Rodgers and Repatriation Commission
[2000] AATA 985
•10 November 2000
DECISION AND REASONS FOR DECISION [2000] AATA 985
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1999/350
VETERANS' APPEALS DIVISION )
Re BERNARD WILLIAM RODGERS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor S D Hotop, Deputy President Brigadier R D F Lloyd, Member Dr P A Staer, Member
Date10 November 2000
PlacePerth
Decision The decision under review is affirmed.
........…(sgd S D Hotop)............
Deputy President
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant rendered eligible war service, but not operational service, in Australian Army from October 1942 to August 1943 – applicant suffering from condition of traumatic urethral stricture – applicant sustained damage to urethra and experienced periodic attacks of urine retention before enlistment - applicant received medical treatment in Army for acute urine retention – applicant discharged from Army as permanently unfit by reason of condition of urethral stricture – whether applicant's condition of urethral stricture war-caused – whether applicant's condition of urethral stricture caused or aggravated by Army service – whether medical treatment applicant received in Army inappropriate or less skilful than he would have received in civil life.
Veterans' Entitlements Act 1986 s9(1)
Johnston v Commonwealth (1982) 150 CLR 331
Lee v Minister of Pensions [No 2] (1948) 3 War Pensions Appeals R 1901
REASONS FOR DECISION
10 November 2000 Associate Professor S D Hotop, Deputy President Brigadier R D F Lloyd, Member Dr P A Staer, Member
This is an application by Bernard William Rodgers ("the applicant") for review of a decision of the Repatriation Commission ("the respondent"), dated 5 March 1999, as affirmed by the Veterans' Review Board on 30 September 1999, refusing the applicant's claim for a disability pension under the Veterans' Entitlements Act 1986 ("the Act") on the ground that the condition of traumatic urethral stricture suffered by the applicant is not a war-caused injury or a war-caused disease within the meaning of s9 of the Act.
At the hearing the applicant was represented by Mr H Christie of counsel and the respondent was represented by Mr C Ponnuthurai, a Department of Veterans' Affairs ("DVA") advocate. The Tribunal had before it the documents ("T documents", numbered T1-T8, pp1-96) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the following documentary exhibits tendered by the applicant:
· Statement of the applicant, dated 24 July 2000 (A1);
· Report of Mr P J England, dated 21 March 2000 (A2);
· Report of Mr E J England, dated 16 April 1986 (A3);
· Report of Mr E J England, dated 30 June 1986 (A4);
· Extract of p51 from Medical Directory of Australia (1980) (A5);
· Supplementary report of Mr P J England, dated 25 September 2000 (A6).
Oral evidence was given by the applicant and by Mr P J England (by telephone).
The Applicant's Army Service
The applicant, who was born on 16 June 1915, served within Western Australia in the Australian Army from 27 October 1942 to 27 August 1943. His service comprised eligible war service, but not operational service, within the meaning, and for the purposes, of the Act.
The Applicant's Army Medical HistoryThe applicant's relevant medical history, as recorded in his Army service documents contained in the T documents, is as follows.
A report of the applicant's medical history taken prior to his enlistment records that he was not suffering from any disease or disability and that he had never suffered from, amongst other diseases, "venereal disease or stricture". At his enlistment medical examination, he was classified as "Fit Class I". (T6, p16)
On 15 April 1943 the applicant was treated at 5th Australian Light Field Ambulance for "acute retention of urine". He was catheterised and a quantity of 40 oz of urine was removed providing "much relief". (T7, p45)
On 16 April 1943 the applicant was transferred from 5th Australian Light Field Ambulance to 8th ACCS (Australian Casualty Clearing Station) for further treatment for "acute retention of urine". The contemporaneous clinical notes record that:
· the applicant had suffered from acute retention of urine "on and off" for eight years, had been catheterised the previous day, and had had no attacks of colic, haematuria or gravel;
· on examination of his abdomen, he was found to have a distended bladder;
· a soft rubber catheter would not pass;
· following treatment with morphine and atropine and hot baths, he passed urine in the bath;
· an 11/14 sound was passed without difficulty;
· on 18 April 1943 he was passing urine naturally and was then discharged to 2/1st Australian General Hospital. (T6, pp25-26; T7, p45)
On 18 April 1943 the applicant was admitted to 2/1st Australian General Hospital. The contemporaneous clinical notes describe the applicant's disease as "retention of urine following old standing damage to urethra" and recite the following history:
"8 yrs history of occas urine retention about once a month. Never blood or gravel. When once he is catheterised he is alright again".
A cystoscopy was performed on 21 April 1943 and the findings were recorded as follows:
"1. Urethra at least 1¼" longer than normal…
2.No trigone visible, even with 12 oz water in bladder, due to two projecting masses, covered by normal mucous membrane. A deep cleft, which cannot be penetrated by cystoscope without obscuring light, lies between these rounded projections. No tumour of bladder or ulceration or stone seen during a long search. No bleeding.
3.Urethra seems deflected in prostatic area, the cystoscope or a No 14 bougie passing easily provided that it is rotated about 40º to the right in order to pass through the prostatic urethra. The appearance suggests bilateral projection of lat lobes of prostate into the bladder. [He mentions that at age 10 he fell on to an edge with his perineum, but does not remember haematuria at the time.]"
On 26 April 1943 the following was noted:
"Stream not full-sized. Slight pain during micturition. Feels 'weak' in region of perineum."
On 3 May 1943 it was noted that there was "no recurrence of retention". The applicant was discharged to duty on 10 May 1943. (T6, pp33-34; T7, pp45-46).
On 27 June 1943 the applicant was admitted to 8th Field Ambulance where his condition was diagnosed as follows:
"Tonsillitis with Cervical Lymphadenitis. Urinary obstruction. ?Urethral stricture?"
The contemporaneous clinical notes record that on 1 July 1943 the tonsillitis and lymphadenitis had subsided but that the applicant had not micturated since the previous afternoon. The notes continue:
"Catheterisation attempted with plain soft rubber catheter. Not passed beyond 3" of meatus. ? False passage. Urine evacuated after 24 hours in hot bath. Has a previously (sic) history of injury to urethra and difficulty with micturition."
(T6, pp35-36; T7, pp46-47)
On 2 July 1943 the applicant was transferred from 8th Field Ambulance to 108th CCS. The contemporaneous clinical notes described his disease as "cervical adenitis, partial urethral obstruction" and went on to state:
"For about last 10 years has had attacks of retention of urine, sometimes needing catheterisation. Also gets frequent sore throats – has had enlarged cervical glands…".
