by the Repatriation Medical Authority – whether Tribunal in substance and reality erred by determining instead whether it was satisfied beyond reasonable doubt that the veteran sustained the injuries the subject of the hypothesis which he had advance.

Veterans’ Entitlements Act 1986 (Cth) ss 5B(1), 6C(1), 7(1)(a), 9(1), 120(1), 120(3), 120A(3), 196B(2)

Arnott v Repatriation Commission [2001] FCA 262 referred to
Bushell v Repatriation Commission (1992) 175 CLR 408 applied
Byrnes v Repatriation Commission (1993) 177 CLR 564 applied
Deledio v Repatriation Commission (1997) 47 ALD 261 applied
Dixon v Repatriation Commission (1999) 29 AAR 235 applied
Lowerson v Repatriation Commission (1994) 50 FCR 252 referred to
Repatriation Commission v Deledio (1998) 83 FCR 82 applied
Repatriation Commission v Keeley (2000) 98 FCR 108 referred to
Repatriation Commission v Stares (1996) 41 ALD 212 referred to

BRIAN RICKABY v REPATRIATION COMMISSION

JUDGE:    CONTI J
DATE:      25 JULY 2001
PLACE:    SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1359 OF 2001

BETWEEN:	BRIAN RICKABY APPELLANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	25 JULY 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal against the decision of the Administrative Appeals Tribunal made on 28 November 2000, in so far as the same relates to the Appellant’s claim in relation to cervical spondylosis, be upheld.

2.The appeal against the above decision of the Administrative Appeals Tribunal, in so far as the same relates to the Appellant’s claim in relation to lumbar spondylosis, be dismissed.

3.The proceedings be remitted to Administrative Appeals Tribunal for determination according to law.

4.The Respondent to pay the Appellant’s costs of the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1359 OF 2000

BETWEEN:	BRIAN RICKABY APPELLANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	CONTI J
DATE:	25 JULY 2001
PLACE:	SYDNEY

INDEX

Paragraphs

1-2The Appeal

3-5The facts and circumstances propounded by the Appellant in support of his pension

6The decision of the Commission of 2 February 1996

7-10The preliminary review made on 25 June 1998 by the Commission of the application for review to the VRB

11-13Relevant provisions of the Veterans Entitlements Act

14-19The VRB decision of 9 March 1999 and the material placed before the AAT

20-26The medical material placed before the AAT

27-34The reasoning for and the decision of the AAT of 29 November 2000 in relation to cervical spondylosis and lumbar spondylosis

35-47Legal analysis in relation to the AAT adverse conclusion on cervical spondylosis

48Legal analysis in relation to the AAT adverse conclusion on lumbar spondylosis

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1359 OF 2000

BETWEEN:	BRIAN RICKABY APPELLANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	CONTI J
DATE:	25 JULY 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The Appeal

1. This appeal is brought by the Appellant Veteran Brian Rickaby against the decision of the Administrative Appeals Tribunal (the “AAT”) made on 28 November 2000, which affirmed the decision of the Veterans’ Review Board (the “VRB”) made on 9 March 1999 to reject the Appellant’s claim for medical treatment and pension entitlements, in so far as the same related to back pain involving the disability conditions of cervical spondylosis and lumbar spondylosis. The VRB’s decision had affirmed the preceding decision of the Repatriation Commission (“the Commission”) made on 2 February 1996 to refuse the Appellant’s claim for a Disability Pension under the Veterans’ Entitlements Act 1986 (Cth) (the Act) in respect of such disabling conditions.

2. The Appellant’s claim was related to injuries sustained by him during his service in the Australian Army from 1 February 1967 to 31 January 1969, which included active service in Vietnam from 21 November 1967 to 9 November 1968 as a rifleman with the Third Royal Australian Regiment.

   The facts and circumstances propounded by the Appellant in support of his medical treatment and pension application

3. The events said to be relevant to his claim occurred initially during his training in Australia in preparation for service in Vietnam, and subsequently when he was engaged in active service in Vietnam. The Appellant’s service in Vietnam constituted “continuous full-time service in an operational area”, within s 6C(1) of the Act (see the s 5B(1) definition of “operational area”, which definition picks up reference to Column 1 of Schedule 2 and thus to “Vietnam (Southern Zone)” in relation to the period of Australia’s involvement in the hostilities in that country from 31 July 1962 to 11 January 1973), and hence such service constituted also “eligible war service” within s 7(1)(a) of the Act. Consequently the provisions of s 9(1) of the Act, or some one or more aspects thereof as to “war-caused injuries or diseases”, have potential application in relation to the Appellant.

4. Three separate incidents are said to have caused or contributed to the Appellant’s conditions of cervical spondylosis and lumbar spondylosis the subject of the present appeal. The first incident took place at Singleton in the State of New South Wales in 1967 when, prior to departing for Vietnam, the Appellant injured his back and neck in the course of infantry training. On that occasion, the Appellant slipped and fell on some logs in the course of negotiating an obstacle course, thereby injuring his back and shoulder. The second incident, which is claimed to have exacerbated his injured physical condition still subsisting as a result of the first incident, occurred in the course of the Appellant’s service in Vietnam about two and a half months later, where the Appellant broke his nose and injured his neck when playing rugby with other army personnel. This incident arose from a situation when both rugby teams were engaged in a scrum, and a front row forward from the opposite team struck the Appellant in the face with his knee, thereby forcing his head backwards and breaking his nose. His nose was placed in plaster or a heavy bandage at the Regimental Aid Post. The Appellant was provided with pain killers, and he was placed on light duties. The third incident, which occurred not long after the second incident, involved the Appellant’s nose being broken once again in a rugby match as a result of “a scuffle” with another player. Once again the Appellant was provided with plaster or a heavy bandage, and put on light duties. I have extracted the foregoing description of such three incidents from the VRB decision, which further recorded that “… as a result of these injuries he had been experiencing pain in his shoulder area and his back” (pages 2-3).

5. Upon the Appellant’s return to Australia in 1968 and his discharge from the Army, he undertook a series of occupational pursuits in the building industry, primarily as a carpenter from the mid-1970s until June 1999. His Final Medical Board Report of 6 January 1995 contained the following:

   “Had lumbo sacral strain soon after commencing basic training. Was seen by Dr Chapman (Orthopaedic Surgeon) who found nothing abnormal, although an x-ray showed a spina bifida occulta in the first lumbar occulta. Still gets painful on movement. Had fracture of nasal bones in Vietnam…
   Had two bouts of malaria in Vietnam (he states) and was treated in 1 Aust Fd Hosp where he remained for 6 weeks. Still gets headaches at about 2 weekly intervals.”

   The Appellant was self employed from 1986 to 1996. From 1995 onwards, the Appellant found it necessary to reduce the number of hours he worked as a carpenter, because of neck pain and for other reasons not relevant to this Appeal. In mid 1999, the Appellant discontinued working as a carpenter as a result of stress and neck pain (the condition of “spina lumbar occulta” is described in [7] below).

   The decision of the Commission of 2 February 1996

6. Meanwhile on or about 3 October 1995, the Appellant lodged what was described by the AAT as an “informal claim” with the Department of Veteran Affairs for a disability pension, and thereafter lodged what was described as a “formal claim” on 23 October 1995. Such claim listed twelve alleged disabilities, including so-called “back pain”. Such disability was expressed in the following terms:

   “Sore lower back
   Heavy kit bags, having to sleep on hard wet ground etc.”

   The Commission’s reasons for decision of 2 February 1996, in so far as the same related to “back pain”, were in the following terms:

   “In this case the RMA (ie Repatriation Medical Authority) has not yet issued a Statement of Principles for Back Pain. Therefore my decision is based on all of the evidence that is before me at this time.

   Medical opinion obtained is to the effect that this condition is not attributable to the carrying of heavy loads – or of having to sleep on hard, wet ground or to any of the other conditions associated with your period of eligible service.”

   As will subsequently be seen, whilst Statements of Principles (“SoPs”) had not been issued by the Repatriation Medical Authority for “back-pain”, as such, there did exist SoPs relating to conditions of cervical spondylosis and lumbar spondylosis, which are the subject of focus in these Reasons for Judgment.

   The preliminary review made on 25 June 1998 by the Commission of the application for review to the VRB

7. A review was then sought by the Appellant’s Legal Aid Advocate on 1 May 1997 from the VRB. Under the heading “Back Pain”, the following was stated to the Commission in relation to that review application by the Appellant’s Advocate:

   “1.      Back Pain

   ·     No Statements of Principles in relation to rejected disability “back pain” which is related to lumbo sacral strain.

   ·     Please refer to the report of medical officer, dated 6 January 1969: “Had lumbo sacral strain soon after commencing basic training. Was seen by Dr Chapman (Orthopaedic Surgeon) who found nothing abnormal although an x-ray showed a spina bifida occulta in the first lumbar region. Still gets painful on movement.

