Saltmarsh and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 178
•24 March 2016
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2015/1352
VETERANS’ APPEALS DIVISION )Re:John Saltmarsh
Applicant
And:Repatriation Commission
Respondent
CORRIGENDUM TO DECISION [2016] AATA 178
The Tribunal amends its decision of 24 March 2016 as follows:
1. by deleting the formal decision on the cover page and substituting:
“The Tribunal decides to:
(1)set aside the decision of the Commission dated 15 August 2013 and affirmed by a decision of the VRB dated 12 February 2015; and
(2)substitute a decision that Mr Saltmarsh is suffering from:
(a) lumbar spondylosis which is a war-caused disease;
(b) spondylolisthesis L5/S1 and spondylolysis which are not war-caused diseases.”
2. by deleting the decision in [115] and substituting:
“For the reasons I have given, I:
(1)set aside the decision of the Commission dated 15 August 2013 and affirmed by a decision of the VRB dated 12 February 2015; and
(2)substitute a decision that Mr Saltmarsh is suffering from:
(a) lumbar spondylosis which is a war-caused disease;
(b) spondylolisthesis L5/S1 and spondylolysis which are not war-caused diseases.”
……[sgd]…………………..
S A FORGIE
Deputy President
Saltmarsh and Repatriation Commission (Veterans’ entitlements) [2016] AATA 178 (24 March 2016)
Division: VETERANS’ APPEALS DIVISION
File Number: 2015/1352
Re: JOHN SALTMARSH
APPLICANT
And:REPATRIATION COMMISSION
RESPONDENT
DECISION
Tribunal Deputy President S A Forgie
Date 24 March 2016
Place Melbourne
The Tribunal decides to:
(1)set aside the decision of the respondent dated 15 August 2013 and affirmed by a decision of the Veterans’ Review Board dated 12 February 2015; and
(2)substitute a decision that the applicant is suffering from lumbar spondylosis which is a war-caused disease.
………[sgd]…………….
Deputy President
CATCHWORDS – VETERANS – applicant’s claim for pension and medical treatment for incapacity – whether applicant’s condition war-caused – decision of Veterans’ Review Board set aside
LEGISLATION
Acts Interpretation Act 1901 (Cth) s 13(1)
Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth) s 9
Veterans’ Entitlements Act 1986 (Cth) ss 5D(1), 7, 7(1), 7(1)(a), 8, 9, 9(1)(a), 9(1)(b), 9(1)(c), 9(2), 9(3) to 9(7), 13(1), 13(1)(b), 13(1)(d), 120(1), 120(3), 120(4), 120A, 120A(1)(a), 120A(3), 120A(4), 196B(2), 196B(14)Amendment Statement of Principles No 44 of 2010
Statement of Principles No 5 of 2006 cll 3(b), 6(a), 6(h), 6(k)
Statement of Principles No 62 of 2014 cll 3(b), 5, 6(d), 6(e), 6(h), 9
Statement of Principles No 59 of 2015 cll 3(b), 4, 5, 6(a), 6(b), 6(e), 6(f), 6(n), 7CASES
Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555
Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408; 109 ALR 30; 29 ALD 1; 16 AAR 1
Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564; 116 ALR 210; 18 AAR 1; 30 ALD 1
Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35; 96 ALD 536; 46 AAR 56Elliott v Repatriation Commission [2002] FCA 26; (2002) 73 ALD 377
Hall v Repatriation Commission [2007] FCA 2021
Hogno v Repatriation Commission [2010] FCA 1044; (2010) 53 AAR 47; (2010) 118 ALD
Kaluza v Repatriation Commission [2011] FCAFC 97; (2011) 280 ALR 621; 55 AAR 349; 122 ALD 448Keeley v Mr Justice Brooking [1979] HCA 28; (1979) 143 CLR 162; 25 ALR 45
Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331; 74 ALD 68; 36 AAR 484
Ogden Industries Pty Ltd v Lucas [1970] AC 113
Rayson and Repatriation Commission [2011] AATA 233; (2011) 55 AAR 1; 121 ALD 311
Re Humble and Repatriation Commission [2016] AATA 123
Re Robertson and Repatriation Commission [1998] AATA 127; (1998) 50 ALD 668Repatriation Commission v Bawden [2012] FCAFC 176; (2012) 206 FCR 296; 59 AAR 49
Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364; 47 ALD 481; 149 ALR 721; 26 AAR 298
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82; 27 AAR 144; 49 ALD 193
Repatriation Commission v Gorton [2000] FCA 532; (2000) 98 FCR 108; 31 AAR 150; 60 ALD 401
Repatriation Commission v Hancock [2003] FCA 711; (2003) 37 AAR 383
Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581
Repatriation Commission v Keeley [2001] FCA 1194; (2001) 110 FCR 321; 33 AAR 370; 65 ALD 609
Repatriation Commission v Money [2008] FCA 118; (2008) 100 ALD 527
Repatriation Commission v Money [2009] FCAFC 11; (2009) 173 FCR 410; 107 ALD 10Repatriation Commission v Smith (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17; 12 ALD 798
Repatriation Commission v Warren [2008] FCAFC 64; (2008) 167 FCR 511; 246 ALR 279; 101 ALD 222; 47 AAR 461
Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; 200 ALR 332; 75 ALD 420; 37 AAR 424OTHER MATERIAL
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
Macquarie Dictionary, revised 3rd edition, 2001, The Macquarie Library Pty Ltd (Macquarie)
REASONS FOR DECISION
On 29 July 2013, Mr John Saltmarsh lodged a claim for pension and medical treatment for incapacity from a back injury. The Repatriation Commission (Commission) refused his claim on 15 August 2013 and its decision was affirmed by the Veterans’ Review Board (VRB) on 12 February 2015. Both the Commission and the Board diagnosed Mr Saltmarsh’s condition as spondylolytic spondylolisthesis. I have found that his condition may be diagnosed as spondylolisthesis, lumbar spondylosis and spondylolysis. While I have found that his spondylolisthesis and spondylolysis are not war-caused, I have found that his lumbar spondylosis is war-caused. I have set aside the Commission’s decision and substituted another to reflect that.
BACKGROUND
Mr Saltmarsh has claimed a pension in respect of incapacity he has suffered from back conditions that he attributes to an event occurring in Vietnam in 1969 when he was alighting from the driver’s compartment of a Centurion tank and was hit by the tank’s gun. Following his return to Australia, Mr Saltmarsh has since had workplace accidents. One occurred in 1987. In that accident, Mr Saltmarsh said, he had slipped from a ladder and hurt his left knee and ankle as well as his lower back. Another occurred in 1995 when he was involved in carrying a cool room panel weighing 80 to 100 kg. When the other person who was helping him lost his grip on the panel, Mr Saltmarsh found himself carrying the full weight of it. He said that he experienced sudden severe low back pain, which caused him to drop the panel. The pain was so severe that he could not continue.
LEGISLATIVE FRAMEWORK
Entitlement to pension
Sections 13(1)(b) and (d) of Part II of the Veterans’ Entitlements Act 1986 (VE Act) provides that, where a veteran is incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to that enactment, liable to pay pension by way of compensation to that veteran. Incapacity is a reference to the effects of an injury or a disease and not to the injury or disease itself.[1]
[1] VE Act; ss 5D(1) and (2)
Determining preliminary issues
Eligibility for a pension under s 13(1) depends upon a veteran’s having an injury or suffered a disease that is war-caused. When an injury or disease is taken to be a war-caused injury or a war-caused disease is the subject of s 9. On behalf of Mr Saltmarsh, Ms Spencer of counsel, relied only on s 9(1)(b) in this case. It provides that:
“Subject to this section and section 9A, 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:
(a)…
(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;
(c)-(e)…
but not otherwise.”
It follows that, in order to determine whether a veteran has a war-caused injury or a war-caused disease within the terms of s 9(1)(b), he or she must have an injury or be suffering from a disease and must have eligible war service. If a veteran has both, the next issue to explore is whether there is the necessary causal link between his or her eligible war service and injury or disease.
A. Determining whether a veteran has an injury or is suffering from a disease
The expression “injury” is defined in s 5D(1) to mean:
“… any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a)a disease; or
(b) the aggravation of a physical or mental injury.”
The expression “disease” is defined to mean:
“(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of any such ailment, disorder, defect or morbid condition;
but does not include:
(c)the aggravation of such ailment, disorder, defect or morbid condition; or
(d)a temporary departure from:
(i)the normal physiological state; or
(ii)the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).”