(T6, pp38-39; T7, p47)
On 8 July 1943 the applicant was transferred from 108th CCS to 118th Australian General Hospital. Clinical notes dated 9 July 1943 state that the applicant complains of "urinary retention off and on" but that he is otherwise fit for discharge. A report by Lt Col A Britten-Jones, Medical Officer, dated 10 July 1943 states:
"Fall astride fence aet 10 yrs. Has had many attacks of complete retention since. OE Has poor stream no force and a little blood at completion of act. Rubber catheter 7 is held up 2" from meatus. Patient states he has been told there is another block 9" down. = Stricture of urethra. Denies VD. Recommend Boarding."
(T6, pp40,41; T7, p47)
Progress notes of the applicant's case record that on 13 July 1943 he refused medical treatment. (T6, p42) An undated handwritten note, bearing the signatures of the applicant and a witness, states:
"Despite medical advice to the contrary, I refuse any surgical treatment or the passage of bougies for my condition".
(T6, p29)
The applicant completed and signed a pro forma statement, dated 12 July 1943, to the Australian Military Forces Medical Board in which he stated that his disability – which was described as "stricture to pass from bladder" – began in 1926 when he was at Australind school and was, in his opinion, caused by falling on a rail fence. An accompanying pro forma statement completed and signed by the medical officer in charge of the applicant's case, dated 17 July 1943, stated a provisional diagnosis of the applicant's disability as "urethral stricture" and stated that its date of origin was 18 years ago, prior to his enlistment, and that its cause was his falling astride a fence at that time. The applicant's relevant history was summarised as follows:
"Fell astride fence aet 10 yrs – in bed several days. When aet 17 had attack of retention of urine. This has recurred on many occasions since. Has been catheterised on Service – April 1943 at MDS Chidlows. Again at CCS – Bellevue April 1943. At 2/1st AGH May 1943 and finally at 5 MDS at Chidlows. Has had poor stream and no force for years."
The medical officer went on to state that the applicant had been catheterised with difficulty on numerous occasions both prior to enlistment and on Service and that the applicant had refused dilatation of the stricture. (T6, pp12-13; T7, pp48-49)
On 19 July 1943 the Medical Board adopted the abovementioned report of the medical officer and recommended that the applicant be discharged from the Service as permanently unfit (Class D). The Medical Board's recommendation was adopted on 24 July 1943 and the applicant's discharge was approved on 29 July 1943. (T6, p15; T7, p50) The applicant was eventually discharged from the Army on 27 August 1943.
Subsequent Relevant EventsThe T documents record the following subsequent events in relation to the applicant's condition of urethral stricture.
On 4 November 1943 the applicant lodged a claim for a war pension by reason of a disability described as:
"Stricture to Urethra, caused by Army Doctors, 2/1st AGH, Guildford, May 1943."
In his claim form the applicant claimed that that disability was connected with his war service as follows:
"After the Military doctors had passed instruments into my Urethra it started bleeding and have not got over it since."
(T7, p51)
On 1 December 1943 the Repatriation Board rejected the applicant's claim for a war pension. (T7, p51)
On 14 December 1943 the applicant lodged with the Repatriation Commission an appeal against the decision of the Repatriation Board. His stated grounds of appeal were as follows:
"That I had no stricture before entering the Army. That as a result of my operations the stricture has become worse, and the doctors hold out no hope of any improvement."
(T7, p51)
On 10 February 1944 the Repatriation Commission disallowed the applicant's appeal. (T7, p52)
A report of Dr G Abbott, the applicant's treating general practitioner, dated 28 February 1944, stated:
"Mr Bernard Rodgers, of 1 Hayes Street, Bunbury, has written to me about the rejection of his appeal by the Repat. Board.
This man was a patient of mine before joining the Army. He had symptoms at one time and another of possibly a stone in the ureter, but the stone was never disclosed by any investigations. He had no urethral stricture of any kind.
I have seen him since his discharge from the Army and he now has an almost impossible stricture. In my opinion he has a very just claim on the Repat. Commission."
(T7, p52)
On 31 March 1944 the applicant lodged a further appeal with the Repatriation Commission on the following grounds:
"Urethral Stricture.
I have had continuous trouble with this complaint ever since I came out of the army, which I never had before. Dr. Abbott does not want to treat me until I get a pension in (sic) which he holds I am entitled to. A letter from him is attached to this form."
(T7, p52)
On 15 June 1944 the applicant's appeal was transmitted to the War Pensions Entitlement Appeal Tribunal ("WPEAT"). A memorandum from the Repatriation Commission to the WPEAT dated 24 August 1944 stated:
"I have to advise that the further evidence submitted by you in this case was referred to the Principal Medical Officer who, on 17.8.1944, expressed the following opinion:-
From the evidence given by Rodgers himself on 16.4.1943 and 18.4.1943, it is evident that Dr. Abbott's opinion is based on incomplete information. There is no reason to vary the adverse decisions. The condition was present p.t.e. and not affected by war service.
The Commission reconsidered the case in the light of additional evidence, but adheres to its previous decision.
The appeal is therefore retransmitted to you for determination."
(T7, p53)
On 11 September 1944 the WPEAT disallowed the applicant's appeal regarding his condition of urethral stricture. (T7, p56)
A report of Dr G Abbott dated 13 October 1948, lodged with the Repatriation Commission in support of a further claim by the applicant for medical treatment, stated:
"Patient complains of:- Difficulty with mictn.
ON EXAMINATION: This man had trouble with mictn in army and was sent to Hospital at Guildford and Northam. Long periods 5/12. Many attempts at catheterisation. Done with great difficulty and bleeding. Ever since this time he has had constant trouble with a small stream and bleeding. Had to give up his farm and also driving a truck. At present he is not able to empty the bladder and has a lot of pain. I think that he will develop hydronephrotic kidneys because of the damaged urethra and I think that he should have an entitlement for treatment and also a pension.
DIAGNOSIS: ? Urethral stricture."
(T7, pp54, 57)
A further report of Dr G Abbott dated 5 December 1950 stated:
"… In August and October of this year I had to pass sounds on this man for urethral stricture. It was done with the greatest difficulty as the opening was practically non existent.
I first saw this man for retention of urine in 1939. I passed a rubber catheter easily and drew off 60 oz urine. I repeated the process a year later with the same result and at the same time did a cysto. The left kidney had a mild hydronephrosis, but the dye test showed R. 5 min L. 12 min. There appeared to be a mild block in the left ureter at the pelvic brim.