   ·     Dr Chapman, Orthopaedic Surgeon in report dated 5.5.1967 noted that his “back pain” is “aggravated by the cold” which were part of his conditions during operational service according to the applicant’s statement.

   ·     The applicant contends his back pain as described in the service medical records as “lumbo sacral strain, April 1967 Kapooka” which was a pre-existing condition prior to operational service was then aggravated by conditions of service in 3 RAR Vietnam which included carrying a heavy ration pack and ammunition as well as damp conditions and an inability to obtain appropriate clinical management during his operational service.”

   Black’s Medical Dictionary (33^rd ed) (1881) describes the condition of “spina bifida” in the following terms:

   SPINA BIFIDA is one of the commonest of the congenital malformations. In the British Isles the combined incidence of ancephaly (qv) and spina bifida at birth is around 4 to 5 per 1000, but there are marked regional variations. It takes two main forms. SPINA BIFIDA OCCULTA is much the commoner of the two and consists of a defect in the posterior wall of the spinal wall, usually in the lumbar region. As a rule it has no deleterious effects unless the underlying spinal cord is affected. It has been said that one in every ten individuals has such a defect.

   …

   The usual site of the defect is in the lumbo-sacral, or lower, part of the spine.

   ….”

   Attached to that review application was the following statement dated 10 March 1997 signed by the Applicant:

   “I feel that the problems with my back have definitely been aggravated by my service in Vietnam because of the conditions endured during my 12 months there.

   I suffered pain while out on operations which had to be endured and was aggravated by carrying a heavy ration pack etc., ammunition and gun and continually being in wet clothing due to either monsoon rains or crossing streams etc and sleeping on the damp ground when on operations.”

8. The Commission’s first response was its decision of 25 June 1998 not to allow a review of the Appellant’s case to go forward to the VRB, and it provided to the Appellant the following “Statement of Reasons” dated 24 June 1998:

   “Statement of Reasons

   On 9 October 1995 the member lodged a claim for pension in respect of a number of conditions including back pain.

   On 2 February (presumably 1996) a Delegate of the Repatriation Commission determined that back pain was not war-caused.

   On 13 March 1996 the veteran lodged an application to the Veterans’ Review Board for a review of the Delegate’s decision.

   As a result of additional information received on behalf of the veteran, from Dr Sahukar the correct diagnoses for the veteran’s back pain are intervertebral disc degeneration C5-6 and C6-7, and L3-4 and L4-5 lumbar intervertebral disc lesion. The evidence from Dr Sahukar indicates the veteran had back ache prior to going to Vietnam and there was no definite incident of accident while on active service. There is no evidence to relate back problems to service.

   I have therefore decided to review the Delegate’s decision of 2 February 1996, amend the disability determined to be back pain and determine that the amended disabilities intervertebral disc degeneration C5-6 and C6-7, and L3-4 and L4-5 lumbar intervertebral disc lesion are not war-caused within the meaning of Section 9 of the Veterans’ Entitlements Act.”

9. The Report of Dr Aspi K Sahukar bearing date 1 May 1998, referred to in the Commission’s above Statement of Reasons contained the following inter alia:

   “Thank you for asking me to see Brian Rickaby for the Department of Veterans’ Affairs regarding Mr Rickaby complaining about back pain.

   Brian is married with two children, the youngest is twenty two years old and married. Brian has been working as a part time builder doing mostly carpentry work. He works as a contractor three days a week and is very selective in what type of work he does because of the constant pain in his neck and back.

   Brian was in the Infantry in Vietnam for two years and had malaria three times. He suffered from back ache on and off while he was in active service but he does not contribute any definite incident of accident while on active service.

   When Brian was training in Singleton before he went to Vietnam he was having back ache on and off but never seriously complained to a medical officer in the army although he was having certain discomfort.

   Present complaint: Mr Rickaby has been complaining of back ache in the lower back with pain referred into the sacroiliac joint. Recently the pain in the groin and in his right hip are definitely getting worse. The pain in the back is aggravated on exertion, bending too long or trying to do any heavy work. Mr Rickaby has also got pain and stiffness in his neck and referred pain going into his right shoulder. Both the pain in his neck and in his back have been going on for a few years but since the beginning of this year the pain is definitely getting worse. He sees Dr Whitmill from time to time for Analgesics. He takes Panadol, two to four a day. He plays no particular sports but loves fishing.

   …

   I studied the x-ray of the cervical spine that was done at Parkes Hospital and I also studied the CAT scan of the cervical spine and the x-ray and the CAT scan show that Mr Rickaby has got gross degenerative changes with narrowing of the intervertebral disc space between C5/C6 C6/C7 with narrowing of the intervertebral disc space and also intervertebral foramina.

   X-ray and CAT scan of the lumbar spine show degenerative changes in the posterior vertebral joint with minimal narrowing of the intervertebral disc space between L3/L4 L4/L5. There is no congenital deformity seen.

   Comments and Prognosis: Mr Rickaby no doubt suffers from gross osteoarthritis in his neck much more than in his back. Because of the arthritic changes and narrowing he is getting nerve root pain in his right shoulder. The pain in his groin is due to the adductor muscles getting very sore. Clinically there is no evidence of any osteoarthritis or restriction in the movements of the hip. It is only that the movements are painful.

   …

   Prognosis: As far as osteoarthritis in his neck is concerned it is likely to get worse with age. Provided he follows certain exercises for the neck and back and avoids straining he will be able to continue doing a building job for at least another five to six years. It is only a question of time when the symptoms in his back are going to get worse and so also will the pain in his right hip. Only time will tell.”

   The references to neck pain appearing in the fourth and seventh paragraphs extracted above should be noted in particular.

10. The reference appearing in the Commission ‘s “Statement of Reasons” to “a number of conditions including back pain” is to the disabilities the subject of the original claim of October 1995 referred to in [6] above, namely:

    Poor eyesight
    Bilateral Sensorincural hearing loss
    Back pain
    Irritable bowel syndrome
    Post traumatic stress disorder/alcohol abuse with somatic symptoms
    Malaria
    Chronic bronchitis
    Haemorrhoids
    Contact dermatitis

    In the events which happened, the only claims rejected by the Commission, apart from that relating to back pain with which these Reasons for Judgment are concerned, were those made for poor eyesight and haemorrhoids.

    Relevant provisions of the Veteran Entitlements Act

11. Section 9 of the Act defines “war-caused injuries”, sub-section (1) whereof (so far as is here relevant) reads as follows:

    “9.      War-caused injuries

    (1)Subject to this section, for the purposes of this act, an injury suffered by a veteran shall be taken to be a war-caused injury… if:

    (a)the injury suffered… by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

    (b)the injury suffered… by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

    …

    (e)the injury suffered… by the veteran:

    (i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

    (ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

    and, in the opinion of the Commission, the injury… was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury…;

    but not otherwise.”

    Section 7 of the Act defines “eligible war service”, paragraph (a) of sub-section (1) whereof reading as follows:

    “a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.”

    Section 6C define various categories of “operational service” in relation to post World War 2 service in operational areas, as to which see again [3] above. There has been no dispute that the second and third incidents referred to in [4] above occurred in circumstances of “eligible war service”, for the reason that at the times thereof, the Appellant was rendering “operational service” in Vietnam (Southern Zone) (see Column 1 of Schedule 2 to the Act already picked up in [3] above).

1. The standard of proof which the Appellant was required to satisfy for the purposes of his claims the subject of these proceedings is that set out in s 120(1) and (3) of the Act, reading as follows:

   “120    Standard of proof

   (1)Where a claim under Part II for a pension in respect of the incapacity from injury… relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury… unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

   Note:   This subsection is affected by section 120A.

   …

   (3)In applying subsection (1)… in respect of the incapacity of a person from injury… related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

   (a)that the injury was a war-caused injury …;

   …

   … if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury… with the circumstances of the particular service rendered by the person.”

2. As anticipated by the note to s 120(1) above, for the purpose of arriving at an opinion pursuant to s 120(3) of the Act whether certain material raises a reasonable hypothesis connecting an injury with the circumstances of the service rendered by a veteran, the Commission is required by s 120A of the Act to have regard to an applicable Statement of Principles (“SoP”) for the time being determined under s 196B of the Act, sub-section (1) thereof stipulating that s 120A applies to claims made on or after 1 June 1994, which is of course the case here (see [6] above). I set out below the text to s 120A(3):

   “(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person… with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

   (a)a Statement of Principles determined under subsection 196B(2) or (11);

   …

   that upholds the hypothesis.”

   The abovementioned s 196B(2) is in the following terms:

   “(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

   (a)operational service rendered by veterans; or

   …

   the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

   (b)the factors that must as a minimum exist; and

   (c)which of those factors must be related to service rendered by a person;

   before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.”

   The circumstances in which ss 120A and 196B came to be enacted in 1994, including the Minister’s speech to the Parliament, are conveniently summarised by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261 at 268-270 (first instance).