Whether Mr Saltmarsh is suffering from an injury or disease is determined according to the standard of proof set out in s 120(4) i.e. to the “reasonable satisfaction” of the Commission initially or, on review, the VRB and then the Tribunal. This was confirmed to be the case by Repatriation Commission v Bawden[2] when a Full Court of the Federal Court explained that:
“ A decision-maker is first obliged to examine the collection of symptoms of which the claimant complains to determine whether, according to the standard of ‘reasonable satisfaction’ set by s 120(4), they constitute a disease for the purposes of entitling a veteran to a pension. …
It may be accepted that, while a veteran must establish on the balance of probabilities that he or she suffers from ‘incapacity from injury or disease’, the veteran is not obliged to attach a label to the injury or the disease from which the claimed incapacity is alleged to result. …”[3]
[2] [2012] FCAFC 176; (2012) 206 FCR 296; 59 AAR 49; Keane CJ, Jacobson and Bennett JJ
[3] [2012] FCAFC 176; (2012) 206 FCR 296; 59 AAR 49 at [43]-[44]; 305-306; 59
What is meant by “reasonable satisfaction” was explained by Beaumont J, with whom Northrop and Spender JJ agreed in Repatriation Commission v Smith.[4] It means that the decision-maker must ask:
“...itself whether on the facts of the case, it was persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other (see Re Repatriation Commission and Delkou (No 2) (1986) 9 ALD 358; Re Easton and Repatriation Commission (1987) 12 ALD 777; Re Repatriation Commission and Falkner (1987) 12 ALD 87.”[5]
[4] (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17; 12 ALD 798
[5] (1987) 15 FCR 327; 74 ALR 537; 7 AAR 17; 12 ALD 798 at 335; 547; 26; 800
B. Determining whether a veteran has relevant service
As he relies on s 9(1)(b) of draw the causal link between his Army service and his injury or disease, Mr Saltmarsh must have eligible war service. Eligible war service is defined in s 7. Relevant to this case is s 7(1)(a), which, in so far as it relates to Mr Saltmarsh’s circumstances, provides:
“… for the purposes of this Act:
(a)a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; …”
It has been agreed between the parties that Mr Saltmarsh has rendered operational service in Vietnam from 3 September 1969 to 10 September 1970.[6] That is a discrete period in his service with the Regular Australian Army that extended from 19 June 1968 to 20 July 1971. For the purposes of the VE Act, the fact that he has rendered operational service means that he is taken to have rendered eligible war service during that same discrete period.[7]
War-caused injury or war-caused disease: determining the causal link between an injury or disease and relevant service
[6] VE Act; s 7(1) Had the Commission not conceded this issue, I would have had to decide whether Mr Saltmarsh had operational service, and so eligible war service, according to the standard of proof set out in s 120(4) of the VE Act. That is for it, together with the fact that he is suffering an injury, are assumed when applying the less rigorous standard of proof that applies in determining whether, in this case, his injury arose out of, or was attributable to, his eligible war service.
[7] VE Act; s 7(1)
As Mr Saltmarsh’s claim for a pension is made under Part II of the VE Act and relates to his operational service, I must determine whether any injury or disease from which I have found him to suffer is a war-caused injury or a war-caused disease by reference to the standard of proof set out in s 120(1). It provides:
“Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury or that the disease was a war-caused disease … , as the case may be, 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.”
Section 120(3) sets out that the Commission shall be “… satisfied, beyond reasonable doubt, that there is no sufficient ground for determining …” (emphasis added) that the injury or disease was a war-caused injury or a war-caused disease in certain circumstances. Those circumstances arise:
“… 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, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.” (emphasis added)
If the Commission is of this opinion, the matter comes within the rider to s 120(1) and the Commission will not determine that the injury, disease or death in respect of which a claim was made was war-caused.
If the Commission is of the opinion that the material does raise a reasonable hypothesis connecting the injury, disease or death with the veteran’s particular service that does not of itself oblige the Commission to make the determination. Section 120(3) sets out one circumstance in which the Commission is required to be “satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination” i.e. that the injury, disease or death was war-caused. That does not remove the obligation to consider whether there are any other circumstances under s 120(1) in which the Commission may be “satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination”.
As Mr Saltmarsh has claimed a pension under Part II in relation to his operational service well after 1 June 2004, the provisions of 120(3) are qualified by s 120A.[8] Section 120A was introduced from 1 July 1994 by the Veterans’ Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (VE Amendment Act) leaving ss 120(1) and (3) unchanged.[9] In Mr Saltmarsh’s case, the qualification set out in s 120A(3) is relevant as the Repatriation Medical Authority (RMA) has determined relevant Statements of Principles (SoPs). It provides:
“For the purpose of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted 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); or
(b)…
that upholds the hypothesis.
Note:See subsection (4) about the application of this subsection.”
[8] VE Act; s 120A(1)(a)
[9] VE Amendment Act; s 9
Section 120A(4) provides for the situation in which the RMA has neither made a SoP in respect of a particular kind of injury, disease or death of a person nor declared that it does not propose to make one. In that case, s 120A(3) does not apply in relation to the claim. That is not the situation in this case.
The role of section 120(3) before the addition of s 120A(3)
A. The task
In the context of s 120(3), the word “raise” is used in the sense of “to give rise to; bring up or about (a question, issue, etc.)”[10] or “to put forward for consideration or discussion”.[11] That means that s 120(3) requires the Commission to be of the opinion that the material puts forward for consideration a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. That will involve a consideration of each of the propositions or statements put forward as part of an overall proposition or statement that is the hypothesis. Having done that, the question is whether the material raises (and so puts forward for consideration, or brings up) a hypothesis (and so a proposition or statement) that is reasonable and that connects the injury, disease or death with the circumstances of the particular service rendered by the person? The question is asked of every chain in the link from some circumstance in the person’s service through to medical-scientific issues drawing the link between the injury, disease or death and the circumstances.
[10] Macquarie Dictionary, revised 3rd edition, 2001, The Macquarie Library Pty Ltd (Macquarie)
[11] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
The task was considered by the High Court in Bushell v Repatriation Commission[12] (Bushell) and Byrnes v Repatriation Commission[13] (Byrnes). It did so before the addition of s 120A(3) but that addition did not alter s 120(3) or the meaning to be attributed to it. Beginning with Bushell, Mason CJ, Deane and McHugh J delivered a joint judgment saying:
“ 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. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that that a connexion has not been proved between the kind of injury which occurred and the circumstances of the kind which constitute the relevant incidents of the veteran’s service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists. ….
However, a hypothesis cannot be reasonable if it is ‘contrary to proved scientific facts or to the known phenomena of nature’ …. Nor can it be reasonable if it is ‘obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous ….
… [I]t is not the function of s 120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s 120(3) the Commission cannot have regard to the medical or scientific material which is opposed to the material which supports the veteran’s claim. 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 connexion between the incapacity or death and the service of a 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.
… The use of the terms ‘the material’ and ‘raise’ strongly suggests that sub-s (3) is not concerned with the proof or satisfaction of a claim but with whether there is some ‘material’ which calls for a determination under s 120(1). …”[14]
[12] [1992] HCA 47; (1992) 175 CLR 408; 109 ALR 30; 29 ALD 1; 16 AAR 1; Mason CJ; Brennan, Deane, Dawson, Toohey and McHugh JJ
[13] [1993] HCA 51; (1993) 177 CLR 564; 116 ALR 210; 18 AAR 1; 30 ALD 1; Mason CJ, Gaudron and McHugh JJ
[14] [1992] HCA 47; (1992) 175 CLR 408; 109 ALR 30; 29 ALD 1; 16 AAR 1 at [8]-[11]; 414-415; 34-35, 8-9, 5-6
If the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service, that is an end of the matter. The Commission will be satisfied beyond reasonable doubt that the there is no sufficient ground for determining that an injury, disease or death was war-caused.
What amounts to a “reasonable hypothesis” has been considered by later cases. I refer particularly to Repatriation Commission v Bey:[15]
“… This Court re-states the position established by East,[[16]] Bushell and Byrnes. A ‘reasonable hypothesis’ involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word ‘reasonable’, it is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister’s second reading speech and with authority.”[17]
[15] [1997] FCA 1347; (1997) 79 FCR 364; 47 ALD 481; 149 ALR 721; 26 AAR 298; Northrop, RD Nicholson, Sundberg, Marshall and Merkel JJ
[16] [1987] FCA 242; (1987) 16 FCR 517; 74 ALR 518; 6 AAR 492; 12 ALD 389
[17] [1997] FCA 1347; (1997) 79 FCR 364; 47 ALD 481; 149 ALR 721; 26 AAR 298 at 372-373; 490; 730; 306-307 per Northrop, Sundberg, Marshall and Merkel JJ
In Elliott v Repatriation Commission,[18] Stone J noted that:
“… the ‘whole of the material’ may include material put forward by the applicant or by the commission itself. The commission must consider this material to determine if it raises an hypothesis connecting the veteran’s condition and the relevant service and if any such hypothesis is reasonable … [T]here is no question of fact finding at this stage. Indeed, at this point the tribunal is entitled to make assumptions about the existence of facts: Repatriation Commission v Stares (1996) 66 FCR 594 at 600-1; 41 ALD 212. …”[19]
[18] [2002] FCA 26; (2002) 73 ALD 377
[19] [2002] FCA 26; (2002) 73 ALD 377 at [5]; 379
B. Section 120(1)
If the material does raise a reasonable hypothesis of a connection between service and the injury, disease or death, as the case may be, the question raised by s 120(1) still remains to be asked and answered. Section 120(3) does not answer the question in all circumstances; only in the circumstances in which the Commission is of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service. The question is whether the Commission is satisfied, beyond reasonable doubt, that there is no sufficient ground on which to make the determination that the injury, disease or death was war-caused. As the joint judgment in Bushell continued:
“… That is to say, the Commission must determine that the injury, disease or death was war caused ‘unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making the determination’. …”[20]
[20] [1992] HCA 47; (1992) 175 CLR 408; 109 ALR 30; 29 ALD 1; 16 AAR 1 at [11]; 415; 35; 9; 6
Their Honours went on to explain that:
“ The Commission will be satisfied beyond reasonable doubt ‘that there is no sufficient ground for making [the] determination’ if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. …”[21]
[21] [1992] HCA 47; (1992) 175 CLR 408; 109 ALR 30; 29 ALD 1; 16 AAR 1 at [13]; 416; 36; 9; 7
They explained their statement but, I respectfully suggest, a clearer explanation is given in the judgment of the High Court in Byrnes when Mason CJ, Gaudron and McHugh JJ said:
“ 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 …, either by proof beyond reasonable doubt that a fact or facts relied upon to support the hypothesis are not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis ….”[22]
[22] [1993] HCA 51; (1993) 177 CLR 564; 116 ALR 210; 18 AAR 1; (1993) 30 ALD 1 at [11]; 570; 215; 5; 5
The Court went on to summarise the steps that are to be followed:
“… (1) First, sub-s (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”[23]
The role of section 120(3) after the introduction of s 120A(3)
[23] [1993] HCA 51; (1993) 177 CLR 564; 116 ALR 210; 18 AAR 1; (1993) 30 ALD 1 at [13]; 571; 215; 6; 6
A. When a SoP must be made
Limiting it to the circumstances in which a veteran has operational service, s 196B(2) provides that:
“If the Authority is of the view that there is a 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
(b)-(ca)…;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e)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.”