He reported again in 1948 with a stricture in the Urethra and told me that he was catheterised both in Guildford and Northam with metal catheters with great difficulty that a false passage had been made by one of the Doctors and that from that time onwards for 5 years he constantly passed blood per urethra, and never had better than a very fine stream. Obviously at those instrumentations he had suffered a lot of urethral damage and the permanent stricture is now the result.
He will need to be dilated now about every 3 months to keep the stricture open. I cannot understand the attitude of the Department in not recognising that this man's disability is due entirely to the catheterisations he had in Northam and Guildford and I think that he should be reviewed again. If he is brought to Hollywood no one but a skilled urologist should touch his urethra."
(T7, pp54-55)
On 20 December 1950 Dr S G Taylor commented:
"Dr. Abbott's deductions are very sweeping, but are not confirmed by any of the service documents. However it is a theory which has not been considered previously. No further medical action at present."
(T7, p55)
On 16 February 1951 Dr C Klug made the following report:
"…On 28/2/44 Dr. Abbott made no reference to p.t.e. treatment of acute retention of urine but on 5/12/40 (sic) he states he treated this ex-member for retention of urine (1939-1940) and that there appeared to be a block in the L. ureter at the pelvic brim. This ex-member admits to injury to his urethra at 10 years of age and that he had an attack of retention at 17 years of age – 9 years prior to enlistment. He sought treatment from Dr Abbott in 1939 and 1940. He had a further attack of retention after a brief period of service and at this time a soft rubber would not pass. However a 11/14 sound was passed without difficulty – see report, 16/4/43 – and I cannot see how this could have injured this ex-member in any way. There is no record of any bleeding after his artheterisation (sic). This ex-member was admitted to hospital with an infected throat on 2/7/43 and he was sent to 118 A.G.H. on account of poor stream. Lt. Colonel Britten Jones (surgeon specialist) examined this ex-member and stated that the rubber catheter was held up 2 inches from the meatus. A rubber catheter in a surgeon's hands could not cause any trouble. This ex-member refused medical treatment for the stricture and he received his discharge. I cannot find any reason for Dr. Abbott's deduction that treatment (in the army) had any ill effect in any way. On the evidence this ex-member had an injury to urethra at 10 years of age and attacks of retention since ?1917(sic). This condition gradually causes a decrease in the lumen of the urethra at site of stricture and a rubber catheter may have got through in 1939 and 1940 but the increasing decrease in the urethra blocked a rubber catheter in 1943. The condition has progressed and naturally it is getting more difficult to pass sounds. In my opinion, on the evidence, this ex-member received excellent treatment on service and I do not consider his condition was influenced by service, in any way. On 17/7/43 this ex-member admitted to a poor stream and no force for years – this shows a moderately advanced stricture p.t.e."
(T7, p58)
On 24 May 1990 the applicant lodged with the DVA a claim for the acceptance of "urinary tract problem" and "swelling of testicles" as being war-caused. A DVA form entitled "Medical Examination Genitourinary", completed by Dr K Howe and dated 29 June 1990, contained the following comments regarding the applicant's condition:
"During service years had catheterisation. Since then has had painful ejaculation…Also had difficulty passing urine. Regular catheterisations required for many years…".
Dr Howe then noted that the applicant had been involved in a motor vehicle accident in 1963 and had sustained a fractured pelvis and bladder injuries, and that his symptoms were worse thereafter. He made the following additional comments:
"This man has been severely handicapped and permanently disabled for many years. This appears to date from and to be entirely due to his army service years …".
(T7, pp59-60)
In a letter to the DVA, dated 20 April 1999, however, Dr Howe stated:
"I understand that an earlier report from myself alluded to a fracture of the pelvis in an accident in 1963. I am afraid this is an error which resulted from a misunderstanding. I originally took a history from Mr Rodgers in 1986, I made a notation in my records that a fractured pelvis had occurred in that accident. Mr Rodgers now tells me that this is not so and I certainly have no documentary evidence to the contrary.
I wish to put it on record that report is completely false and regret any inconvenience which it may have caused both Mr Rodgers and the Department."
(T7, p84)
On 15 October 1990 a delegate of the respondent made a determination that "post traumatic urethral stricture, chronic urinary retention with overflow incontinence and recurrent urinary tract infections with recurrent prostatitis and epididymo-orchitis" were not war-caused injuries or diseases within the meaning of s9 of the Act, and refused the applicant's claim.
On 1 February 1999 the applicant lodged with the DVA a Claim for Disability Pension and Medical Treatment in respect of a disability described as "Urinary Tract Damage". He contended that his service caused or aggravated that disability as follows:
"Testicle damage while a school boy – treated at St John of God Bunbury by a Dr Abbott (1927). Called up in 1942 and trained as a driver. Coming off guard one night I fell into a slit-trench – realised I was hurt – reported to Duty Sgt.
Upon posting to Werribee first experienced a urinary tract blockage. Insertion of metal catheter in Field Ambulance in Werribee has created a 'false' passage".
He stated that he first became aware of that disability in May 1943. (T7, p69)
A report of Mr P J England, Urological Surgeon, dated 4 December 1998 (T7, p76) confirmed that the applicant continues to experience recurrent urethral strictures and referred to the treatment he has had since 1988, but did not refer to the symptoms and treatment he had during his Army service.
On 5 March 1999 a delegate of the respondent determined that the applicant's condition of traumatic urethral stricture was not war-caused and refused his claim for a disability pension. (T7, pp78-80)
On 27 April 1999 the applicant lodged with the DVA an application for review of the delegate's decision of 5 March 1999 by the Veterans' Review Board ("VRB"). He enclosed an x-ray report, dated 1 October 1981, which stated:
"…There was considerable irregularity of the calibre of the urethra throughout and a false passage was noted at the base of the spongy urethra extending for some 2 cm posterior to the urethra here …".
(T7, p83)
He also enclosed a copy of the letter from Dr K Howe, dated 20 April 1999, referred to in paragraph 27 above.
On 30 September 1999 the VRB decided to affirm the delegate's decision of 5 March 1999. (T8)
On 5 November 1999 the applicant applied to this Tribunal for review of the VRB's decision of 30 September 1999.