3. The Appellant did not accept the Commission’s response of 25 June 1998, and the adverse decisions in relation to poor eyesight and back pain came before the VRB for review. For that purpose, the Appellant’s Advocate provided to the VRB a report from Dr M Geoffrey Miller, Consultant Physician of 10 December 1998. It was a comprehensive report comprising nearly eight pages, and was made against the context of Dr Sahukar’s prior Report extracted in [9] above. Under the heading “Rejected Disabilities of Cervical and Lumbar Spondylosis”, the following appeared:

   “REJECTED DISABILITIES OF CERVICAL AND LUMBAR SPONDYLOSIS

   1.Cervical Spondylosis: I refer to the report of Dr. Sahukar, dated 1 May 1998

   Mr Rickaby told me that this is a significant symptom which interferes with his work. He has pain on moving his neck and this is one reason why he does not drive. The pain radiates to his right shoulder and he is troubled by crepitus on moving his head.

   He first developed symptoms relating to his neck when he was undergoing battle training prior to going to Vietnam. He was required to climb an obstacle course made of logs three feet apart set at an angle of 45^o and then jump off the other side. He slipped between the third and fourth log, landing first on his lumbar spine and then his shoulders and fell to the ground. He attended a regimental aid post and was given light duties. He told me that he had bruising over his buttocks and his shoulders and remained with a sore back and neck for weeks.

   The condition was exacerbated in South Vietnam when he was playing rugby football and was deliberately struck in the face by the knee of an opposing player whilst he was in the front rank of the scrum. His nose was broken and his head was forced backwards. His neck was sore for two to three weeks afterwards, he told me it was made worse because the same thing happened the next week and he subsequently gave up playing rugby football. I note that there is a reference on page 5 to the reduction of fractured nose bones in October 1968. Mr Rickaby told me that his neck remained sore intermittently but settled down after about eighteen months. The pain in his neck recurred about fifteen years ago and is steadily getting worse.

   Dr Whitmill sent down x-rays of Mr Rickaby’s cervical spine dated 21 April 1998 and I was able to view these pictures. The radiologist’s report states that “there is spondylosis with disc narrowing and anterior osteophytes at C5/C6 and C6/C7 levels. There is no evidence of instability. Moderate narrowing of the right C3/C4 and C4/C5 neural canals and of the left C6/C7 neural canals is present”.

   The CT scan of the cervical spine reveals osteoarthritic changes are present in the lower cervical region and marked vertebral body marginal osteophyte formation is present at the C5/6 and C6/7 levels. There is left foraminal stenosis at C3 and C4 and bilateral foraminal stenosis at C5 and C6.

   “Slight dorsal bulging of the C3, C4 and C5 discs is mildly indenting the thecal sac but is causing no true spinal stenosis.

   “Conclusions: Small joint osteoarthritis. Foraminal stenoses.”

   2.        Lumbar Spondylosis: This presents as lumbar pain on bending or heavy lifting. He has no pain suggestive of any nerve root pressure. I was able to view the x-rays of his lumber spine dated 21 April 1998. There is some osteophytic formation at the L3 and L4 levels but no gross abnormality. A CT scan of the lumbar spine dated 24 April 1998 reveals ‘The L3/4 and L5/S1 discs are normal and there is no spinal or foraminal stenosis at these levels.

   “There is diffuse circumferential bulging of the L4/5 disc but with no associated stenoses.”

   “Conclusions: Early degenerative disc disease at L4/5.”

   Mr Rickaby told me that his main problem at work is his neck, his lumbar spine prevents him from doing any heavy lifting or bending but he has so organised his work that he is not required to do this.”

   After then recording what he found on clinical examination, Dr Miller concluded as follows under the respective headings “Assessment For Intermediate Rate Pension” and “Relationship Between Cervical Spondylosis and War Service”:

   “ASSESSMENT FOR INTERMEDIATE RATE PENSION

   Mr Rickaby has accepted disabilities attracting 100% of the general rate pension. His work capacity is restricted to between eight and twenty hours per week but his incapacity is due not only to his accepted disabilities but also to a severe cervical spondylosis. I do not consider that his lumbar spondylosis would prevent him from working as he is able to organise his work around this.

   RELATIONSHIP BETWEEN CERVICAL SPONYLOSIS AND WAR SERVICE

   Mr Rickaby injured his neck in the period prior to his operational service. At that time he satisfied the Statement of Principles for cervical spondylosis, fact 5(k) in that he suffered an injury to his lower cervical spine caused by a blow and within 24 hours there were acute symptoms and signs of pain, tenderness and altered mobility in that part of the spine. There was bruising and I consider that this injury satisfies the definition for trauma to the cervical spine.

   During war service he suffered two severe injuries when he was kneed in the face causing severe hyperextension of his neck. Apart from his injury to his nose, he suffered at least two to three weeks of pain and discomfort in the neck and I consider that he therefore satisfies factor 6 of instrument number 161 of 1996 for cervical spondylosis in that the injuries during his war service caused a material aggravation of his cervical spondylosis when the cervical spondylosis was contracted before his relevant service. In my opinion, therefore, there is a reasonable hypothesis that his war service aggravated his injury and his cervical spondylosis relates to war service.

   If Mr Rickaby’s cervical spondylosis is accepted, then I consider that he would be able to work more than eight but less than twenty hours per week as a result of his accepted disabilities alone.”

   It will be seen from the foregoing report of Dr Miller that he identified as material a certain “Statement of Principle”, namely Instrument 161 of 1996, which though doubtless very similar, was not one of those identified in these proceedings (see [16] below).

4. The VRB’s decision was made on 9 March 1999, nearly three years after the decision of the Commission the subject of the VRB review. The VRB noted that the description of the condition simply as “back pain”, as earlier used, had become formally amended to “Intervertebral Disc Degeneration C5-6 and C6-7 [and] Lumbar Intervertebral Disc Lesion L3-4 and L4-5”, that is to say, cervical spondylosis and lumbar spondylosis respectively. In relation to the Appellant’s complaint of “back pain”, the VRB affirmed the decision of the Commission to the effect that the same was not “war-caused”.

5. SoPs have been made after 1 June 1994 in relation to cervical spondylosis and lumbar spondylosis respectively. Those in evidence in the course of the appeal proceedings before me are as follows:

   Cervical Spondylosis:
   Instrument No. 101 of 1995    :          undated
   Instrument No. 330 of 1995    :          29 August 1995
   Instrument No. 354 of 1995    :          3 October 1995
   Instrument No. 21 of 1999     :          25 February 1999
   Lumbar Spondylosis              :
   Instrument No. 105 of 1995    :          undated
   Instrument No. 334 of 1995    :          29 August 1995
   Instrument No. 358 of 1995    :          3 October 1995
   Instrument No. 27 of 1999     :          25 February 1999.

   The VRB made its decision by reference to the respective SoPs which issued on 25 February 1999. The AAT however regarded as applicable, in relation to cervical spondylosis, Instrument 101 of 1995 as amended by Instruments 330 and 354 of 1995, and not Instrument No 21 of 1999, for the reason stated in [29] below, but found it unnecessary to address any issue arising under any SoP in relation to lumbar spondylosis “… because the medical evidence was that Mr Rickaby’s lumbar spondylosis does not affect his ability to work” (see in that regard Dr Miller’s report extracted in [14] above under the heading “Assessment For Intermediate Rate Pension”). Had the AAT not refrained from doing so, I would infer that it would have taken a similar view in favour of Instrument 105 of 1995 as amended by Instruments Nos 334 and 358 of 1995, to the exclusion of Instrument No 27 of 1999. In the light of the Full Federal Court’s decision in Repatriation Commission v Keeley (2000) 98 FCR 108, the view of the AAT as to the applicable SoPs concerning cervical spondylosis would be correct, though for present purposes there does not appear to be any material difference between what was addressed by the AAT in terms of the consolidated 1995 SoPs and what was addressed by the VRB by way of the 1999 SoP.

6. Reproduced below from paragraph 17 of the AAT decision are the provisions of SoP No 101 of 1995 relating to cervical spondylosis, as amended by No 330 of 1995 and 354 of 1995 (and as reproduced in the AAT decision):

   “1.Being of the view that there is sound medical-scientific evidence that indicates that cervical spondylosis and death from cervical spondylosis can be related to operational service rendered by veterans… the Repatriation Medial Authority determines, under subsection 196B(2) of the Veterans’ Entitlements Act 1986, that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cervical spondylosis or death from cervical spondylosis with the circumstances of that service are:

   …

   (fa)suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis; or

   …

   (h)suffering a trauma to the cervical spine before the clinical worsening of cervical spondylosis.

   2Subject to clause 3 (below) at least one of the factors set out in paragraphs 1(a) to 1(h) must be related to any service rendered by a person.