Notes to s 196B(2) refer to other provisions defining particular terms used in the provision. Only the term “factor related to service” is relevant at the moment. It is defined in s 196B(14), which sets out the circumstances in which a factor causing, or contributing to, an injury, disease or death is related to service rendered by a person. Given the task of the RMA to make SoPs in relation to eligible war service and defence service as well as operational service, the definition is cast in terms of “service” generally.
The definition of “factor related to service” is not drafted in terms identical to those of, for example, war-caused injury or war-caused disease in ss 9(1)(a), (b) and (c) and (2) but is broadly consistent with them. Where the definition of “factor related to service” in s 196B(14) differs from the definition of, for example, a war-caused injury or war-caused disease, in that it does not contain any of the qualifications of the sort that appear in ss 9(3) to (7). That is a necessary difference for, in determining factors related to service, the RMA is concerned only with factors that it has determined can establish sufficient proximity, or causal link, between an injury, disease or death with relevant service in a medical-scientific sense. The exclusion of an injury, disease or death from the scope of the definition of a war-caused injury, disease or death is not a medical scientific issue but a decision based in policy considered relevant by Parliament. As an example, s 9(3) excludes an injury that arose out of eligible war service within the meaning of s 9(1)(b) if it arose from the veteran’s serious breach of discipline within the meaning of s 9(3).
B. The nature of the task after the introduction of s 120A(3) and the SoP regime
The addition of s 120A(3) in the VE Act does not alter the essential nature of the task that the Commission, and so this Tribunal, must undertake when the RMA has not made a Statement of Principles (SoP). It continues to specify circumstances in which, for the purposes of s 120(1), the Commission will be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that that an injury, disease or death was war-caused. Those circumstances arise if, after considering the whole of the material before it, the Commission is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran.
That is just as it was before the introduction of s 120A(3) and the task is to be carried out as before. In practical terms, s 120(3) continues to require me first to identify the hypothesis upon which a person relies to make the causal link between a veteran’s injury, disease or death and operational service.
The essential features of that hypothesis remain the same. The person claiming a pension will put forward a hypothesis that will connect the injury, disease or death with the circumstances of the particular service rendered by the veteran. That hypothesis has at its foundation propositions that lie in raising the circumstances of the person’s service with the particular injury and in raising the causal link between those circumstances and the nature of the injury. Both have their foundation in one or other of the provisions of ss 8 and 9 specifying when a death will be war-caused in the case of the former and when an injury or disease will be war-caused in the case of the latter.
That means that a hypothesis must put forward relevant circumstances of the veteran’s particular service said to be those in which the injury was suffered, disease contracted or the veteran died and which have a connection with his or her service as stipulated in s 9(1) of the VE Act. The material must raise the hypothesis on that basis and not be obviously fanciful or untenable if the hypothesis is to be reasonable. .
The hypothesis must also deal with the causal link between those circumstances with the injury suffered, or disease contracted, by the veteran from a medical-scientific point of view. As was said in Bushell, the hypothesis must not be “contrary to proved scientific facts or to the known phenomena of nature”. If, for example, the hypothesis were relying on s 9(1)(a), the hypothesis would put forward a particular occurrence or occurrences that happened while the veteran was, for example, rendering operational service as that or those from which the injury was suffered or disease contracted and that the injury or disease resulted from that occurrence.
The introduction of s 120A(3) might be thought to make s 120(3) irrelevant when a SoP applies but I do not agree that is so. My first reason is that the Note to s 120(3) states that it is “… affected by section 120A” (emphasis added); not that s 120A replaces s 120(3).[24] My second reason is that, if s 120A(3) were thought to take the place of s 120(3) when the RMA has made a SoP, the hypothesis would be reasonable simply if it were upheld by the SoP. There would be no need for the material to raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the veteran’s particular service. The hypothesis would, in effect, uphold itself in so far as the connection between the factors in the SoP and the circumstances of a veteran’s particular service are concerned as well as in relation to the medical-scientific aspects of the hypothesis.
[24] A note is part of the VE Act for it is part of the material from and including the first section of that Act to its last Schedule: Acts Interpretation Act 1901; s 13(1).
The rationale for s 120A(3) and the SoP regime leads me to the same conclusion. They are addressed to what I have referred to as the second feature of the hypothesis that is considered under s 120(3) i.e. the medical-scientific issues. That is apparent from the manner in which the RMA is required to determine them. Each SoP is addressed to a particular kind of injury, disease of death and determines, in respect of it, the factors that must, as a minimum, exist and which of those factors must be related to service rendered by the person before it can be said that a hypothesis connecting an injury, disease or death with the circumstances of that service is reasonable. Whether those factors are related to service draws in s 196B(14) of the VE Act.
That means that, in so far as the SoP applies, the medical-scientific features of the hypothesis are assessed by reference to s 120A(3). If the SoP relating to the particular kind of injury, disease or death does not uphold the hypothesis in the terms set out in s 120A(3), the hypothesis will not be reasonable and, in the terms of s 120(3), the Commission will be of the opinion that the material does not raise a reasonable hypothesis connecting the injury, disease or death of the person with the particular service of that person. It would follow in that situation that the Commission would determine under s 120(1) that the injury, disease or death was not war-caused.
In practical terms, if the hypothesis put forward by the veteran is not upheld by a SoP, which applies to the kind of injury, disease or death relied upon, the veteran cannot be successful. It does not matter whether, applying s 120(3), I am satisfied that the material otherwise raises a reasonable hypothesis connecting the veteran’s injury or disease with the circumstances of the particular service rendered by the veteran. If the relevant SoP does not uphold the hypothesis, the hypothesis will not be reasonable.
That follows from the role that SoPs are given by s 120A(3). It is a role that effectively takes the medical-scientific issues forming part of the hypothesis out of the range of matters to be considered under s 120(3) and requires them to be dealt with under s 120A(3). That is to say, when there is a SoP, there is no point in considering, from a broad medical-scientific point of view, whether the whole of the material raises a reasonable hypothesis connecting the injury, disease or death with the circumstances of any particular service rendered by a person under s 120(3). Medical-scientific issues must be an essential postulation in an hypothesis but, in so far as there is a relevant SoP, the hypothesis will only be reasonable if that SoP upholds that hypothesis. The factors set out in a particular SoP are those that the RMA has determined establish sufficient proximity between a person’s experiences during relevant service and the manifestation of the injury, disease or death to raise a reasonable hypothesis from a medical-scientific perspective.[25] Broader medical-scientific assertions falling outside the RMA’s determination will not be relevant.
[25] See Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331; 74 ALD 68; 36 AAR 484 at [16]; 337; 73; 490; Heerey, Moore and Kiefel JJ
In so far as the hypothesis relates to medical-scientific issues and the RMA has determined a SoP in relation to the kind of injury, disease or death of the veteran, s 120(3) continues to be relevant. In summary, the SoP must uphold the hypothesis in so far as it puts forward medical-scientific postulations (a matter for s 120A(3)). In so far as the hypothesis puts forward medical-scientific postulations not upheld by an applicable SoP, there is no point in considering whether the material raises the relevant circumstances of the veteran’s particular service on which that part of the hypothesis relies.
As required by s 196B(2), there is a statement in each SoP that the factor must relate to the relevant service of the veteran. It is left to the hypothesis to postulate the circumstances in which a particular factor stated in a SoP occurred and is related to the particular service of a veteran. That postulation will be in terms that are consistent with the causation provisions of ss 8 and 9. The whole of the material must raise each of the postulations made in the hypothesis on those non medical-scientific factors (and each must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous) before it can be said to raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran (a matter for s 120(3)). There is no fact finding at this stage. Section 120A(3) neither replaces s 120(3) nor make it obsolete when the RMA has made a SoP. The two work together hand in glove.