The Applicant's EvidenceA written statement of the applicant, dated 24 July 2000, was tendered in evidence (Exhibit A1). That statement, whose contents the applicant confirmed are true and correct, is as follows:
"…
I suffered an accident when I was boy of an age of 9 or 10. I hurt my testicles when I was climbing over a rail fence. I didn't fall, but I squeezed them against the fence as I was climbing over the fence. My father took me to the doctor. From memory my testicles were just bruised. I was required to rest for a few days. I don't recall having any continuing problems resulting from that injury and so far as I am aware it was not an injury that affected my urethra. Certainly, so far as I am aware, I never had any problems passing water as a child or teenager and I don't recall any continuing pain etc.
As a teenager, when I was about 14 or 15, I can recall mucking around with kids of my age and being able to pee over the horses that we were riding. There was absolutely nothing wrong with my urine flow at that time.
When I left school I worked on my father's dairy farm. I was fit, I worked hard and I was an active sportsman.
My only illness occurred in 1939, when I had pneumonia and I went to St John of God Hospital in Bunbury for that. Whilst I was in hospital, I had a urinary stoppage which was treated by Dr Abbott. I don't remember how it was treated, but I am aware that Dr Abbott considered that it was caused by a stone.
(Approximately 10 years ago I was able to obtain my records from the army for the first time. These records indicated that Dr Abbott had investigated for a stone at this time, but had not found a stone. See notes of his report dated 28.2.44 at page 52 of the T documents. I passed a stone many years later in about 1944 and I believe that this stone may have been the cause of my blockage in 1939 and again in 1943 but it is the damage that was caused by the forcible insertion of the metal catheter, which has ruined my health.)
The army records indicate that I may have been in Bunbury Hospital twice in 1939, but I only recall the one occasion. Dr Abbott did not generally discuss matters with me in depth; he would carry out investigations, which he considered appropriate. I don't recall him discussing the problem that I had in 1939. So far as I recall it was a temporary matter which was resolved, or resolved itself, whilst I was in hospital. It was certainly not an ongoing significant problem, otherwise I would recall it. The army records also refer to ongoing urinary problems before I enlisted in the Army. I am sure that this is not correct if I had ongoing problems I would be able to recall them.
Between 1939 and 1942 I continued working on my father's farm; as a result I was exempted from being called up. Then my brother was called up; he was rejected after a short period of service after he suffered a significant ankle injury.
I was then called up and my brother looked after the farm. My father died shortly before I was called up. Unfortunately my brother could not cope with the farm on his own and whilst I was in the army, he turned to drink and the farm was run down and shortly after I was discharged it had to be sold. At the time of my discharge and because of my urinary injury, I was unable to cope with the physical work in running a farm. Further I had to be in Bunbury to be close to the doctor, the farm was about 30 km out of Bunbury. My brother had given up on the farm and I was in no condition to run the farm on my own.
In contrast, at the time of my admission into the army, I had no medical problems at all. I was very fit. I was a regular competitive bike rider. I was one of top riders in Brunswick cycle club. I won the last 3 races at the club before it closed down for the war. On being called up, I was taken into Claremont induction centre and I was examined there. At that examination, I was told I had the biggest chest expansion of any of the army recruits in WA. It was actually 6½ inches although it was recorded as less than this on my papers. Nor did I have any urinary flow problems at this time.
…
Following my call up, I went to the army camp in Northam for basic training.
Whilst I was doing the basic training I had a fall from which I suffered general bruising. This occurred when I was going off guard duty one night about midnight or later. It was in the pitch dark and I fell into a slit trench about 4 feet deep maybe deeper. It was about 2 6' wide and about 6 feet long. It was just there for training purposes, just an empty deep hole with steep sides and a rough and solid clay base, so far as I recall. I went in face first. It was a jarring and unexpected fall. I hurt myself all over, not specifically in the groin. So far as I knew I was just badly bruised and I appeared to recover from the aches and pains and bruising. I reported the fall to Sergeant Hayes. He asked me if I needed treatment, but I didn't take any time off my duties.
A few days later and after I had completed basic training, I was drafted to the ARD, the armoured division. I was drafted to 37 company, which was part of the armoured division. Accordingly, the other recruits and I went for some basic mechanical training at the mechanical school in Graylands. I recall that I was put in charge of the group of new trainees who came with me from Northam to go to the Graylands mechanic school.
…
We were only a couple of weeks at the training course at Graylands and then we went to Werribee where my unit the 37 Australia Company was situated.
After only a few days at Werribee, I suddenly had a complete stoppage. My urine went from a normal flow to a complete stoppage. I do not know for certain what caused this problem. At the time I assumed it was related to the fall I had had at Northam because there was no other precipitating event and I had previously been very healthy.
I was in considerable pain and concerned about being unable to pass water, accordingly I went to the field ambulance. I was asked whether I had been with a prostitute and had picked up a disease. I was indignant at the suggestion, as I knew that this had not occurred.
Some hours passed and I was still unable to pass water and I remained at the field ambulance.
Whilst there, I was put on a table or desk and about 4 or 5 men came around me. There was a tray of metal implements, which I assume were metal catheters; they were definitely not rubber catheters. I am familiar with the look of the rubber catheters, as they have been used on me for the last 50 years.
I was not given an anaesthetic, either general or local, and no jell was used. I was held down by 4 of these medical people. There was one man on each arm and one on each leg whilst [Dr X] used a metal catheter which he pushed up my penis. It was so painful that I passed out. When I awoke I was on my own.
…
I saw the metal catheter used by [Dr X] as he was preparing to insert it. It didn't look anything like the rubber ones that have subsequently been used to treat me. In addition to the fact that the implement was metal, it had a bent over end, whilst the rubber catheters are straight and of course significantly softer.
At the time I awoke from my faint, I was bleeding internally. This continued for about 6 months in total. I recall that on the same day that [Dr X] inserted the catheter, I was taken from the field ambulance to Guildford Hospital. I am not aware as to why I was transferred; it may have been because of the internal bleeding. I was now passing water, but very painfully. My penis and the surrounding area were continuously painful. I got some relief from the pain by squeezing from the base of the penis and I would squeeze out a long tube of coagulated black blood. I would do this at least once a day. I was feeling very sick. I was more or less confined to a ward although I could walk if necessary.
After some days in the Guildford Army Hospital, I was lined up to go to the Army Hospital in Northam. I don't know why I was intended to be transferred from Guildford to Northam.
…
I was put in a ward in the Northam Hospital. I was getting no treatment there. If the army records suggest I was getting treatment, they are false. I do not believe that the army knew how to treat me.