   3The factors set out in paragraphs 1(g) to 1(h) apply only where:

   (a)the person’s cervical spondylosis was contracted before a period, or part of a period, of service to which the factor is related; and

   (b)the relationship suggested between the cervical spondylosis and the particular service of a person is a relationship set out in paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act.

   4.For the purposes of this Statement of Principles:

   ‘trauma of the cervical spine’ means an injury to the cervical spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of the injury and treatment, such evidence may be considered;

   ….”

   It is appropriate here to foreshadow that the critical provisions of the above SoP, consolidated as explained above, are the above words of paragraph 4 “…and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs…”

7. The Commission conceded to the VRB the diagnosis for the Appellant’s back pain as that of intervertebral disc degeneration in relation to C5-6 and C6-7, and as that of lumbar intervertebral disc lesion in relation to L3-4 and L4-5, but the Commission argued against any fulfilment of the statutory requirement of “war-caused”. On page 7 of its decision, the VRB analysed the material before it on such issue in relation to cervical spondylosis as follows:

   “It is quite clear that Mr Rickaby suffered a number of injuries to his nose at least one of which caused a fracture and surgical procedure was necessary to undertake a nasal bone reduction.

   While the Board understands Mr Rickaby’s evidence and the submissions of Ms Buchanan and Dr Miller that cervical spondylosis existed prior to service in Vietnam and that this condition was then aggravated by the injuries to Mr Rickaby’s nose, the Board must consider such information in light of the available evidence and in terms of the Statement of Principles concerning cervical spondylosis, Instrument No. 31 of 1999.
   The definition of trauma to the cervical spine refers to a discrete injury to the Cervical Spine. The Board accepts that there was a discrete injury to Mr Rickaby’s nose, however, is concerned that there is no medical evidence indicating a discrete injury or trauma to the Cervical Spine as a result of the nose injury(ies). There is nothing reported on Mr Rickaby’s Final Medical Board Report indicating the presence of cervical spondylosis let alone injuries to the neck.”

   The above reference to the Appellant’s “Final Medical Board Report” is to that extracted in [5] above. The Board’s conclusion as to cervical spondylosis was thus dismissive of what appears in Dr Miller’s report set out in [14] above under the heading “Relationship between cervical spondylosis and war service”. Moreover the above reference to SoP Instrument No 31 of 1999 would appear to be an erroneous reference to Instrument No 21 of 1999 (see again [16] above).

8. The VRB was additionally unable to find evidence of a diagnosis of lumbar spondylosis of the spine occurring as a result of the Appellant’s injury when training in Singleton, pointing out that the Appellant’s so-called original claim for “back problems” did not refer to any injuries or traumas, but rather his having a sore back because of being required to sleep on hard wet ground and having to carry heavy kit bags (see [6] above). The VRB asserted support for such conclusion in relation to lumbar spondylosis from what appears in the third paragraph of Dr Sahukar’s report extracted in [9] above, and summarised its conclusion in relation to lumbar spondylosis as follows:

   “The Board noted that Mr Rickaby had lumbosacral problems associated with service prior to Vietnam as recorded in Mr Rickaby’s Final Medical Board Examination. The report arising out of the Final Medical Board Examination indicated that an Orthopaedic Surgeon had in fact examined Mr Rickaby in relation to his lumbosacral problems but found nothing abnormal apart from reporting that X-rays indicated a pre-existing condition of spina bifida which from time to time caused Mr Rickaby some pain.

   While in Vietnam, the Board accepts that Mr Rickaby suffered injuries to his nose as a result of incidents in two football matches and a fight. The difficulty for the Board is that while there is evidence of a broken nose and surgical nasal bone reduction, there is no evidence of a discrete injury to the lumbar spine as a result of a trauma as defined in the Statement of Principles concerning lumbar spondylosis, Instrument Number 29 of 1999.

   After the injuries sustained to Mr Rickaby’s nose in the football matches, he reports that he was placed on light duties where he was required to sweep and undertake cleaning duties. The Board does not consider that this type of duty is indicative of there being a discrete injury to the lumbar spine region. While there may have been signs of pain and tenderness, the evidence does not suggest that this can be referred to a discrete injury to Mr Rickaby’s Lumbar Spine.”

   The medical material placed before the AAT

9. The Appellant made application on 12 April 1999 to the AAT for review of the VRB’s said decision of 9 March 1999, simply upon the ground that “The decision is wrong”. In support of the application for review, the Appellant lodged an initial statement in writing of 10 August 1999 in the following terms:

   “I have had problems with my back and neck since a training accident in Singleton in 1967.
   I slipped and fell on an obstacle course and this resulted in bruising of my shoulders, lower back and buttocks.
   I saw the RAP and was put on light duties but I continued to have a sore and painful neck and back for some weeks.

   I believe my condition was made worse in Vietnam when I played rugby. While I was in the front row of a scrum a player from the other team struck me in the face with his knee, this forced my head back and broke my nose.
   The RAP put a heavy plaster dressing on my nose and my neck was sore for some weeks after.
   I played rugby the next week and was injured in the same manner so I did not play again. My neck remained sore and tender on and off for 16 to 18 months.
   I think it would be approx 15 years ago that the pain in my neck started to trouble me again and it seems to be getting worse.”

10. Thereafter on 6 June 2000, the Appellant lodged with the AAT a more comprehensive statement containing the following:

    “Treatment

    Neck condition

    31.I have pain in my neck from the first time I injured it in Singleton during training for Vietnam. During service, I rubbed my neck and took painkillers to relieve the pain in my neck.

    32.I have used deep heat cream on my neck on and off from the time of discharge. In the last fifteen years my neck condition has worsened. I use deep heat or a heated wheatbag most nights to ease the pain in my neck. I have taken panadol nearly every day for years to relieve the pain in my neck. I have also taken Panedeine Forte, Feldene, Baufen, Panamax, Naprosen, Dolobid for pain relief. I have had physiotherapy on my neck at Parkes Hospital on and off for about fifteen years.

    33.Since I stopped working, I have gone to physiotherapy an awful lot. The physiotherapist told me she can’t offer much help because my neck is in such bad condition.

    Back condition

    34.I had pain in my back from the first time I injured it during training at Singleton for Vietnam. During service I took painkillers for my back as needed. Carrying heavy packs during service in Vietnam most days made the pain in my back worse. I carried ammunition, machine gun rounds, 200 launcher, food of 3 days rations, water, 200 SLR rounds and a claymore mine. It weighed about 100 lbs.

    35.I have always worn a backbrace from the time I was discharged from the army. Since I left the army, I have never felt my back was any good. I have used deep heat cream and a heated wheatbag on my back on and off since I left the army. I went to a chiropractor about back pain a couple of times in Parkes but it didn’t do any good.”

1. The Appellant further tendered an internal report made originally to the Senior Medical Officer, Singleton Army Camp, Singleton, bearing date 5 May 1967, which was confined to lumbar pain as distinct from cervical pain in the following terms:

   “re Private Brian RICKABY – No. 2786150

   I examined this man in the Orthopaedic Clinic at Maitland yesterday. He complains of pain in the lower lumbar region of his back for the past 4 or 5 years. There was no history of any injury. This pain was been quite severe on occasions and he was treated in hospital on one occasion for 2 weeks with physiotherapy and ray treatment. It is aggravated by the cold. When it occurs it lasts 3-4 days. Occasionally it has radiated into the left buttock, but has never at any time been accompanied by parasthesia. There was nothing significant in the past history.

   On examination he had a full range of movement of his lumbar spine, and there was no deformity or muscle spasm present. Straight leg raising was free on both sides and there were no abnormal neurological signs in the lower limb. X-rays were taken of his lumbar and sacral spine and were normal apart from a spina bifida occulta of the first sacral region.

   These radiological findings occur in a not inconsiderable number of the general population and are usually symptomless. However, his complaints to me appear genuine and although I can find no clinical evidence of disability, if his complains continue, I think his usefulness to the army should be re-considered.”

   The reference to the congenital condition of spina bifida occulta is to that described in [7] above.

2. The Appellant provided additional medical reports relating to his cervical and lumbar spondylosis claims in relation to that of Dr Chapman’s 1967 report. One such additional report was provided by Dr Miller dated 9 November 1999, which supplemented his previous report of 10 December 1998 partly extracted in [14] above. This up-dated report referred to the circumstance that the Appellant had given up work completely as from 15 July 1999, his neck having further deteriorated. Dr Miller reported as follows in relation to the Appellant’s back pain:

   “REJECTED DISABILITY OF CERVICAL SPONDYLOSIS

   As I wrote in my report of 10 December 1998, Mr Rickaby suffered an injury to his neck when he was undergoing battle training prior to going to Vietnam, outside the period of eligible operational service. However the condition was exacerbated when he was playing rugby in South Vietnam. He was a forward in the scrum and was kneed in the face by an opposing forward. He remembers that he was on the outside of the front row and his head was flung violently backwards when his nose was broken. He attended the regimental aid post because of his fractured nose and nosebleed and, although aware that his neck was aching, he did not think to mention it to the doctor at the RAP and he was not asked about it because all the attention was being paid to his nasal fracture. He remembers that the neck was aching for one to two weeks afterwards. The same thing happened again in a scrum the next week, again attention was paid to his nose and he did not mention his neck. The neck continued aching and was sore and he decided to give up playing rugby football because of this and because of his injury to his nose. The condition has deteriorated over the years, currently he has problems moving his neck, he is unable to lie in bed with a pillow and has to lie flat, he has to move his whole trunk in order to look to one side or the other and he told me that his wife gets out of the car to guide him when is his backing the car.