This was explained by the Full Court of the Federal Court in Repatriation Commission v Hill.[26] It set out the hypothesis relied upon by Mr Hill finding that it fitted one of the templates in the PTSD SoP and continued:
“… As the authorities show, however, in order to satisfy ss 120(3) and 120A(3) of the Act, there must be more than a hypothesis of connection that is consistent with the relevant SoP. In order to satisfy these provisions, the material must ‘raise’ or ‘point to’ such a hypothesis and this hypothesis, as raised or pointed to by the material, must fit the relevant SoP. …
…
… [T]he effect of s 120A(3) (where there is an SoP under s 196B(2)) is that a hypothesis is reasonable only if it is upheld by the SoP. Pursuant to s 196B(2), the SoP must set out ‘the factors that must as a minimum exist’ and ‘which of those factors must be related to service’. The result is that, where it applies, the SoP prescribes the essential content of what is a reasonable hypothesis, for s 120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran’s particular service. In order to satisfy ss 120(3) and 120A(3), a hypothesis relied upon by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.”[27]
[26] [2002] FCAFC 192; (2002) 69 ALD 581; Black CJ, Drummond and Kenny JJ
[27] [2002] FCAFC 192; (2002) 69 ALD 581 at [53] and [57] and 596-597
The RMA may review its SoPs from time to time as it has done in relation to spondylolisthesis, spondylosis and lumber spondylosis. In the case of Rayson and Repatriation Commission[28] (Rayson), I considered whether I could have regard to a SoP other than that in force at the time I made my decision. I concluded that a person has an accrued right to have his or her claim for a pension determined by reference to any SoP in force at the time that the claim was decided by the Commission or the VRB or any SoP in force at the time that the Tribunal made its decision but not to any SoP that was in force between those times. That conclusion was supported by the Full Court of the Federal Court in Repatriation Commission v Keeley[29] (Keeley), in relation to that in force when the Commission made its decision, and Repatriation Commission v Gorton[30] (Gorton), in relation to that in force when the Tribunal reviews that decision. The Tribunal considers first the SoP in force when it makes its decision and, if it does not uphold the hypothesis put forward, looks to the earlier SoP in force when the claim was made. In so far as my conclusion regarding the relevance of the SoP in force at the time the VRB made its decision, I rely on (and adopt as part of these reasons) my reasoning in Rayson.[31]
[28] [2011] AATA 233; (2011) 55 AAR 1; 121 ALD 311
[29] [2000] FCA 532; (2000) 98 FCR 108; 31 AAR 150; 60 ALD 401; Lee, Cooper and Kiefel JJ
[30] [2001] FCA 1194; (2001) 110 FCR 321; 33 AAR 370; 65 ALD 609; Heerey, Emmett and Allsop JJ
[31] [2011] AATA 233; (2011) 55 AAR 1; 121 ALD 311 at [114]-[161]; 33-49; 341-357
C. Section 120(1)
If I come to the view that the material does raise a reasonable hypothesis connecting the injury or disease of the veteran or the veteran’s death with the circumstances of his or her particular service in so far as s 120(3) applies and the hypothesis fits the template of the SoP within the meaning of s 120A(3), I must return to s 120(1) to decide whether I am satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination that the injury, disease or death was war-caused injury as the case may be. This is the only time at which I may make findings of fact in order to decide whether I am satisfied of that matter beyond reasonable doubt.[32]
[32] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82; 27 AAR 144; 49 ALD 193 at 97-98; 160; 206; Beaumont, Hill and O’Connor JJ
What is meant by being satisfied beyond reasonable doubt has been considered by the High Court in Keeley v Mr Justice Brooking.[33] After referring to its being a well understood standard of proof in the trial of criminal offences, Barwick CJ said:
“… To be satisfied beyond all reasonable doubt is, for the purposes of the law, to be certain.”[34]
His Honour’s statement was adopted by Gyles J in Hall v Repatriation Commission[35] when he preceded the passage with the observation that:
“Satisfaction beyond reasonable doubt is an exacting standard, particularly where it is framed in the negative.”
[33] [1979] HCA 28; (1979) 143 CLR 162; 25 ALR 45; Barwick CJ, Stephen, Mason, Murphy and Aickin JJ
[34] [1979] HCA 28; (1979) 143 CLR 162; 25 ALR 45 at [10]; 169; 48
[35] [2007] FCA 2021 at [19] and approved most recently by Flick J in Hogno v Repatriation Commission [2010] FCA 1044; (2010) 53 AAR 47; (2010) 118 ALD 1 at [36]; 58; 11
In setting out the law, I have not referred to the case of Repatriation Commission v Deledio[36] (Deledio) but have chosen to go back to the terms of the legislation and the way in which they have been interpreted or explained by the High Court and the Federal Court. I have taken that course for the passage from Deledio, to which reference is usually made, has, I respectfully suggest, taken on the status of a “standard paragraph” that appears in decisions of the Tribunal and judgments of the Federal Court. It has done so to such an extent that it is now frequently referred to as either the “Deledio test” or the “Deledio steps”. I am reluctant to do the same for it places me in the position of trying to interpret its steps and their rationale in order to apply them when I am required to apply the words of the legislation. I will give three of my reasons for concern but, first, I will set out the relevant passage from Deledio.
[36] [1998] FCA 391; (1998) 83 FCR 82; 27 AAR 144; 49 ALD 193; Beaumont, Hill and O’Connor JJ
In Deledio, a Full Court of the Federal Court said:
“… [W]e would restate the course which the Tribunal is to take in a case, such as the present, (that is, one involving a claim after the 1994 Amendments) in respect of the incapacity of 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.”[37]
[37] [1998] FCA 391; (1998) 83 FCR 82; 27 AAR 144; 49 ALD 193 at 97-98; 159-160; 206
Sometimes, the second sentence of the second paragraph is omitted when the passage is set out in judgments of the Federal Court and decisions of the Tribunal and sometimes it is not. It must be omitted for it is clearly incorrect. If the RMA has not determined a SoP in relation to the kind of injury, disease or death that is claimed to be war-caused, the matter is considered on the basis of ss 120(1) and (3) without qualification by s 120A(3).[38]
[38] See, for example, Woodward v Repatriation Commission [2003] FCAFC 160; (2003) 131 FCR 473; 200 ALR 332; 75 ALD 420; 37 AAR 424; Black CJ, Weinberg and Selway JJ referring to the discussion of Selway J in Repatriation Commission v Hancock [2003] FCA 711; (2003) 37 AAR 383 at [10]; 386. Allsop J, as he then was, adopted the conclusion in Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35; 96 ALD 536; 46 AAR 56; Lindgren, Emmett and Allsop JJ at [31]; 43; 543; 64
The second reason for my reluctance with setting out the passage from Deledio is that it can cloak the fact that the four steps are directed only to the causal factors between the veteran’s injury, disease or death and the particular circumstances of the service rendered by that veteran. It can distract attention from the findings of fact that must be made regarding the nature of the injury, disease or death and the nature of the relevant service to the Commission’s reasonable satisfaction as preliminary issues before issues of causation between the two are considered according to the standard set out in s 120(3) and, if appropriate, s 120A(3).
My third reason is that, if it is followed strictly, a decision-maker will consider under the second step whether material raises a reasonable hypothesis relating to all factors including those relevant to the connective link between an injury, disease or death and the circumstances of a person’s particular service from a medical-scientific perspective. To do so without regard to the third step and so to the relevant SoP will be a waste of time if the material is examined to see whether it raises a reasonable hypothesis on the basis of factors other than those in the relevant SoP.[39]
CONSIDERATION OF Mr SALTMARSH’S CLAIM
[39] I note that, in Re Humble and Repatriation Commission [2016] AATA 123 at [12]-[23], Senior Member Fice expressed his own concerns regarding the steps set out in Deledio. While we differ in the expression of our reasons for our concerns, I respectfully adopt his advice that it is worthwhile to heed the analysis given in Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555 at 634-636 by Gummow J as a member of the Full Federal Court of Australia. The principle stated by his Honour is succinctly stated by Lord Upjohn in Ogden Industries Pty Ltd v Lucas [1970] AC 113 at 127. That is a case to which Senior Member Fice also referred and quoted the following passage: “It is quite clear that judicial statements as to construction and intention of an Act must never be allowed to supplant or supersede its proper construction and the courts must beware of falling into the error of treating the law to be that laid down by the judge in construing the Act rather than found in the words of the Act itself.”
The injury and the operational service
In light of the agreement reached between the parties on the subject, I have already found that Mr Saltmarsh has rendered operational service within the meaning of the VE Act.
He lodged a claim for pension under Part II of the VE Act on the basis of “back Injury”. I am required to ascertain the diagnosis attributable to that back injury. That is the process of determining the nature of the disease and a formal a formal statement of it. A diagnosis is a matter of clinical assessment.[40] On behalf of Mr Saltmarsh, Ms Spencer submitted that Mr Saltmarsh’s conditions should be diagnosed as spondylolisthesis and lumbar spondylosis. Mr Rudge, on behalf of the Commission, agreed with those diagnoses but added that of spondylosis.
[40] Repatriation Commission v Warren [2008] FCAFC 64; (2008) 167 FCR 511; 246 ALR 279; 101 ALD 222; 47 AAR 461; Lindgren, Bennett and Logan JJ at [22]; 518; 284; 227; 467; per Lindgren and Bennett JJ
In his report dated 24 April 2000, Dr Russell Miller, Orthopaedic Surgeon, stated that Mr Saltmarsh has spondylolisthesis at the L5/S1 level with a pars defect. He also noted significant degenerative disease in the associated area.[41] In his first report dated 14 July 2015, Associate Professor Bruce Love concluded that Mr Saltmarsh suffers from a combination of spondylolisthesis and spondylosis at the lumbosacral level of his spine.[42] He did not resile from this opinion in his second report dated 18 September 2015[43] or in his oral evidence. In his oral evidence, Professor Love said that Mr Saltmarsh’s spondylosis of his lumbar spine was secondary to his spondylolisthesis.
[41] T documents; T9 at 27
[42] Exhibit H at 2
[43] Exhibit I
Professor Love referred to X-rays of Mr Saltmarsh’s lumbar spine revealing an L5/S1 spondylolisthesis with associated degenerative changes in the intervertebral disc and associated facet joints with unilateral lytic lesion.[44] That is consistent with the most recent X-ray report dated 12 April 2013.[45] On the basis of this evidence, I accept that Mr Saltmarsh suffers from both spondylolysis and spondylolisthesis. In view of the degenerative changes in his lumbar spine, I also accept that he suffers from lumbar spondylosis.