After several days at Northam Hospital and no real treatment, Colonel Britten-Jones came into the ward. I believe that he was in charge of the hospital.
He sat on the side of my bed and he said: 'Rodgers what is wrong with you?'
I replied: 'Colonel it is obvious you don't know what is wrong with me or you wouldn't ask. I will show you.'
I squeezed and out came a tube of black blood from my penis. He was shocked.
He said: 'We cannot fix this in the army. Do you think you can get it cured, if I get you a discharge?'
So I said: 'Well if you can't fix me, what is the good of me being here?'
He said: 'I could get you an immediate discharge if you think you can get treated.'
I said: 'Yes I think I could get treated.'
He said there are 2 ways for a discharge:
'Under the WX number, it will take 3 months. Under the W number, I can get you out straight away'.
I said to him that to me it didn't make a difference, so I accepted the offer of the quick way out, that is under the W classification. I was keen to have treatment from a civilian doctor namely Dr Abbott who was known to me and in whom I had confidence. I didn't realise any other significance in the means of discharge. I had volunteered to go overseas so I had been part of the WX.
I was discharged straight away. I was out and home in 2 days. I went back to the farm and under the care of Dr Abbott. He treated me with penicillin. I don't recall any other specific treatment. I wasn't fit to work on the farm. I stayed there for only a few weeks. I couldn't hold my water. I used to wrap cloths around to prevent the constant leak. I felt physically weak and I was in pain when I passed water or if any stress was placed on my groin through lifting. The black blood continued for almost 6 months after coming out of the army.
…
At an early stage and as I was continuing to have major problems which affected ability to work, Dr Abbott told me that I should get a pension, however when it was knocked back there was nothing more that I could do about it. At one stage Dr [E] England located a double pass in the urethra. The catheter used by [Dr X] had created a second pass for the urine to travel and I understand that this was a large part of my continuing problems.
The stricture that has been created continually goes to close. At the present time I have to keep it open by using a very fine rubber catheter and then once a month Dr [P] England opens it further.
In the past, Dr [P] England has opened it with 2 major operations and before him his father treated me. His treatment included having catheters in place for 3 months at a time. Before Dr England senior I was under the care of Dr Abbott would (sic) treat the closing stricture by using a rubber catheter.
The first time Dr Abbott used a rubber catheter to open the stricture was probably about a year after I had been discharged from the army. It was totally different implement to that used by [Dr X]. It was painful, but the pain was not of the same nature to what had been done to me by [Dr X]."
In his oral evidence-in-chief the applicant confirmed that, at the time of his enlistment in the Army, he was in "absolutely top" physical condition and was not having any problems with his urine. He also confirmed that he first experienced a complete stoppage of urine while stationed at Werribee and that he was then taken to a Field Ambulance where he was put in a hot bath. He said that, although his Army records state that he "passed water" in that bath, he was sure he did not. He said he was then put on a table and was treated by Dr X as follows:
"I was held down. I was put on a table and there was three or four others around, held me down by the arms and legs while he prepared to put the catheters in. He had a tray of metal catheters. There was no such thing – I've seen many rubber catheters since but I did not see any rubber catheters on that occasion there. It was metal catheters, plenty of them, with a hooked end on the catheters and I was held down by the arms and the legs. There was no sedative or anything in my needles or that given to me to stop pain. I was held down. He put it on and during the passing of the catheters, I passed out …".
(Transcript, p8)
He said that thereafter he was transferred to an Army hospital in Guildford where he stayed for 2-3 weeks during which time he was passing urine and also passing blood, but nothing was done and no catheters were passed into him while he was there. He was then transferred to the Australian General Hospital in Northam where he stayed for 10-14 days during which time he demonstrated his physical problem to Colonel Britten-Jones who then arranged for him to be quickly discharged from the Army (as set out in the applicant's written statement in paragraph 35 above).
In cross-examination the applicant maintained that he had been catheterised on only one occasion, that being in the Field Ambulance. He also maintained that he had not been catheterised in the hospital at Guildford or in the Australian General Hospital at Northam. He was then referred to his Army service documents where it is recorded that he underwent a cystoscopy in the hospital at Northam. His initial response was that that definitely did not occur. He later said that he did not recall it.
The applicant was also questioned by the Tribunal. He said that, in the incident involving the trench, he fell head first into the trench. He did not know how, or whether, he injured his penis or testicles in that fall. Again, he confirmed that it was his recollection that he had been catheterised only once and that was by Dr X in the Field Ambulance at Werribee. He was unable to explain the following comment by Dr Abbott on 13 October 1948:
"Many attempts at catheterisation. Done with great difficulty and bleeding".
(Transcript, pp54, 57)
He was also referred to the clinical notes dated 19 April 1943 in his service documents (T6, p27) which record:
"8 yrs ago history of occas acute retention about once a month. Never blood or gravel. When once he is catheterised he is alright again".
His response was as follows:
"I don't know where that idea come from because this is not correct. It is not correct. Not correct. The chance of - - -
But how does all this information get in the records? - - -? --- I don't know, sir. I have seen a lot of information in the records that I have got that I completely refuted. It is not correct. And where they have got it from, I don't know. But I complete (sic) refute it. It is not correct. And where they have got it from, I don't know. But if the answer can come up as to where it come from, well, then I might have a chance of saying yes or no to it."
(Transcript, p32)
Asked who told him it was Dr X who passed the catheter on him, he responded:
"Well, I made it my business to find out who – through – if you ask me who it was in names or persons, I would have a job because it is a bit of a wonder that I can remember his name even. But I inquired through the different ones in the hospitals or where I was, as to who it was that done it. And I understand that it was Dr [X]. But it could have – quite possibly it could have been somebody else. I might be wrong and not him at all. But whoever it was, it doesn't – to me, it doesn't matter who it was."
(Transcript, p32)
The Evidence of Mr P England
Mr P England, Urological Surgeon, confirmed that he had prepared a report, dated 21 March 2000, in relation to the applicant. That report (Exhibit A2) states as follows:
"Mr Rodgers' account of what happened to him is consistent with his current condition.
I think Dr Abbott's claim as stated in 1944 and 1950 are entirely reasonable and consistent with the current findings in Mr Rodgers. His complicated urethral stricture disease is still a problem for him and for those who treat him.
It is likely that an injury occurring in 1943, either in relationship to his service or as a result of medical treatment, has directly contributed to Mr Rodgers' current condition.