   REJECTED DISABILITY OF LUMBAR SPONDYLOSIS

   This has not changed, it is not severe and he was able to organise his work by giving lifting jobs to his offsider or to his son who worked for him part-time.

   …

   RELATIONSHIP BETWEEN CERVICAL SPONDYLOSIS AND WAR SERVICE

   Mr Rickaby was suffering a pre-existing injury to his neck when he went to South Vietnam. In my opinion he suffered a discrete injury to his neck by traumatic hyperextension when he was kicked in the face in the scrum. This happened on two separate occasions and he gave up playing football as a result. In my opinion he satisfies the Statement of Principles for cervical spondylosis, instrument number 31 of 1999 and satisfies factor 5(s) in that he suffers a trauma to the cervical spine before the clinical worsening of his cervical spondylosis. In my opinion he satisfies the definition under factor 8 for trauma to the cervical spine in that he had discrete injury that caused the development, within 24 hours of the injury being sustained, he suffered acute symptoms and signs of pain and tenderness associated with altered range of movement of the cervical spine. These acute symptoms lasted for at least a week and medical attention was not sought because of the much more serious facture of the nose. In my opinion there is a reasonable hypothesis linking his cervical spondylosis to his service in South Vietnam.

   …

   SUMMARY

   Mr Rickaby injured his neck outside the period of operational service and had two separate discrete injuries to his cervical spine whilst in South Vietnam. In my opinion he satisfies the Statement of Principles for cervical spondylosis and I consider that there is a reasonable hypothesis that his cervical spondylosis relates to war service.”

   Once again, Dr Miller referred to SoP Instrument 31 of 1999, in relation to which I repeat my observation made in [18] above.

3. Apart from Dr Miller’s additional report, the Appellant provided an initial and thereafter supplementary report by Professor Sambrook, a Professor of Rheumatology at Royal North Shore Hospital. His initial report of 15 December 1998 included the following, which mainly related to his lumbar as distinct from cervical conditions:

   “Mr Rickaby told me that he first became aware of back pain whilst undergoing his basic training at Singleton and indeed, was admitted to hospital for treatment of this at that time. This history is confirmed by the report of Dr David Chapman, an orthopaedic surgeon, dated 5 May 1967, in which he notes that Mr Rickaby was treated in hospital on one occasion for two weeks for low back pain although in that report Dr Chapman indicated the history may have gone back four or five years prior to service.

   Mr Rickaby told me that during his service period in South Vietnam, he was required to go on patrol about every week for a duration of between three and six days carrying a very heavy pack as well as ammunition and was troubled by quite severe back pain during this service period. Mr Rickaby told me this was not reported during this time because he felt the pain would settle, there was a culture in the Army to only report very severe injuries, and he was unclear whether it was appropriate to report this as a National Conscript.

   Following discharge from the Army, the pain did settle somewhat although he was aware of a continuing low grade discomfort in his low back region thereafter. However, over the last fifteen years or so this has become increasingly symptomatic and he is currently complaining of quite severe pain which he described as constant in duration, of a sharp nature but without any radiation beyond his buttock region. Over the last ten years he has also become aware of pain in the neck which is also constant and sharp in nature but does not radiate into any other regions.

   Apart from the requirement to carry very heavy packs whilst on patrol during this service in South Vietnam, Mr Rickaby is unaware of any specific injuries to his neck or back over that time.”

   Thereafter under the heading “Relationship to Service”, Professor Sambrook concluded in this first report as follows:

   “Relationship to Service

   I have reviewed Instrument No. 53 of 1998, for lumbar spondylosis and I do not think he satisfies criteria in regard to heavy physical activity by virtue of his service period as his exposure in South Vietnam was of too short a duration especially in comparison to his work as a builder. However, it is worth considering the issues of malalignment or permanent ligamentous instability in regard to his spina bifida. Although this is not an infrequent occurrence in the general population, as noted by Dr Chapman, it does appear to be frequently associated with symptoms and may represent a form of malalignment due to joint dysplasia. Whilst there is no doubt that the degree of contribution of his building trade to his lumbar spine may seem relatively greater than to his service period in South Vietnam, it is quite clear that he did have symptoms prior to his service and complained of significant pain exacerbated apparently by his requirement to carry heavy packs on the background of his spina bifida, so it is not unreasonable to argue that there may have been aggravation of malalignment by his service in South Vietnam. Although smoking has been listed as a risk factor for intervertebral disc prolapse, it is not a risk factor in the Statement of Principles for disc degeneration or per se or lumber spondylosis.

   In regard to the cervical spine the history there is of a much more recent onset with no documentation prior to symptoms before his service period and given his occupation, I think it is likely that this should be attributed purely to his subsequent occupation.”

   It is therefore to be seen that the conclusions of Professor Sambrook were related mainly to lumbar spondylosis. His reference to SoP Instrument No 53 of 1998 is not to one of those relating to lumbar spondylosis particularised in [16] above, which Instrument was not in evidence before me. His last and briefer conclusion up to this point, set out in the final paragraph extracted above, was somewhat ambiguous, given his initial focus only upon the time “before his service period”.

4. Professor Sambrook’s supplementary report of 30 September 1999 was in the following more decisive terms:

   “In regard to the training injury, this appears to be the same history referred to in the third paragraph of my report on page two. I would agree that this should be regarded as the clinical onset of his lumbar spondylosis. Although my notes do not indicate he had neck pain at this time, I note that the history provided by Mr Rickaby in his statement of 10 August 1999 and that obtained by Dr Miller in his report of 10 December 1998 both refer to cervical pain following the training injury and if those histories are accepted as being more accurate, it is reasonable to date the clinical onset of his cervical spondylosis from that time.

   In these circumstances, there is a reasonable hypothesis that the football injuries described by Mr Rickaby contributed to the clinical onset of cervical spondylosis and are thus service related by virtue of S.O.P. 105/1995.

   However, I do not think there is any evidence that the lumbar spondylosis was aggravated by the football injury described by Mr Rickaby.”

   Professor Sambrook’s reference to SoP Instrument No 105/1995, having regard to the context in which the same was made, was obviously intended to refer to Instrument No. 101 of 1995 concerning cervical spondylosis (see again [16] above).

5. A report was obtained by the Commonwealth Department of Veterans’ Affairs from Dr Mark Burns, Occupational Physician, bearing date 30 September 1999. This report covered the entire spectrum of the Appellant’s conditions, inclusive of “L3/4 and L4/5 Lumbar Intervertebral Disc Regeneration” and “Intervertebral Disc Degeneration C5/6 and C6/7” (see the earlier reference thereto in [15] above), and concluded as follows:

   “With respect to employment, I believe Mr Rickaby’s major problems are his neck, his low back, and also to a lesser extent his post traumatic stress disorder. Of the three I believe his cervical spine symptoms are by far the most significant.

   On his presentation today I do not believe that Mr Rickaby would currently be capable of working even eight hours per week predominantly due to his cervical spine problems. He has a significant decrease in range of motion and was very, very tender. Certainly appeared to be in genuine pain… I believe that his cervical disc degeneration should be seen as permanent and would stop him from returning to the workforce.

   I believe that a mixture of both his accepted and non-accepted disabilities are more of a problem than his accepted disabilities.”

   Subsequently by a supplementary report of 5 November 1999, Dr Burns confirmed the foregoing opinion. The material point made by Dr Burns as to the Appellant’s cervical disc degeneration preventing the Appellant returning to the workforce is of some assistance in establishing consistency of the hypothesis advanced by the Appellant with the relevant SoP.

   The reasoning for and the decision of 28 November of the AAT

6. The decision of the AAT was given on 28 November 2000, and extended over 37 pages, and the same comprehensively restated the material placed before it, and additionally referred in some detail to the evidence of the Appellant and of the witnesses who gave oral as well as written evidence to the AAT. The AAT acknowledged that it was required to apply what it described as the “Deledio process”, that is to say, the four steps enunciated by a Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-8 as follows:

   “At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present (that is, one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person as follows:

   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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

   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.”

   The reference above to the “authority” is of course to the Repatriation Medical Authority.

7. As to the abovementioned first step set out in Deledio extracted material above, the AAT said as follows:

   “122The acceptance of cervical spondylosis as an accepted disability does require that the Tribunal applies the Deledio process. There is a hypothesis advanced which is in two parts.