[44] Exhibit H
[45] Exhibit 5
The hypothesis
The hypothesis put forward to support the causal link between Mr Saltmarsh’s back conditions and the circumstances of the particular service he rendered is this. While on operational service in Vietnam the gun on a Centurion tank swung around and crushed him against the tank’s hatch as he was getting out of the driver’s compartment. As a result, he suffered a high impact trauma resulting in a back injury that may be diagnosed as lumbar spondylosis or spondylolisthesis or both. The hypothesis is consistent with the SoP, Ms Spencer submitted.
Does the material raise a reasonable hypothesis connecting the injury with the circumstances of Mr Saltmarsh’s service?
In answering the question that I have posed in the heading to this section of my reasons, I will set out the passages from each of the SoPs relied upon by Mr Saltmarsh to support his hypothesis before looking to the material to see whether it raises a reasonable hypothesis connecting Mr Saltmarsh’s injury with the circumstances of his service and whether either or both of the SoPs, which deal with the types of diseases from which Mr Saltmarsh suffers, uphold that hypothesis.
At [41] above, I referred to the principles established by Keeley and Gorton to the effect that a person has an accrued right to have his or her claim for a pension determined by reference to any SoP in force at the time that the claim was decided by the Commission or the VRB or any SoP in force at the time that the Tribunal made its decision. Therefore, this case requires that, in so far as the conditions of spondylolisthesis and spondylosis are concerned, I must have regard to SoP 5 of 2006, as amended with effect from 12 May 2010, by SoP 44 of 2010, for that was the SoP in force when the Commission made its decision. I must also have regard to SoP 59 of 2015, for that is the SoP currently in force. SoP 59 of 2015 replaced the previous SoP 44 of 2010, as amended, with effect from 30 March 2015. As there was no intermediate SoP, the issue that arose in Rayson does not arise in this case.
A slightly different issue arises, however, and it does so in relation to lumbar spondylosis. Currently, SoP 62 of 2014 has been determined by the RMA and is in force with respect to lumbar spondylosis. It came into force on 2 July 2014 and so before the VRB made its decision and after the Commission made its on 28 July 2013 and Mr Saltmarsh made his claim on 29 July 2013. Applying the principles established by Keeley in relation to SoPs that have been revoked, it follows that, if Mr Saltmarsh is not successful in relation to the condition of lumbar spondylosis when having regard to SoP 62 of 2014, he has an accrued right to have his claim determined by reference to ss 120(1) and (3) without regard to the SoP regime.
A. Spondylolisthesis and spondylolysis
A.1 The Statement of Principles: SoP 59 of 2015
The SoP that is currently in operation is that made on 27 February 2015 and numbered 59 of 2015. For the purposes of the SoP, cl 3(b) states that:
“‘spondylolisthesis’ means forward displacement of one vertebra over another: and
‘spondylolysis’ means a defect or fracture, unilateral or bilateral, involving the pars interarticularis of a vertebra. The pars interarticularis is that part of the vertebral arch that extends between the superior and inferior articular processes.”
The RMA is of the view that there is sound medical-legal scientific evidence that indicates that spondylolisthesis or spondylolysis can be related to relevant service rendered by, among others, veterans.[46] In the circumstances of this case, at least one of the factors set out in cl 6 must be related to the relevant service rendered by the person.[47] Mr Saltmarsh relies on three factors: cll 6(a), (b) and (n). They are:
[46] SoP 59 of 2015; cl 4
[47] SoP 59 of 2015; cl 5
“(a) experiencing a high impact trauma to the spine resulting in an acute fracture of the vertebral arch at the time of the clinical onset of spondylolisthesis or spondylolysis; or
(b)for spondylolisthesis only, experiencing a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra within one year before the clinical onset of spondylolisthesis; or
(c)-(m) …
(n)inability to obtain appropriate clinical management for spondylolisthesis or spondylolysis in the presence of the following:
(i)acute traumatic spondylolisthesis or spondylolysis; or
(ii)neurological manifestations; or
(iii)severe progressive symptoms warranting surgical intervention.”
Clause 6(n) applies:
“… only to material contribution to, or aggravation of, spondylolisthesis or spondylolysis where the person’s spondylolisthesis or spondylolysis was suffered or contracted before or during (but not arising out of) the person’s relevant service.”[48]
A.1 The material
[48] SoP 59 of 2015; cl 7
A.1.1 Cll 6(a) and (b): Experiencing a high impact trauma to the spine
The material in Mr Saltmarsh’s own statement points to his suffering a blow to his back while he was on patrol on operational service in Vietnam. He does not identify a date more closely than its being between 2 September 1969 and 10 September 1970. His evidence is to the effect that he had been driving a Centurion Tank and the other drivers had been directed to stop. He had been given permission to clean out the leaves and debris from his compartment when they did so. As he was alighting from the driver’s compartment, the gunner moved the gun barrel crushing him against the hatch. His evidence points to the blow to his back having arisen out of, or being attributable to his operational service. His evidence is that he lost consciousness because of the pain the he immediately experienced and was medically evacuated to Nui Dat from the site of the incident. That points to his suffering a trauma in the sense that he suffered a bodily injury produced by violence or an extrinsic agent.[49] Mr Saltmarsh said that he was off duty for approximately two weeks suffering from continuing low back pain. Professor Love’s evidence raises the proposition that the circumstances of the injury are consistent with Mr Saltmarsh’s suffering a high impact trauma.
[49] Macquarie Dictionary, revised 3rd edition, 2001, The Macquarie Library Pty Ltd (Macquarie)
A.1.2 Cll 6(a) and (b): Clinical onset
Clause 6(a) of SOP 59 of 2015 is framed by reference to the clinical onset of spondylolisthesis or spondylolysis. Clause 6(b) is framed by reference to the clinical onset of spondylolisthesis only. Clause 6(f) is concerned with lumbar spondylolisthesis and is framed by reference to the clinical onset of spondylolisthesis. The Federal Court has previously accepted without criticism the meaning given by the Tribunal in Re Robertson and Repatriation Commission[50] when it decided:
“… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”[51]
[50] [1998] AATA 127; (1998) 50 ALD 668; Senior Member Dwyer, Mr Campbell and Dr Re, Members
[51] [1998] AATA 127; (1998) 50 ALD 668 at [23]; 670 and adopted with approval in Repatriation Commission v Cornelius [2002] FCA 750 at [26] and Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331; 74 ALD 68; 36 AAR 484 at [13]-[14]; 336; 72; 488-489
This statement has been adopted in a number of more recent cases. Among them are Lees v Repatriation Commission[52] (Lees) and Kaluza v Repatriation Commission[53] (Kaluza). In Kaluza, the Full Court referred first referred to the way in which the Tribunal had come to an opinion regarding the date of clinical onset of Mr Kaluza’s anxiety disorder. The Tribunal had, the Full Court stated:
[52] [2002] FCAFC 398; (2002) 125 FCR 331; 74 ALD 68; 36 AAR 484 Heerey, Moore JJ
[53] [2011] FCAFC 97; (2011) 280 ALR 621; 55 AAR 349; 122 ALD 448; Mckerracher, Perram and Robertson JJ
“… found that there was a psychiatric condition established in 1968 but it was first treated in 1972. Because that was the date of first treatment, the tribunal held (at [38]) that 1972 was the date of onset.
This analysis does suggest that the tribunal’s approach was that the test in Lees where the Full Court (Heerey, Moore and Kiefel JJ) cited (at [13]) from the first instance judgment of Branson J in Lees where her Honour said:
[13] … there is clinical onset of disease either when a person becomes aware of some feature or symptom which enables a doctor to say that a disease was present at that time, or when a finding is made on an investigation which is indicative to a doctor of the disease being present … [Emphasis added.]
As the Full Court explained at ([16]) the purpose of the definition was to identify those symptoms (or features) which, if observed by a clinician, would warrant a conclusion that the patient suffered a generalised anxiety disorder.
…
The test for clinical onset in Kaluza is disjunctive. The analogy given for Mr Kaluza was that the person might say ‘I noticed [symptoms] in March last year but I didn’t see a doctor until July’. If a doctor can say from the onset of those symptoms in March that that indicates the presence of disease at that time, that is the date of clinical onset. The other possibility is the finding which is made on investigation when a person actually attends upon a doctor who examines the person. That is why the Full Court in Lees, explained that the purpose of the definition was to identify those symptoms or features which ‘if observed by a clinician, would warrant a conclusion’.”[54]
[54] [2011] FCAFC 97; (2011) 280 ALR 621; 55 AAR 349 at [61]-[66]; 633-634
Looking at the medical investigations and consultations conducted at the time, the earliest date on which it can be said that there is material pointing to a doctor’s making a finding that Mr Saltmarsh was suffering from all or any of the conditions was 1995. On 19 April 1995, Dr Zeimer reported, in part:
“… There is evidence of mild scoliosis of the lumbar spine convex to the right. This is associated with Grade 1 spondylolisthesis of L5 on S1. Moderate to severe anterior osteophytic lipping involving the mid dorsal vertebrae as well as small anterior osteophytes arising from the lumbar spine are in keeping with degenerative spondylitic changes. There is also evidence of moderate degenerative spondylitic changes involving the mid and lower cervical spine. No other significant bony abnormality is noted. There is evidence of some narrowing of the mid dorsal intervertebral disc spaces as well as narrowing of the L5/S1 disc.”[55]
[55] Exhibit 5
That would be the clinical date to which the material points unless there is some feature or symptom that enables a doctor to say that Mr Saltmarsh was suffering from those conditions at an earlier time. There is no material of that sort in the medical reports and notes written before Mr Saltmarsh made his claim. I will refer to them briefly.