It is common urological knowledge today that forcible dilatation of a urethral stricture leads to extravasation of urine from the urethra, with subsequent increase in scarring around the original urethral stricture.
For complicated urethral strictures we rarely preform forcible dilatation because of the potential to make the stricture a lot worse, and these sorts of strictures are now treated by optical urethrotomy, with maintenance of urethral patency with continual repeated urethral dilatation, rather than intermittent dilatation when the stricture recurs.
In light of this, any urethral dilatation treatment that was carried out for his stricture during the war, particularly if his report is accurate, would certainly aggravate it or complicate a pre-existing condition."
In his examination-in-chief, Mr England told the Tribunal that the applicant has a complex posterior urethral stricture which requires repeated dilatation. In order to maintain the patency of his posterior urethra, the applicant repeatedly inserts a soft catheter himself and, on a monthly basis, Mr England gently passes a sound. He also said that the natural history of urethral strictures is that they tend to "close down".
Mr England referred to the applicant's history of having a "fall astride injury" when he was a young boy and of his experiencing urine retention prior to receiving any medical treatment by way of catheterisation in the Army. He said that that "fall astride injury" could feasibly be associated with the development of a urethral stricture before the applicant's Army service, but that that injury was "probably relatively minor in that he didn't have any bleeding associated with it". (Transcript, pp46-47) As regards the applicant's medical treatment in the Army, Mr England said that the use of instruments, such as sounds and cystoscopes, can cause urethral stricture, but that, if used gently by a qualified urologist, will generally not cause such a stricture. But, he said, if such use is conducted in a traumatic way, or if there is roughness involved in it, it can cause a stricture. He added that the urethra is a very sensitive organ and will not tolerate any degree of minor trauma.
Mr England was referred to the applicant's Army medical records which indicate that a cystoscopy was performed on him on 21 April 1943. He said that a cystoscope would not have been able to pass through the posterior urethra if there was a stricture already, thereby suggesting that such a stricture developed after the cystoscopy in April 1943. Asked whether the cystoscope itself or instruments used in the cystoscopy could have caused some damage that led to a subsequent stricture, Mr England replied that that was "feasibly possible". (Transcript, p47)
As regards the applicant's report of an incident in the Army when he was held down while a metal instrument was inserted into his urethra causing him a great deal of pain and causing him to pass out, Mr England said that he had "no reason to disbelieve" that report, although he noted that he had not seen any contemporaneous reports by medical practitioners which confirmed that version of events.
In cross-examination, Mr England was asked to describe the appropriate way to treat an acute retention of urine, as experienced by the applicant in April 1943. He responded that acute retention of urine is a painful condition and is usually relieved, provided there is no history of acute prostatis, by passing a urethral catheter. He agreed that that was the same kind of treatment as was given to the applicant in April 1943.
Mr England was referred to that part of the contemporaneous report of the cystoscopy performed on the applicant on 21 April 1943 which states:
"Urethra seems deflected in prostatic area, the cystoscope or a No 14 bougie passing easily provided that it is rotated about 40º to the right in order to pass through the prostatic urethra".
(T6, p34; T7, p46)
He agreed that that note was some indication of a stricture. He added that quite often the stricturing process results in the urethra appearing to be deviated to one side or the other. He also agreed that if a false passage had been created by the forceful use of an 11/14 sound, that would be likely to be detected by a cystoscopy if performed shortly afterwards. He added, however, that a false passage created by an 11/14 sound would be narrow and would generally heal in 3-4 weeks.
Mr England agreed that the method of treating urethral stricture had changed over the years. Whereas modern treatment involves frequent, gentle dilatation with a soft catheter, in former times the standard practice was not to intervene until an acute urethral stricture had developed and then to relieve it. He also suggested that urologists in former times tended to use sounds more forcefully than is the case today.
In re-examination Mr England said that, in the case of an acute retention of urine without any complications, any medical practitioner who has had training in emergency care should be able to pass a catheter, whereas it "takes quite a lot of training" to learn what is actually seen through a cystoscope. He also said that nowadays medical trainees are not instructed to use such a narrow sound as an 11/14 sound, and that, even by the standards of the 1940s, he would not agree with the use of such a narrow sound except by a person who was considerably skilled or had had a lot of practice of using such a sound.
In response to questions from the Tribunal Mr England agreed that if the passing of a sound on 16 April 1943 had caused damage or a stricture to the applicant's urethra, evidence of that should have been revealed by the cystoscopy which he underwent on 21 April 1943. He also agreed that, at the time of the cystoscopy on 21 April 1943, it was unlikely that there was a "significant" stricture in the applicant's urethra because "you just wouldn't be able to get through if there was a significant stricture". (Transcript, p55)
At the resumed hearing in this matter a supplementary report of Mr England, dated 25 September 2000, was tendered in evidence (Exhibit A6). That report states:
"1.This statement is supplemental to the evidence given by me in the Administrative Appeals Tribunal concerning Bernard Rodgers on 7 September 2000.
2.If Mr Rodgers was forcibly dilated on 16 April 1943, which is consistent with his description to me, that would be contrary to correct medical knowledge and practice even as existed at that time.
3.There was nothing in the notes to indicate that a forcible dilation had occurred.
4.I have discussed the likely practice in this area of surgery as at 1944 with my father Dr Ernest England retired consultant urologist. The cystoscopy performed on Mr Rodgers would at that time normally have been performed by a general surgeon and not by a general practitioner. There were however a number of general practitioners particularly in country areas who regularly performed general surgery and became experienced. It would have been unusual for the surgery to be performed by a radiologist.
5.The equipment available for a cystoscopy was far less effective than modern equipment and made observation much more difficult.
6.Nevertheless and whilst the notes of the cystoscopy do not indicate whether or not the cystoscopy was correctly performed, they do indicate that the person who performed the cystoscopy was not experienced in the operation by reference to the Doctor's description of his observations of the patient's anatomy."
The Legislation
Section 9 of the Act relevantly provides:
"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, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
…
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(e)the injury suffered, or disease contracted, 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 or disease 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 or contracted that disease;
but not otherwise."
Pursuant to s120(4) of the Act the Tribunal is required to decide this matter to its reasonable satisfaction.