   123.First, it is argued that the Applicant sustained an injury to his cervical spine in the falling accident he had during training at Singleton. This was aggravated by the incident in Vietnam in which the Applicant broke his nose. This will be called “hypothesis number one”. The Tribunal in this regard finds that there was only nasal fracture in Vietnam. This could, of course, still be sufficient to found an argument for an aggravation. There would be a service caused disability stemming from operational service.

   124.Second, and in the alternative, the argument is that there was a trauma to the cervical spine caused by the events leading to the nasal fracture during the veteran’s operational service in Vietnam. This will be called “hypothesis number two”.

   125.The first step in the Deledio case (supra) is satisfied.”

   There were of course two alleged nasal fractures asserted by the Appellant, being the second and third incidents described in [4] above. The Appellant submits that the AAT thereby erred in law, because of a failure to consider the second nasal injury which the Appellant claimed to have occurred in Vietnam. It is apparent that the AAT was aware of the two nasal fracture incidents which occurred in Vietnam (see for instance paragraph 34 of the AAT decision), and it may be reasonably argued that wherever the AAT used the expression “nasal fracture”, it thereby intended to refer to the two incidents of nasal fracture, given that each involved the same site of fracture. Any such argument must however confront the less ambiguous language of singularity appearing in the critical conclusion extracted in [32] below.

8. The AAT then proceeded to address what it described as the second step in Deledio, and found the same also to be satisfied; I set out below its finding in that regard:

   “126.The second step is to identify whether there is or was a relevant SoP in force at the relevant date. From the Federal Court decision in Keeley v Repatriation Commission (supra) the appropriate date is the date when the Respondent made the primary decision, ie 2 February 1996. On that date the relevant SoPs concerning cervical spondylosis were SoP no 101 of 1995 (8 March 1995) as amended by SoP no 330 of 1995 (29 August 1995) and SoP no 354 of 1995 (3 October 1995).”

   I have already referred to the correctness of that finding in [16] above.

9. The AAT next proceeded to address what it described as the third step in Deledio, namely “… to see whether the hypotheses fit the template provided by the applicable SoPs”; five so-called “central matters” were thereupon set out, the first four whereof were found by the AAT to have been satisfied by such hypotheses numbered one and two. The same are set out below for ease of reference:

   “1.Clause 1(fa) of SoP no 101 of 1995, as amended by SoP no 330 of 1995 and SoP no 354 of 1995, requires that the veteran must have suffered a trauma to the cervical spine before the clinical onset of cervical spondylosis. Hypothesis number two is consistent with this clause.

   2.Clause 1(h) of the same SoP, as an alternative, requires that the veteran must have suffered a trauma to the cervical spine before the clinical worsening of cervical spondylosis. Hypothesis number one would be consistent with this clause.

   3.Clause 2 of the same SoP requires that the factor that applies in clause 1 must be related to any service rendered by the veteran. Both hypotheses are consistent with this clause.

   4.Clause 3 of the same SoP requires that the factor in clause 1(h) can apply only where the cervical spondylosis was contracted before a period, or part of a period, of service to which the factor is related, and the relationship between the condition and the veteran’s particular service is a relationship set out in various provisions of the Act, s 9(1)(e) being the relevant provision here. Hypothesis number one would be consistent with this clause.”

10. The AAT thereafter focused upon the definition of “trauma of the cervical spine” contained in Clause 4 of the applicable SoP structure (extracted in [17] above) and concluded upon the following three initial elements thereof in favour of the Appellant as follows:

    (i)        “an injury to the cervical spine”

    The AAT stated that it was “prepared to accept” that there had been an injury to the Appellant’s cervical spine, such situation having been attested by Dr Miller, and “subject to certain assumptions”, by Professor Sambrook;

    (ii)“caused by the force of an extraneous physical or mechanical agent”

    The AAT ruled that “hypothesis number one” (see paragraph 123 of the AAT decision extracted in [28] above) would be satisfied by the fall at Singleton, pointing out that “… the Applicant says that he went through the middle of four horizontal rails when he fell on them. He fell onto his shoulder and his neck and back onto the ground”, and further that “hypothesis number two” (see paragraph 124 of the AAT decision extracted in [28] above) would be satisfied “by the impact caused by the knee of an opposing player striking Mr Rickaby in the face”;

    (iii)“cause the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the joint”

    The AAT ruled that in the case of “hypothesis number one”, the same was satisfied by Mr Rickaby’s oral testimony before the AAT that he “got shocking pains through my neck and my buttocks of course and my back as well and real pains at the time…”; the AAT further found that in the case of hypothesis number two, “Mr Rickaby was taken promptly to hospital and given a nose reduction. His broken nose was immediately obvious. Any injury to the cervical spine would not have been obvious on Mr Rickaby’s own evidence in cross-examination” and concluded that “The Tribunal regards this requirement in the SoP as satisfied”.

1. However, it was in relation to the next and final element of the SoP here relevant that the AAT found the Appellant’s evidence to have fallen short of the mark, namely:

   “…and where such acute symptoms and signs last for a period of at least one week immediately after the injury has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of the injury and treatment, such evidence may be considered.”

   There was of course no medical intervention in relation to any injury or injuries to the Appellant's cervical spine, so that the critical part of the text of the SoP in relation to which the AAT found the Appellant to have fallen short was simply “and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs…”. It is necessary to set out below the full text of the AAT’s reasons why the foregoing element of the SoP template as to continuation of symptoms and signs for at least one week after injury was not satisfied by the hypotheses, being the critical reasons furnished by the AAT after making the findings in favour of the Appellant set out in [31] above:

   “The signs must last for at least a week immediately after the injury occurs unless there is medical intervention. Examples of medical intervention in the SoP refer to splinting, corticosteroid injection or surgery. In relation to hypothesis number one, T3 at folio 12 (ie the Appellant’s Army Medical Board report of 6 January 1969 contained within his Record of Service) says that Mr Rickaby had lumbo-sacral strain after his fall at Singleton. He was seen by Dr Chapman, an orthopaedic surgeon, who found nothing abnormal. He clearly received no medical intervention along the lines of splinting, corticosteroid injections or surgery. In addition, there was no cervical spinal damage recorded. Mr Rickaby said in evidence (transcript, page 11) that he was in Maitland Hospital for only two days where he recalls they gave him physiotherapy and pain killers before returning him to his unit on light duties. The Tribunal finds that this injury was insufficient to constitute a trauma to the cervical spine under the SoP. The Tribunal accepts the Respondent’s argument that the type of trauma defined in the SoP is intended to be severe. The indications just listed from the evidence indicate that the Singleton injury was not sufficiently serious. Hypothesis number one does not, therefore, satisfy the SoP. Under the Deledio principles, therefore, it is not a reasonable hypothesis. The trauma in Vietnam that is the foundation of hypothesis number two needs now to be considered. There was medical intervention for Mr Rickaby’s fractured nose. However, there was no apparent medical intervention on the Applicant’s own evidence, for any cervical spine injury. The signs of any cervical spine injury must therefore have lasted for at least a week. The Applicant says that they did. Indeed, they lasted a great deal longer. In brief he argues that they never went away. They reduced with time but re-emerged as more serious in the past 10-15 years. The Respondent argues that, if they were present at all, they were not severe in the first week after the nasal trauma. The Applicant was hospitalised for only a day or so. He was given only pain killers, apparently for his nasal problem. He was able to look after himself, move around, sweep and clean, and play football by the next week. He was transferred soon after and was back on patrol duty within a few weeks of the injury. Perhaps most powerfully the Respondent argued that there is no evidence that the Applicant ever mentioned his cervical spine problem to anyone before he raised it with orthopaedic surgeon, Dr Sahukar (T19) on or about 1 May 1998. It did not appear in any army or medical records, or in the Applicant’s 1995 claim for a disability pension (T5). The Tribunal is not satisfied that the hypothesis raised in hypothesis number two contains a factor required by the SoP. There was not a trauma to the cervical spine as described in the SoP.”

2. In the result, the AAT found it unnecessary to consider the fourth element in Deledio, namely whether the Tribunal was satisfied beyond reasonable doubt that the disability was not war-caused. The Appellant submits however that on true analysis, the process of reasoning set out in [32] above in relation to the cervical spondylosis issue constituted in reality a confusion or merger of steps 3 and 4 of the so-called Deledio process set out in [27] above, being a submission upon which the Respondent joins issue.

3. The Appellant’s case in relation to the condition of lumbar spondylosis was dismissed by the AAT for the following brief reasons:

   “…There was no argument as regards this condition. This was because the medical evidence was that Mr Rickaby’s lumbar spondylosis does not affect his ability to work. Mr Rickaby’s rate of pension is already 100 per cent of the general rate. To qualify for the intermediate or special rate the Tribunal must reach a state of reasonable satisfaction that he is hampered in obtaining or continuing remunerative employment because of his accepted conditions. Acceptance of lumbar spondylosis as a war-caused condition would not assist him in this.”