In his report dated 6 February 1997, Dr Chan Padayachee referred to Dr Zeimer’s X-ray report. Mr Saltmarsh had been a patient at Dr Padayachee’s clinic since 1980. He reported to Dr Padayachee that he had fallen from a ladder in August 1986 and had suffered a workplace injury again on 29 March 1995. Dr Padayachee noted that Mr Saltmarsh had an “unstable joint”[56] and diagnosed his condition as having “unstable lumbar vertebra with spondylolisthesis.”[57] He thought that consistent with the nature of the 1986 injury as exacerbated by that in 1995.
[56] T documents; T5 at 15
[57] T documents; T5 at 16
Mr John O’Brien, an Orthopaedic Surgeon, reviewed an MRI on 17 October 1997. In his opinion, that MRI confirmed Mr O’Brien’s diagnosis that Mr Saltmarsh was suffering from spondylolisthesis plus a left sided nerve root canal stenosis.[58] Mr O’Brien was not asked for an opinion regarding the onset of Mr Saltmarsh’s conditions.
[58] T documents; T6 at 17
In a report dated 23 April 2000, Mr Russell Miller, an Orthopaedic Surgeon, reviewed the X-rays of Mr Saltmarsh’s thoraco-lumbar spine and the MRI of Mr Saltmarsh’s lumbar spine. He concluded that:
“… He has spondylolisthesis at the L5/S1 level with a pars defect. It is likely that this is developmental in origin although there is a possibility that it was traumatic.
There is associated degenerative disease and I note that the disc is degenerate at the L5/S1 level. There is a degree of foraminal stenosis and this may well be causing nerve root irritation at the L5/S1 level on the left side. …”[59]
Mr Miller expressed the opinion that Mr Saltmarsh had a developmental spondylolitic spondylolisthesis that was “likely this was rendered symptomatic by the event in the Army outlined above”[60] being the event when he was knocked down by the gun on his Centurion tank. Mr Milller’s opinion was based on Mr Saltmarsh’s reporting that he had no symptoms prior to that date and having some symptoms after it. His opinion points to the time at which Mr Saltmarsh’s spondylolitic spondylolisthesis became symptomatic as dating from 1969. Mr Miller did not put forward any date as to the clinical onset of the conditions. The onset of developmental spondylolitic spondylolisthes must, though, have been before 1969 if it was to be rendered symptomatic in 1969.
[59] T documents; T9 at 27
[60] T documents; T9 at 28
Professor Love wrote two reports. One was dated 14 July 2015 and the other was dated 18 September 2015 after he had been given further material available to both the parties.[61] Reading those reports overall, Professor Love was of the opinion that the cause of Mr Saltmarsh’s spondylolysis and spondylolisthesis must remain speculative. In his opinion, the condition probably commenced at birth with a congenital deformity that was spondylolysis. Mr Saltmarsh developed spondylolisthesis that commenced when he was 19 years of age and received the blow on his back from the gun. There was no radiology showing whether or not the incident had resulted in a fracture and a dislocation would be rare. In his clinical experience, however, the blow could have resulted in a fracture. In cross-examination, Professor Love added that a fracture would not be likely if Mr Saltmarsh were discharged from hospital on the same day. Had the blow resulted in a fracture, the pain would have been significant and Mr Saltmarsh would have experienced restricted movement. While the spondylolisthesis could have occurred either gradually or instantaneously, it was Professor Love’s opinion that it happened instantaneously. If that was not so Mr Saltmarsh’s condition progressed and predisposed him to degenerative change that has now been diagnosed as spondylosis.
[61] Exhibits H and I
I have already found that Mr Saltmarsh suffers from three conditions. The evidence of Mr Miller and Professor Love points to the clinical onset of Mr Saltmarsh’s spondylolysis as dating from a time before he went to Vietnam. It also points to the clinical onset of his spondylolisthesis as dating from the incident when he was hit by the gun of his Centurion tank in 1969. They base their diagnoses on the basis of Mr Saltmarsh’s description of his symptoms. As for the clinical onset of Mr Saltmarsh’s lumbar spondylosis, it dates from the X-ray evidence in 1995.
A.1.3Cl 6(a): resulting in an acute fracture of vertebral arch at the time of the clinical onset of spondylolisthesis or spondylolysis
If X-rays of Mr Saltmarsh’s back were ever taken, and he does not recall them being taken, they have not been located. I am left with secondary material to point to an acute fracture of the vertebral arch or dislocation of the affected vertebra six weeks before the clinical onset of spondylolisthesis or spondylolysis. Mr Saltmarsh described his symptoms as his experiencing “low back pain” for about two weeks once his acute back pain had subsided. Although airlifted to hospital, he was not kept in hospital and sent to his tent on the night of his arrival. He lay down in his tent and things seemed very dark to him. Over the following days, he said that he did not do anything active apart from photographing lizards. His symptoms lasted three or four weeks, he said first, or four to five weeks, he said later. He was then posted to Special Head Quarters. He did some work there. When he was posted back to his Centurion tank, he said that he needed to have help with some of the work whereas he had previously been able to do it on his own. While he could drive without difficulty, he required help from the others in the tank to help him with maintenance tasks. In particular, Mr Saltmarsh had to ask for help in order to lift the transmission covers so that he could clean the oil filters. When he needed to adjust the slack in the tracks so that they did not slip off, he had to replace the pins to the links of the tracks. That task required the use of a sledge hammer and Mr Saltmarsh had to ask others to wield it. Mr Colin Milner gave evidence that he assisted Mr Saltmarsh in those tasks.
The material does not point to Mr Saltmarsh’s having suffered an acute fracture of a vertebral arch at the time of the clinical onset of his spondylolisthesis in 1969. Professor Love put forward the possibility of his having done so but thought it unlikely in the circumstances when Mr Saltmarsh was hit by the gun on his Centurion tank. Mr Miller’s evidence does not assist Mr Saltmarsh, for he dates the onset of spondylolisthesis from a time before the events in 1969 in Vietnam. His opinion is that Mr Saltmarsh’s spondylolisthesis was made symptomatic by the events in 1969 but he does not point to Mr Saltmarsh’s suffering any fracture at the time. The material, therefore, does not raise an element that it must do if it is to be upheld by cl 6(e) of SoP 59 of 2015.
A.1.4Cl 6(b): for spondylolisthesis only, resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra within the one year before its clinical onset
The reasoning in the previous two paragraphs in relation to cl 6(a) leads me to the same opinion in so far as a fracture of a vertebral arch is concerned. Similar reasoning applies in relation to dislocation of the involved vertebra. Although the material points to Mr Saltmarsh’s suffering a high impact trauma, it does not point to its resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra. Mr Miller said that the trauma made Mr Saltmarsh’s spondylolisthesis symptomatic. Professor Love said that the onset of spondylolisthesis was instantaneous but he did not support the proposition that there was a dislocation of the involved vertebra following the incident in 1969.
A.1.5Cl 6(n): inability to obtain appropriate clinical management for spondylolisthesis or spondylolysis
Clause 6(n), as qualified by cl 7, arises on the material in Mr Miller’s report that Mr Saltmarsh’s spondylolisthesis and spondylolysis were pre-existing but made symptomatic in 1969 when he was hit by the gun. It also arises on Professor Love’s evidence that Mr Saltmarsh had pre-existing spondylolysis. Professor Love’s evidence does not point to his spondylolisthesis being pre-existing for, in his opinion, it was an immediate consequence of being hit by the gun.
Professor Love’s evidence was to the effect that, in 1969, the treatment for spondylolisthesis or spondylolysis would have been bed rest until the symptoms subsided to a degree. That may have taken time and would have been followed by a rehabilitation programme and, perhaps, a lumbar brace. In cross-examination, Professor Love explained that the treatment would have been conservative with pain relief and rest. There would have been no alternative other than to hope for time and rest to resolve the condition. It seemed that rest was beneficial and appropriate in Mr Saltmarsh’s case.
Mr Saltmarsh said in his statement that he was off duty for approximately two weeks after being evacuated to Nui Dat. He did very little during that time. His oral evidence expanded upon that a little. Mr Saltmarsh’s memory was that the doctor at Nui Dat thoroughly checked him over before he was sent back to tent on the base. He could not recall whether he had any difficulty bending or twisting but the symptoms he had lasted about three or four weeks and he thought that he was largely confined to the tent for about four or five weeks. About half way through January 1970, he was assigned to what Mr Saltmarsh called “Special Headquarters”. He had been hit by the gun some time before Christmas. Around Christmas time, Mr Saltmarsh painted a sign for Special Headquarters and, once he came good, he helped rebuild a school and did sentry duty. He found that period very lonely as nothing was happening and he had nothing to do.
What amounts to “appropriate clinical management” of a condition has been considered in cases such as Repatriation Commission v Money[62] (Money). Finn and Edmonds JJ expressly rejected the interpretation of the expression reached by Stone J on appeal. Her Honour had decided that its:
“ In my view the plain meaning of ‘appropriate clinical management’ would include not only active therapeutic treatment but also advice on the management of symptoms and other measures that would improve a patient’s quality of life even if they had no effect on the ultimate progression and outcome of a condition. If the phrase ‘appropriate clinical management’ was intended to be limited to active treatment, one might ask why the phrase ‘appropriate clinical treatment was not used in its place. Dr Waring did not give the phrase this narrow meaning. He expressed his opinion in two reports that Mr Money had not received appropriate clinical management while at the same time expressing doubt that there was any available treatment for IFA.”[63]
[62] [2009] FCAFC 11; (2009) 173 FCR 410; 107 ALD 10; Finn, Dowsett and Edmonds JJ
[63] Repatriation Commission v Money [2008] FCA 118; (2008) 100 ALD 527 at [39]; 536
In their Honour’s judgment:
“ We are satisfied that, while the ordinary meaning of ‘appropriate clinical management’ would encompass those matters to which the primary judge referred, that is not the meaning that the expression has in this context and this because of the limitation imposed on cl 5(a) by cl 6 of the SoP. The cl 5(a) inability must occasion a material contribution to, or aggravation of the IFA disease. The requirement that the inability affect the disease itself is the common thread that runs through s 70(5), s 120B(3), s 196B(3) and cl 5(a) as limited by cl 6 of the SoP. To this extent we agree with the appellant’s submissions.