The Submissions
Mr Christie (for the applicant) submitted that the evidence before the Tribunal establishes the existence of a causal relationship between the applicant's eligible war service and the contraction or aggravation of his urethral stricture. Relying on the contemporaneous reports of Dr Abbott, and the reports and oral evidence of Mr England, Mr Christie submitted that the medical treatment that the applicant received during his Army service, by way of catheterisations and a cystoscopy, probably caused him to suffer a urethral stricture or, alternatively, probably aggravated a pre-existing urethral stricture. He further submitted, on the basis of the applicant's evidence and the medical evidence before the Tribunal, that the medical treatment that the applicant received in the Army was performed inappropriately and less skilfully and carefully and, in the case of the cystoscopy performed on 21 April 1943, by a less competent and experienced medical practitioner, as compared with the standard of medical treatment that would have been available to the applicant at that time in civil life.
Mr Ponnuthurai (for the respondent) submitted that the medical treatment received by the applicant for acute urine retention and urethral problems during his Army service was the standard treatment which was provided for such conditions at that time, whether in civil life or in the armed services, and had not been administered less carefully, skilfully or diligently than would have been the case in civil life. Accordingly, he submitted that it was not open to the Tribunal to find, on the balance of probabilities, that the applicant's urethral stricture either arose out of, or was attributable to, or was contributed to in a material degree or aggravated by, the applicant's eligible war service.
Findings on Material Questions of Fact and Consideration of SubmissionsThe applicant's evidence, comprising his written statement (Exhibit A1) and oral evidence, was not entirely consistent with the contemporaneous Army records of his medical history and treatment during the period of his eligible war service contained in the T documents and set out in paragraphs 5-26 above. The Tribunal is of the view that those contemporaneous records (which, the Tribunal notes, are quite detailed) are generally likely to be more reliable, as an objectively accurate account of the relevant events at the time, than the subjective recollections of the applicant some 57 years after those events.
The Tribunal makes the following findings on the basis of the relevant Army service documents relating to the applicant contained in the T documents:
the applicant sustained damage to his urethra, and experienced periodic attacks of urine retention, before his enlistment;
the first recorded attack of urine retention, after his enlistment, was on 15 April 1943 when he was admitted to 5th Australian Light Field Ambulance where he was catheterised and a quantity of 40 oz of urine was removed providing much relief;
on 16 April 1943 the applicant was transferred to the 8th ACCS where a soft rubber catheter would not pass but an 11/14 sound passed without difficulty;
on 18 April 1943 the applicant was passing urine naturally;
on 21 April 1943 a cystoscopy was performed on the applicant at 2/1st Australian General Hospital and no tumour of the bladder or ulceration or stone or bleeding was observed, although the urethra appeared to be deflected in the prostatic area and the cystoscope or a No 14 bougie was able to pass easily provided that it was rotated about 40 degrees to the right in order to pass through the prostatic urethra;
on 3 May 1943 it was noted that there was "no recurrence of retention" and the applicant was discharged to duty on 10 May 1943;
on 27 June 1943 the applicant was admitted to 8th Field Ambulance where he was diagnosed with tonsillitis, cervical lymphadenitis and urinary obstruction, with a query regarding a urethral stricture;
on 1 July 1943 catheterisation was attempted but a soft rubber catheter was not passed beyond 3 inches of the meatus, and there was a query regarding a false passage;
on 2 July 1943 the applicant was transferred to 108th CCS where he was diagnosed with cervical adenitis and partial urethral obstruction;
on 8 July 1943 the applicant was transferred to 118th Australian General Hospital where Lt Col Britten-Jones, the medical officer in charge, reported on 10 July 1943 that the applicant had a poor stream with no force and a little blood at the completion of the act (of micturition), and that a rubber catheter was held up 2 inches from the meatus;
on 17 July 1943 the medical officer in charge of the applicant's case gave a provisional diagnosis of the applicant's disability as "urethral stricture" and stated that it had originated 18 years previously and was caused by his falling astride a fence at that time.
The medical evidence before the Tribunal confirms that the applicant does have a urethral stricture, and the Tribunal so finds. The more problematic questions, however, are when that condition originated and what was its cause.
As regards the origin of the applicant's urethral stricture, the evidence before the Tribunal does not clearly establish when the applicant contracted that condition. The Tribunal is, however, able to find, on the basis of the applicant's pre-enlistment medical history as recorded in his service documents (including his own statement to the Medical Board, dated 12 July 1943, for the purpose of his discharge), that he had been suffering from a partial urethral stricture for at least 8 years prior to his enlistment. The Tribunal does not accept Dr Abbott's assertion in his report of 28 February 1944 that the applicant, prior to joining the Army, had "no urethral stricture of any kind". That assertion appears to be inconsistent, not only with the abovementioned history, but also with Dr Abbott's own subsequent report of 5 December 1950 in which he stated that he had treated the applicant for urine retention and catheterised him in 1939 and 1940 and had performed a cystoscopy on him in 1940. Accordingly, the Tribunal finds that the applicant had been suffering from a partial urethral stricture for at least 8 years prior to his enlistment in October 1942 and that he continued to suffer from that condition at the time of his enlistment and thereafter.
On the basis of the contemporaneous medical records contained in the applicant's service documents, the Tribunal finds that the applicant's urethral stricture worsened during his period of service. That is confirmed by the report of Dr Klug, dated 16 February 1951. The question then arises whether the applicant's urethral stricture condition was contributed to in a material degree, or was aggravated, by his eligible war service, within the meaning of s9(1)(e) of the Act. It was common ground that the answer to that question depends on the answer to a further question, namely, whether the medical treatment given to the applicant during his period of service in relation to his urethral stricture condition was not appropriate or was administered less carefully, skilfully or diligently as compared with the medical treatment that he would have received for that condition in civil life at that time. Reference was made to the following dictum of Denning J (as he then was) in Lee v Minister of Pensions [No 2] (1948) 3 War Pensions Appeals R 1901 at 1914, cited by Gibbs CJ, Mason and Wilson JJ in Johnston v Commonwealth (1982) 150 CLR 331 at 337:
"Cases where the man has reported sick but has not been treated with the same skill or expedition or facilities as he would have been in civil life, as, for instance, where the disease has not been diagnosed or treated as early as it should have been, or where the disease occurs at a place overseas where deep X-ray therapy or operative treatment is not available. It is to be assumed in the man's favour that in civil life he would, on reporting sick, be treated with reasonable care and skill and with the facilities available in his home country; and if, owing to war service he is not so treated, any ensuing aggravation is due to war service … there are cases where symptoms appear early and he reports sick at a time when skilful treatment may prolong his life. In such cases, if he has not been properly treated, any ensuing aggravation would be due to war service."