   Legal analysis in relation to the ATO’s adverse conclusion on cervical spondylosis

4. By commencing the process of analysis extracted in [32] above with that part of the applicable SoP comprising “and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs…”, the statutory obligation conferred upon the AAT pursuant to s 120(1) and s 120(3) required that the AAT determine whether any of the material placed before it pointed to and satisfied such requirement of the template. As the Applicant rightly submitted, “Arguments put by the Respondent as to material contrary to the hypothesis are not relevant at that stage. Nor is contrary evidence put in the balance. The material is to be considered as a set of claims, not as a set of established facts. Further, the claims are to be distinguished from the evidence that supports them. No question of fact finding was to arise at that stage”. The qualification to all that would only have been if “The hypothesis… is contrary to known scientific facts or is obviously fanciful or untenable”. (see Byrnes below).

5. The Appellant’s foregoing submission requires a consideration of the operation of the newly introduced s 120A of the Act, and sub-section (3) thereof in particular, in relation to the pre-existing s 120, and sub-section (3) thereof in particular, in the light of the absence of any alteration made then or thereafter to s 120. Such statutory provisions have already been extracted in [12-13] above. Prior to the 1994 amendments being effected as there explained, the High Court had expressed certain conclusions upon the operation of s 120(3). In Bushell v Repatriation Commission (1992) 175 CLR 408, the joint judgment of Mason CJ, Deane and McHugh JJ stated as follows (at 414-415):

   “The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.

   …

   Indeed the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connection between the incapacity or death and the service of the veteran. But it is vital that the Commission keep in mind that the hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.”

   And subsequently in Byrnes v Repatriation Commission (1993) 177 CLR 564, the joint judgment of Mason CJ, Gaudron and McHugh JJ, after referring to the above passage in Bushell, continued as follows (at 569-570):

   “The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell (7), Mason CJ, Deane and McHugh JJ said:

   “[A] hypothesis cannot be reasonable if it is ‘contrary to proved scientific facts or to the known phenomena of nature (8)’. Nor can it be reasonable if it is ‘obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous’ (9).”

   In some cases, the hypothesis may assume the occurrence of existence of a “fact”. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant’s hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered.

   Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved (10), either by proof beyond reasonable doubt that a fact or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis (11).”

   The last paragraph cited from Brynes explains the evidentiary advantage conferred upon veterans by this beneficial legislation.

6. Consequently what the AAT was required to address, in conformity with the third step enunciated in Deledio (see [27] above) (Full Court decision in Deledio having been handed down of course after the 1994 amendments were in place), was the issue whether the material placed before it pointed in favour of some fact or facts which supported the hypothesis advanced by the Appellant of connection of the Appellant’s cervical spondylosis to the operational service rendered by the Appellant in Vietnam. At first instance in Deledio (see [15] above), Heerey J (whose judgment was upheld by the Full Court) had earlier provided some useful practical guidance as to the implications of the third step, as follows (at 273-275):

   (i)        “No question of proof or disproof arises at this stage”;

   (ii)“…the new regime has to be given an operation consistent with s 120(1) and s 120(3) as expounded by the High Court in Bushell and Byrnes”;

   (iii)“…the hypothesis has to be consistent with the SoP”;

   (iv)“…the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran’s case… Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact”.

   (v)“The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point”.

   The Full Court’s decision in Deledio was consistent with the foregoing (see again [27] above). What was not permissible at stage 3 of the statutory process as described by the Full Court was the reaching of conclusions, a hypothesis being no more than a supposition or conjectural explanation of an ultimate fact: Repatriation Commission v Stares (1996) 41 ALD 212 at 217.

7. Returning to the critical passage in the AAT decision set out in [32] above, the question therefore arises as to whether a hypothesis was raised by the Appellant from what was placed before the AAT to the effect that the “acute symptoms and signs [did] last for a period of at least one week immediately after the injury occur[red]”. Put another way, to cite the illustrations used by Heerey J at first instance in Deledio, did the facts raised by the Appellant directly by his own testimony, and indirectly through what may be found in the evidence of medical practitioners placed before the AAT (including that material earlier put before the Commission and the VRB as well, since the same was also of course placed before the AAT), give rise to a reasonable hypothesis consistent with the SoP, irrespective of whether or not the same proved further facts in issue going to compliance with the template postulated by the SoP. Or to adopt the formula postulated in Bushell set out in [36] above, did the material put before the AAT point to some fact or facts which reasonably supported the hypothesis propounded by the Appellant, on the assumption that such material was true?

8. The testimony of the Appellant placed before the AAT in relation to the Singleton and Vietnam incidents included the following:

   (i)the initial statement in writing of the Appellant of 10 August 1997 set out in [20] above; I refer in particular to the following in relation to the Singleton incident:

   “I saw the RAP and was put on light duties but I continued to have a sore and painful neck and back for some weeks.”

   (ii)the more comprehensive statement in writing of the Appellant of 6 June 2000 set out in [21] above, containing the following in relation to both the Singleton and Vietnam incidents:

   “I have pain in my neck from the first time I injured it in Singleton during training for Vietnam. During service, I rubbed my neck and took painkillers to relieve the pain.”

   (iii)The evidence in chief of the Appellant given to the AAT in relation to the Singleton incident appearing on pages 10 to 13 of the transcript, and in particular the following, which appears on pages 12 and 13 thereof:

   “How long did you experience that pain for? The pain was severe for – the real pain was severe for a week, a week and a half to two weeks.”

   “How was your neck when you touched it in that two weeks? Very sore.”

   (iv)The further evidence in chief of the Appellant given to the AAT in relation to the Vietnam incident appearing on pages 14 to 17 of the transcript, and in particular the following:

   “The blood run out of my nose and there was just pain in my neck again, you know, just severe pain….”

   “I would have took them (ie Panadol) for a week or so.”

   “…it was the movement of my head, that’s where the pain come after that you know, moving up down, from side to side, that’s where the pain was in it then after that as well.”

   “… and it is just you know painful as well through into my neck.”

   “Well them symptoms were there for the week then I got hit again the next week and so it was an ongoing thing there for a while.”

   “Panadols, the pain, went all back through again. So I never played it (ie rugby) again, I thought that will do me.”

   “The symptoms, just the agony and the pain in my neck really and the movement of it.”

   “I think the second time was a touch worse.”

   “More tenderer, like after the second time.”

   “It was about a fortnight later” (ie when the Appellant resumed “full duties”).

9. It is unnecessary to extract from the cross-examination of the Appellant as well. It suffices to say that he did not withdraw or contradict any of the foregoing evidence in chief. He agreed that there was no visible bruising to his neck occasioned by the Vietnam incident or incidents, but by so doing the Appellant did not thereby necessarily contradict or modify any of his evidence in chief. Most of the cross-examination was directed to the absence of documentary material recording the Appellant’s complaints of soreness etc the subject of his evidence in chief.

10. Apart from the absence of reference in the AAT’s reasons for decision to the testimony of the Appellant exemplified in [39] above, such reasons also made no explicit reference to the following medical material which was placed before the AAT:

    (i)Paragraph 2 of Dr Miller’s report of 10 December 1998, in so far as the same refers, in the context of the Singleton incident, to the Appellant having “…remained with a sore back and neck for weeks” (see [11] above).

    (ii)Paragraph 3 of Dr Miller’s said report, in so far as the same refers in the context of the Vietnam incidents to “This condition was exacerbated in South Vietnam… His nose was broken and his head forced backwards. His neck was sore for two to three weeks… his neck remained sore intermittently but settled down after about eighteen months. The pain in his neck recurred after fifteen years ago and is steadily getting worse.”

    (iii)What appears by way of concluding opinions in Dr Miller’s above report under the headings “Relationship Between Cervical Spondylosis and War Service” and “Summary” in relation to both the Singleton and Vietnam incidents.

    (iv)What appears in Dr Miller’s supplementary report of 9 November 1999 set out in [23] above under the heading “Rejected Disability of Cervical Spondylosis” and “Summary”.

    (v)What also appears in Professor Sambrook’s supplementary report set out in [25] above, and in particular the second paragraph thereof reading as follows:

    “In these circumstances, there is a reasonable hypothesis that the football injuries described by Mr Rickaby contributed to the clinical onset of cervical spondylosis and are thus service related by virtue of S.O.P. 105.1995”

    (vi)Professor Sambrook’s oral testimony at transcript pages 36.36 as follows:

    “Professor Sambrook, in your opinion how would you define acute symptoms medically?---Well, it’s an issue that has vexed me in recent times in doing these reports. Medically, acute normally is contrasted with chronic and therefore has temporal elements but having been asked this several times and looking up the definition in a dictionary and also thinking about it, I think acute goes to not only temporal but also some degree of severity. So an acute injury ought to be something that comes on fairly quickly but probably also couldn’t be trivial. So if you just lightly grazed your toe I wouldn’t necessarily call that an acute injury. I think there ought to be some degree of severity but also time. So that’s my understanding of acute.