However, we do not on the material before us accept that the expression ‘appropriate clinical management’ envisages only positive treatment of the disease. Both the Tribunal and Dr Waring expressed opinions consistent with the propositions that advice properly could and should be given to a patient in the proper course of providing a prognosis that he or she desist from certain activities (eg to stop smoking) or take other steps (eg to lose weight or to cease to work on submarines) as measures designed to preclude exacerbation of the disease’s inexorable progress. Let it be accepted that, on the evidence, there was no treatment recognised to be efficacious in halting the progress of the disease let alone of curing it. Nonetheless, we are satisfied that the making of prudential recommendations as to the taking of, or refraining from, courses for the purpose of thereby foreclosing the possible impacts of extraneous causes that might be likely to accelerate the progress of the disease may, in appropriate circumstances, properly be regarded as falling within appropriate clinical management for cl 5(a) purposes. In expressing this view, we agree with the primary judge’s conclusion that providing advice as part of the appropriate clinical management of a condition in relation to factors not mentioned in the SoP does not undermine the regime of SoPs.
A further consequence of our view is that, notwithstanding that there may not be an efficacious positive treatment for IFA [idiopathic fibrosing alveolitis], a failure to diagnose IFA could itself be a manifestation of an inability to obtain appropriate clinical management of IFA because it would preclude the giving of advice for the purposes we have mentioned. In such circumstances the cl 6 limitation would then be brought into play.”[64]
[64] [2009] FCAFC 11; (2009) 173 FCR 410; 107 ALD 10 at [42]-[44]; 421-422; 21-22
In a separate judgment, Dowsett J reached the same conclusion but emphasised the need to identify a particular contribution or aggravation of Mr Money’s disease, being IFA, which could be attributed to his inability to obtain appropriate clinical management. A failure to do so, would lead to a failure to identify the connection between any such contribution or aggravation and the conditions of Mr Money’s service.[65]
[65] [2009] FCAFC 11; (2009) 173 FCR 410; 107 ALD 10 at [95]; 431; 31. Although relating to defence service and so a different standard of proof, cl 5 of the SoP referred to in Money and relating to Idiopathic Fibrosing Alveolitis (IFA) was drafted in terms similar to those of cl 6(n) of SoP 59 of 2015: “The factors that must exist before it can be said that, on the balance of probabilities, idiopathic fibrosing alveolitis … is connected with the circumstances of a person’s relevant service are: (a) inability to obtain appropriate clinical management for idiopathic fibrosing alveolitis.” Just as cl 7 of SoP 59 of 2015 qualifies cl 6, cl 6 of the SoP relating to IFA qualifies cl 5(a): “Paragraph 5(a) applies only to material contribution to, or aggravation of, idiopathic fibrosing alveolitis where the person’s idiopathic fibrosing avleolitis was suffered or contracted before or during (but not arising out of) the person’s relevant service: paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.”
In the present case, there is material pointing to Mr Saltmarsh’s having either spondylolysis or spondylolisthesis and spondylolysis before he was hit by the gun during operational service in 1969. There is material pointing to his receiving treatment in Nui Dat in the form of a medical examination and of his being given an opportunity to rest over several weeks followed by duties around the camp at Nui Dat. It also points to Mr Saltmarsh’s symptoms settling during that period while he rested and then moved into those duties at the camp. The material does not point to his suffering any worsening of his condition in any sense over that period. On the contrary, it points to his symptoms reducing, although not entirely subsiding, rather than to there being a material contribution to, or aggravation of, either those symptoms or of his spondylolysis or spondylolisthesis.
Putting aside Mr Saltmarsh’s symptoms, there is nothing else in the material that points to a material contribution to, or aggravation of, his spondylolysis or spondylolisthesis apart from the incident which occurred during his operational service and in which he was hit by the gun on the Centurion tank.
It follows that the preconditions to the application of cl 6(n), which are set out in cl 7 of SoP 59 of 2015, have not been satisfied so that cl 6(n) cannot come into play. That is so even if there is material pointing to Mr Saltmarsh’s condition being described as acute traumatic spondylolisthesis or spondylolysis or to his having neurological manifestations of one or other of those conditions and to his inability to obtain appropriate clinical management for those conditions.
As it is, I note that the material points to Mr Saltmarsh’s receiving appropriate clinical management for those conditions. Professor Love referred to rest, rehabilitation and, perhaps, a lumbar brace as being regarded as the appropriate treatment at the time. The material points to Mr Saltmarsh’s having rest and a gradual return to work. No mention is made of a lumbar brace. That treatment seems consistent with Professor Love’s understanding of the treatment regime in place in 1969.
For these reasons, I do not consider that cl 6(n) of SoP 59 of 2015 upholds the hypothesis put forward on behalf of Mr Saltmarsh.
A.2 The Statement of Principles: SoP 5 of 2006
Clause 3(b) of SoP 5 of 2006 defines the terms “spondylolisthesis” and “spondylolysis” in precisely the same terms as those appearing in the current SoP 59 of 2015. The factors relied on by Mr Saltmarsh are those appearing in cll 6(a), (h) and (k). They are very similar to those in cll 6(a), (b) and (n) of SoP 59 of 2015. I have underlined the words that appear in SoP 5 of 2006 but not those of SoP 59 of 2015 and deleted those that appear in SoP 59 of 2015 but not those of SoP 5 of 2006. The factors are:
“(a) experiencing a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra within six weeks before
at the time ofthe clinical onset of spondylolisthesis or spondylolysis; or(h)
for spondylolisthesis only,experiencing a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra within the six weeksone yearbefore the clinical worsening of spondylolisthesis or spondylolysis; or(c)-(j) …
(k)inability to obtain appropriate clinical management for spondylolisthesis or spondylolysis in the presence of the following:
(i)acute traumatic spondylolisthesis or spondylolysis; or
(ii)neurological manifestations; or
(iv)severe progressive symptoms warranting surgical intervention.”
Clause 6(k) applies:
“… only to material contribution to, or aggravation of, spondylolisthesis or spondylolysis where the person’s spondylolisthesis or spondylolysis was suffered or contracted before or during (but not arising out of) the person’s relevant service.”[66]
[66] SoP 5 of 2006; cl 7
A.2.1 Cll 6(a) and (h): Experiencing a high impact trauma to the spine
I adopt the reasons I have set out at [60] above in forming the opinion that there is material pointing to Mr Saltmarsh’s having experienced a high impact trauma to his spine in 1969 when he alighted from the driver’s compartment of a Centurion tank and was hit by its gun.
A.2.2 Cll 6(a) and (h): clinical onset
I adopt the reasons I have set out at [61]-[69] above in forming to the opinion that the date of clinical onset is 1995 or a date before the incident in 1969 when Mr Saltmarsh was hit by a gun.
A.2.3Cl 6(a) and (h): acute fracture of vertebral arch or dislocation of involved vertebra
For the reasons I have given at [70]-[71] above, I am of the opinion that the material does not point to Mr Saltmarsh’s suffering an acute fracture of a vertebral arch of one of his vertebra. That leaves the issue of dislocation. Again, I adopt the reasons I gave at [72] above to form the opinion that the material does not point to a dislocation of the involved vertebra.
A.2.4Cl 6(a) (and (h)): acute fracture of vertebral arch or dislocation of involved vertebra within six weeks before the clinical onset (worsening) of spondylolisthesis or spondylolysis
The final limb of each of cll 6(a) and (h) does not come into play once I have formed the opinion that the material does not point to an acute fracture of the vertebral arch or dislocation of involved vertebra.
A.2.6Cl 6(k): inability to obtain appropriate clinical management for spondylolisthesis or spondylolysis
As I have said, there is material in the report of Mr Miller to the effect that Mr Saltmarsh’s spondylolisthesis and spondylolysis were suffered or contracted before or during, but not arising out of, his operational service. For reasons I gave at [73]-[82] in relation to cl 6(n) of SoP 59 of 2015, I am of the opinion that the material does not point to any material contribution to, or aggravation of, those conditions by reason of any inability to obtain appropriate clinical management for them. The treatment that he did receive was consistent with the treatment available at the time and appropriate. Clause 6(k) does not uphold the hypothesis.
B. Lumbar Spondylosis
B.1 The Statement of Principles: SoP 62 of 2014
SoP No. 62 of 2014 was made on 20 June 2014. For its purposes, it defines “lumbar spondylosis” as:
“… a degenerative joint disorder affecting the lumbar vertebrae or intervertebral discs with:
(i)clinical manifestations of local pain and stiffness, or symptoms and signs of lumbar cord, cauda equine or lumbosacral nerve root compression; and
(ii)imaging evidence of degenerative change, including disc space narrowing or osteophytes.