On the basis of the evidence before it, the Tribunal is not satisfied that the medical treatment that the applicant was given for his urethral stricture condition while in the Army was in any way inappropriate or was administered less carefully, skilfully or diligently as compared with the medical treatment that he would have received for that condition in civil life at that time. As regards the treatment the applicant was given in the Army for urine retention, that treatment primarily comprised catheterisation with a soft rubber catheter initially or, if such a catheter would not pass, an 11/14 sound, and a cystoscopy. The Tribunal notes that, according to the report of Dr Abbott (the applicant's treating general practitioner in civil life), dated 5 December 1950, he had himself administered similar treatment to the applicant, namely, catheterisation with a soft rubber catheter in 1939 and 1940, a cystoscopy in 1940, and the passing of sounds in August and October 1950. Likewise, Mr England, in his oral evidence, confirmed that, even today, the appropriate way to treat an acute retention of urine, such as that experienced by the applicant in April 1943, is by passing a urethral catheter, although his opinion was that, even by the standards of the 1940s, an 11/14 sound (which is very narrow or fine) should have been used only by a person who was considerably skilled or had had a lot of practice using such a sound. The contemporaneous clinical notes relating to the passing of an 11/14 sound on the applicant on 16 April 1943 at 8th ACCS do not indicate the identity, qualifications or experience of the person who used the 11/14 sound, but they do state that the sound passed "without difficulty". Furthermore, the contemporaneous clinical notes relating to the cystoscopy that was performed on the applicant at 2/1st Australian General Hospital on 21 April 1943 state that no ulceration or bleeding was detected, although they noted an apparent deflection of the applicant's urethra in the prostatic area. In the Tribunal's opinion, there is nothing in those clinical notes to suggest that the abovementioned treatment, including the passing of an 11/14 sound, was inappropriate or was administered without due care, skill and diligence or by a person without the appropriate qualifications and experience. The Tribunal acknowledges, however, that, as stated by Mr England in his oral evidence, that treatment could have exacerbated the applicant's condition.
The Tribunal notes the applicant's evidence that he was subjected to a forcible catheterisation by means of metal catheters at the hands of Dr X at the Field Ambulance at Werribee, following which he suffered internal bleeding and also passed blood. There is, however, nothing in the contemporaneous clinical notes which in any way supports that version of events. In particular, those notes do not refer to any forcible catheterisations occurring at the Field Ambulance or elsewhere – on the contrary, they refer to a soft rubber catheter not passing and an 11/14 sound subsequently passing "without difficulty". Nor do those notes refer to any internal bleeding (on the contrary, the notes relating to the cystoscopy on 21 April 1943 state that there was no bleeding) or haematuria at that time. There is no mention of haematuria until 12 July 1943 when Lt Col Britten-Jones reported that the applicant had a "poor stream, no force and a little blood at completion of act". Finally, although various Army medical practitioners are referred to in the contemporaneous clinical notes, there is no reference in those notes to Dr X. Accordingly, although the Tribunal would be prepared to accept, on the basis of Mr England's supplementary report, that a forcible catheterisation, as described by the applicant, was not appropriate medical treatment for acute urine retention, being not in accordance with the prevailing medical standards and practice of the 1940s, the Tribunal is not satisfied that the applicant was ever subjected to such a forcible catheterisation during his Army service as claimed by him. As previously noted, the Tribunal regards the contemporaneous clinical notes as a more reliable source of accurate information regarding the medical treatment administered to the applicant for acute urine retention that he experienced in April 1943 during his Army service and there is nothing in those notes to suggest that the applicant was ever subjected to a forcible catheterisation as described by him.
As regards the cystoscopy performed on the applicant on 21 April 1943, the contemporaneous clinical notes likewise do not indicate the identity, qualifications or experience of the person who performed that procedure. Those clinical notes bear the signature of a Captain Burnard, but the Tribunal cannot reasonably infer from the mere presence of Captain Burnard's signature that he himself performed the cystoscopy. Nor is the Tribunal able, on the basis of those clinical notes or any other evidence before it, to make any finding regarding Captain Burnard's qualifications and experience. The Tribunal notes that Mr England, in his supplementary report of 25 September 2000 (Exhibit A6), commented that the clinical notes indicated that "the person who performed the cystoscopy was not experienced in the operation by reference to the Doctor's description of his observations of the patient's anatomy". Unfortunately, Mr England did not explain the basis on which he formed that opinion. In any event, as the Tribunal has already observed, it cannot reasonably be inferred that the author if those clinical notes was necessarily the person who actually performed the cystoscopy. Thus, even if Mr England's opinion regarding the shortcomings of the clinical notes relating to the cystoscopy be accepted, that does not necessarily reflect adversely on the competence or experience of the person who performed the cystoscopy. Accordingly, the Tribunal is not prepared to make a finding that the cystoscopy performed on the applicant on 21 April 1943 at 2/1st Australian General Hospital was performed without due care, skill and diligence or by a person without the appropriate qualifications and experience.
Conclusion
The ultimate findings of the Tribunal are, therefore, as follows:
the applicant suffered from a partial urethral stricture prior to, and at the time of, his enlistment in the Army;
the applicant's urethral stricture became worse during his period of service in the Army;
the worsening of the applicant's urethral stricture during his period of service in the Army was consistent with the natural progression of the severity of such a condition and might also have been exacerbated somewhat by the medical treatment he was given while in the Army; but
the medical treatment which the applicant was given for his urethral stricture condition while in the Army was in accordance with the mode of medical treatment which he would have received, and was administered no less carefully, skilfully or diligently than it would have been administered to him, for that condition in civil life at that time.
Accordingly, the Tribunal finds that the applicant's condition of urethral stricture
did not arise out of, and is not attributable to, his eligible war service; and
was not contributed to in a material degree by, and was not aggravated by, his eligible war service.
The applicant's condition of urethral stricture is, therefore, not a war-caused injury or a war-caused disease within the meaning of s9 of the Act.
DecisionFor the above reasons, the Tribunal affirms the decision under review.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President
Brigadier R D F Lloyd, Member
Dr P A Staer, MemberSigned:
................................(sgd S Railton)...............................
AssociateDates of Hearing 7 and 25 September 2000
Date of Decision 10 November 2000
Counsel for the Applicant Mr H Christie
Solicitor for the Applicant
Counsel for the Respondent Mr C Ponnuthurai
Solicitor for the Respondent
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