    In your opinion did Mr Rickaby have acute symptoms following either of the football injuries?---Well, if you accept the history as outlined, then he would satisfy that in that he had the rapid onset of the symptoms and he was ill disposed as a consequence of that and so there was some degree of severity. Certainly a force sufficient to break the nose would also be sufficient to cause hyperextension of the cervical spine.”

    Some of the expert medical testimony cited above does not of course refer explicitly to the Appellant’s alleged symptoms and signs having lasted for at least one week immediately after each injury occurred, as required by the SoP, but if the totality of the testimony cited in [39] and [41] be read as a whole, the same in my opinion did support or was consistent with the required hypothesis concerning the presence of the relevant acute symptoms and signs for a period of at least one week after the relevant injuries were sustained at Singleton and subsequently in Vietnam. In the context in which it appears, an implicit hypothesis may suffice, as is illustrated from what was postulated in relation to the diving incident addressed in Byrnes (see [36] above). In any event, not every element of the hypothesis must be supported by evidence tending to establish the same: see again Stares at 217

11. In substance and reality, the decision of the AAT did not undertake the formation of an opinion as to whether the material placed before it raised a “reasonable hypothesis” as required by s 120(3), but instead the decision strayed into an exercise comprising essentially the fact finding process stipulated by s 120(1) before completing the determination, according to law, of the issue as to satisfaction of the hypothesis postulated by the SoP, and in particular that critical aspect thereof comprising “…where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs…”. Put another way, the decision of the AAT in substance and reality launched into impermissible fact finding upon the material before it, without first determining whether any of such material was capable of supporting the hypothesis the subject of the applicable SoP. I stress “in substance and reality” because although the AAT made the following findings as set out in [32] above, namely “Hypothesis number one does not, therefore, satisfy the SoP. Under the Deledio principles, therefore, it is not a reasonable hypothesis”, and “The Tribunal is not satisfied that the hypothesis raised in hypothesis number two contains a factor required by the SoP”, it did so impermissibly by way of determinations made upon the evidence purportedly supporting or militating against the establishment of the hypothesis. And even then, the AAT did not in reality accord to the Appellant the benefit of the testimonies and evidentiary material set out in [39-41] above.

1. Thus the AAT did not observe the requisite process explained by Wilcox J in Dixon v Repatriation Commission (1999) 29 AAR 235 at 242-3 [24].

   “However, at this stage the decision-maker is not concerned with the accuracy of the material giving rise to the hypothesis; the decision-maker is still working under s 120(3). The two steps additional to those identified in Byrnes that is, steps 2 and 3 in the Deledio formulation – are simply limitations on the result that may be obtained in connection with the first of the two Byrnes steps. As the Full Court said in Deledio it is only at the step 4 of the process ‘that the Tribunal will be required to find facts from the material before it’.”

   The approach taken by the AAT coincides with the following adverse description of the Full Court in Lowerson v Repatriation Commission (1994) 50 FCR 252 at 268:

   “The Tribunal’s approach thus involved choosing between evidence in support of the … hypothesis and evidence against it, deciding which it accepted and which it rejected, and then forming an opinion as to whether a reasonable hypothesis had been raised.

   This is the very kind of exercise which Bushell proscribes.”

2. What the AAT was required by established authority to undertake was to appraise the matters set forth or referred to in [39-41] above, not in terms of credibility or incredibility as evidentiary material, or of consistency or inconsistency with other evidentiary material, for the purpose of establishing the hypothesis stipulated by Deledio step 3, but to enquire whether, if hypothetically true, such matters would satisfy the template the subject of the relevant SoP, and in particular, that aspect or component comprising “such acute symptoms and signs last[ing] for a period of at least one week immediately after the injury occurs…”, it being common ground that medical intervention did not occur during any such stipulated period of time. Thus whilst rightly commencing the relevant passage of its decision by referring to such period of “at least a week immediately after the injury occurs” (see again [32] above), the AAT set about fact finding and reaching factual conclusion, rather than hypothesising upon the footing of the matters set forth in [39] and [41] above. The AAT thereby deprived the Appellant of the benefit of the discrete two stage process the subject of Deledio steps 3 and 4, and in particular, the special onus provisions of such step 4 granted in favour of veterans. Of course, as indicated in Bushell (see the passage therefrom cited in Byrnes in [36] above), the AAT would have been entitled to reject as unreasonable a hypothesis “contrary to known scientific facts” or which is “obviously fanciful or untenable”, but the AAT would not conclude the Deledio step 3 by reference to findings of such extremity or gross incredibility. Instead the AAT took the impermissible step of making its purported Deledio step 3 findings at the level merely of probabilities, by referring for instance to the absence of contemporaneous complaints of severe injury in the cervical region.

3. The Appellant has further submitted that the AAT’s conclusion set out in [32] contains an error within the passage “The Tribunal accepts the Respondent’s argument that the type of trauma defined in the SoP is intended to be severe”, and has pointed to a Full Court decision in Arnott v Repatriation Commission [2001] FCA 262, where albeit in the context of lumbar spondylosis Instruments, the following appears at [30-31]:

   “However, in my view the views expressed at first instance, and on appeal, of the meaning of “acute” symptoms or signs in the sense of being “sharp”, acting “keenly on the senses” or being “significant manifestations” appropriately define the word “acute” as used in both the 1995 and 1999 SoPs. The Macquarie Dictionary definitions of “severe” connote, relevantly, a pain that is extreme or harsh. Thus, although the difference in degree may not be substantial, an “acute” pain does not necessarily equate with a “severe pain.

   …[T]he AAT also erred in law in incorrectly requiring that, for a pain to be “acute” it must be “severe”.”

   I think that there is some substance in such submission of the Appellant. Had the AAT adopted the Deledio step 3 process according to law, a conclusion as to a hypothesis of severity was available to be adopted in any event, having regard to the testimony extracted in [39-41] above. It is therefore probably unnecessary to treat this ground of complaint as an independent basis for setting aside the AAT decision in relation to cervical spondylosis.

4. A similar issue as to existence or otherwise of an independent ground for review arises in relation to the contention of the Appellant as to an absence of discrete decision-making on the part of the AAT upon the materiality of the second Vietnam injury to the issue of consistency of the hypothesis raised by the Appellant in relation to the factor of at least one week’s duration of the relevant signs stipulated by the SoP. The Respondent has not satisfactorily responded to this basis of attack upon its decision making, asserting merely that “…the reasons of the Tribunal, read fairly as a whole, show beyond argument that the Tribunal did consider the issue whether the two football injuries could amount to trauma of the spine so as to fall within the SoP and the events that led to a clinical worsening of the cervical spondylosis suffered at Singleton”. The finding which I have recorded in [28] above is inconsistent with that submission. Whilst testimonies concerning the second and third incidents described in [4] above were nearly contemporaneous, when considered against a landscape of time some thirty-four years distant from decision-making, there must be a measure of logic to the Appellant’s contention that two traumas of similarity make necessarily a larger contribution to a hypothesis which satisfies an SoP. I would prefer however to characterise this shortcoming on the AAT’s part as one which contributed to the conclusion expressed in [44] above.

5. I find that the decision of the AAT, in so far as the same related to the cervical spondylosis issue, was not made according to the processes stipulated by the decisions of the High Court, and of this Court, to which reference has earlier been made, and the same must therefore to that extent be set aside, and the issues as to cervical spondylosis remitted to the AAT for determination according to law.

   Legal analysis in relation to the AAT adverse conclusion on lumbar spondylosis

6. There remains the aspect of the appeal concerning lumbar spondylosis, concerning which the AAT’s ruling appears at [34] above. The Appellant’s submission in this regard is as follows:

   “The Tribunal failed to make any finding in respect whether the Applicant’s claimed condition of lumbar spondylosis was war-caused even though, as stated in paragraph 130 of its reasons [AB 291] “lumbar spondylosis was also before the Tribunal. The Tribunal simply stated “There was no argument as regards that condition”. The Tribunal is required to make a finding as to whether the claimed condition was war-caused and give its reasons in support of the finding.”

   There is no substance in this submission. It suffices to refer to Dr Miller’s conclusions on lumber spondylosis appearing at [14] above under the heading “Assessment for Immediate Rate Pension”, and at [23] above under the heading “Rejected Disability Of Lumbar Spondylosis”. It was an unwarranted requirement for the AAT to enter upon formal decision-making upon the matter of lumbar spondylosis, in the light of the inadequacy of material placed before it upon such matter.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:            25 July 2001

Counsel for the Appellant:	Mr M Vincent
Solicitor for the Appellant:	Legal Aid Commission of New South Wales
Counsel for the Respondent:	Mr D Ryan SC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 April 2001
Date of Judgment:	25 July 2001