Other commonly associated features include facet joint arthritis, bone hypertrophy and spinal stenosis. This definition excludes diffuse idiopathic skeletal hyperostosis, Scheurmann’s kyphosis and bulging of an intervertebral disc in the absence of other signs of disc degeneration. Lumbar spondylosis includes spondylosis at the lumbosacral junction.”[67]
[67] SoP 62 of 2014; cl 3(b)
Before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of a person’s relevant service, at least one of the factors in cl 6 must be related to the relevant service rendered by that person.[68] Three factors in cl 6 are relied upon by Mr Saltmarsh. They are:
“(a)-(c) …
(d)having an intra-articular fracture of the lumbar spine at least one year before the clinical onset of lumbar spondylosis; or
(e)having a specified spinal condition affecting the lumbar spine for at least one year before the clinical onset of lumbar spondylosis; or
(f)-(g)…
(h)having trauma to the lumbar spine at least one year before the clinical onset of lumbar spondylosis; or
(i)-(ff)…”
[68] SoP 62 of 2014; cl 5
Clause 9 defines a number of terms. Among them are:
“‘a specified spinal condition’ means:
(a)a deformity of a joint of a vertebra;
(b)a deformity of a vertebra;
(c)-(f)…
(g)scoliosis; or
(h)spondylolisthesis
…
‘trauma to the lumbar spine’ means a discrete event involving the application of significant physical force, including G force, to the lumbar spine that causes the development within twenty-four hours of the injury being sustained, of the symptoms and signs of pain and tenderness and either altered mobility or range of movement of the lumbar spine. In the case of sustained unconsciousness or the masking of pain by analgesic medication, these symptoms and signs must appear on return to consciousness or the withdrawal of analgesic medication. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention has occurred and that medical intervention involves either:
(a)immobilisation of the lumbar spine by splinting, or similar external agent;
(b)injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c)surgery to the lumbar spine.”
B.2. The material
B.2.1Clauses 6(d), (e) and (h): clinical onset of lumbar spondylolysis
I refer to [61]-[62] above regarding the principles guiding the determination of the date of the clinical onset of an injury or disease. I also set out my reasons for forming the opinion that the material points to 1995 as the date of the clinical onset of Mr Saltmarsh’s lumbar spondylosis.
Clause 6(d): having an intra-articular fracture of the lumbar spine at least one year before the clinical onset of lumbar spondylolysis
For the reasons I have already given in relation to cl 6(a) of SoP 59 of 2015, I have formed the opinion that the material does not point to Mr Saltmarsh’s having suffered an intra-articular fracture or a fracture at all.
Clause 6(h): having trauma to the lumbar spine at least one year before the clinical onset of lumbar spondylosis
I have given reasons for forming the view that the material points to Mr Saltmarsh’s having been hit with significant force to his lumbar spine when he was hit by the gun on his Centurion tank when he was on operational service.[69] Mr Saltmarsh recounted his memories of first losing consciousness because of the immediate pain he experienced and then suffering low back pain for the following two weeks and beyond. That is material that points to his having suffered a trauma to his lumbar spine as that expression is defined in cl 9 of SoP 62 of 2014.
[69] See [60]
I have already explained why I consider that there is material pointing to the clinical onset of Mr Saltmarsh’s lumbar spondylosis in 1989.[70] That means that there is material pointing to his suffering a trauma to his lumbar spine at least one year before the clinical onset of lumbar spondylosis. That means that the material raises the hypothesis Mr Saltmarsh has put forward and that hypothesis is upheld by the cl 6(h) of SoP 62 of 2014. I am not required by s 120(3) to be satisfied, beyond reasonable doubt, that there is no reasonable hypothesis.
B.3 Section 120(1): is there no sufficient ground for determining that Mr Saltmarsh’s lumbar spondylosis is war-caused?
[70] See [61]-[69] above
As the hypothesis put forward in relation to lumbar spondylosis is upheld by cl 6(h) of SoP 62 of 2014, s 120(3), as affected by s 120A(3), does not require me to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that Mr Saltmarsh’s lumbar spondylosis was war-caused. That, however, is not an end of the matter. Section 120(1) requires me to ask and answer the following question: Am I satisfied, beyond reasonable doubt that there is no sufficient ground for determining that Mr Saltmarsh’s lumbar spondylosis is a war-caused disease? That means that I must look to the whole of the material to decide whether I am satisfied, beyond reasonable doubt, that the fact, or facts, relied upon in the hypothesis are not true or that a further fact is true and it is inconsistent with the hypothesis.
In this case, Mr Rudge has submitted that Mr Saltmarsh’s conditions, including lumbar spondylosis, were suffered in his civilian employment. The worker’s compensation claim forms and medical reports, both associated with those claims and with his treatment in relation to workplace injuries occurring in 1986 and 1995, establish that he did not suffer a prior back injury. That finding is inconsistent with a determination that his back conditions are war-caused.
I agree with Mr Rudge that there are some 40 such medical reports in the material. Prior to Mr Saltmarsh’s making informal and then formal claims to the Commission in relation to spondylolisthesis, the focus is upon his having been injured in workplace accidents and, generally, no mention is made of prior injuries. The report written by Mr PJ Phillips, an Orthopaedic Surgeon, on 14 February 1997 is an example. Mr Phillips reported that Mr Saltmarsh had, up until that time, “… never had any operations or accidents.”[71] The first reference to his being hit by the gun on his Centurion tank while on operational service appears in the report of Dr Nigel Strauss written to AMP Workcover on 28 August 1999.[72] Dr Strauss recorded that Mr Saltmarsh was not left with any residual back pain after that incident. He reported that Mr Saltmarsh had also made a good recovery from a fall of a ladder when he was 23 years of age. Mr Saltmarsh had not, though, made a good recovery from a further fall from a ladder in 1986 and had suffered intermittent back pain since then. A further incident in 1995 meant that he could no longer undertake physical work as his back pain had become significant.
[71] Exhibit 2 at 24
[72] Exhibit 2 at 84
In his claims for worker’s compensation, Mr Saltmarsh made no mention of any injury in Vietnam. On 31 December 1986, he left blank the section following the question:
“Have you previously suffered any similar injury or condition – if so give details”.[73]
[73] Exhibit D
Mr Saltmarsh’s claim dated 2 April 1995 reports his injury when lifting a cool room panel into position. The form asked him:
“Have you had any previous pain or disability in the area of your present injury/condition? If yes, please give details.”[74]
Mr Saltmarsh wrote, in part:
“Fall of [sic] ladder 31/12/86 Ralph Abattoirs. Be to chiropractor over the years At present seeing Dr Gerard Christian …”[75]
In the associated Employer Claim Report, the employer was asked whether the claim was for the recurrence of a previous injury or condition. Mrs Saltmarsh had ticked the box marked “Yes” and had referred to the injury in 1986.[76]
[74] Exhibit 2 at 4
[75] Exhibit 2 at 4
[76] Exhibit 2 at 2
The Victorian Workcover Authority required treating medical practitioners and allied health practitioners to complete forms regarding the treatment they administered for work related injuries. A Chiropractic Management Notification Report dated 27 June 1997 is an example. It referred to injuries occurring on 31 December 1986 and 29 March 1995. Dr Gerard Christian, Chiropractor, was asked to “Detail any aggravation or recurrence of any pre-existing injury including any degenerative changes which are a component of this injury.”[77] Dr Christian wrote:
“previous injury December 1985 – He fell off a ladder – he hurt his knee + low back – injury at work.”[78]
[77] Exhibit 2 at 32
[78] Exhibit 2 at 32
When Mr Miller examined Mr Saltmarsh on 13 April 2000 in relation to an assessment of his impairment, he reported on the gun incident followed by the medical evacuation, the symptoms and the return to light duties. Mr Miller reported to the Commission that Mr Saltmarsh had told him that he:
“… had ongoing intermittent ache and discomfort in the back following that accident and that his symptoms never really settled down.”[79]
[79] T documents; T9 at 25-26
It is hard to know whether Mr Saltmarsh reported the gun incident to Dr Edward Cole, Psychiatrist, in 2006 or not. The cause of Mr Saltmarsh’s back condition was not the focus of Dr Cole’s report dated 16 August 2006 but he noted:
“At one stage he slipped from a ladder and injured his right knee and back, but made uneventful recovery. He had had an arthroscopy to his left knee, but there was no history of injury. He had hurt his back a couple of times earlier on. As a child he fractured his jaw. Apart from these conditions there was no past history of significant illness or injury.”[80]
[80] Exhibit 2 at 251
Mr Miller’s reference to the gun incident is made after Mr Saltmarsh saw Dr Mary Wyatt in 1998. Mr Saltmarsh said in giving evidence that Dr Wyatt had first raised with him the likelihood that he had acquired his back condition by being hit by a heavy object and not by lifting a panel in 1995. In giving evidence in this case, Mr Saltmarsh said that he had thought immediately of the gun incident when Dr Wyatt mentioned that his being hit by a heavy object was likely to be the cause of his back condition and not dropping a panel. Dr Wyatt did not mention the issue in her report dated 21 July 2007 but nor did she ascribe a cause to Mr Saltmarsh’s back condition or nominate a date of its onset.[81]
[81] Exhibit 2 at 35-38
Mr Saltmarsh was questioned at the VRB’s hearing held on 12 February 2015 about his not making specific reference to the gun incident at an earlier time. He said:
“Right after when I first come home I went and did a bit of physiotherapy then in … Pines for my back. But I didn’t think. It’s like anything, you don’t think. You don’t sort of think to chase all these matters up and that. But – and just played up. I just felt like I was having sort of a bit of an ache from time-to-time. But only when it – sort of when you did a lot of heavy work, I suppose, which may have sort of done it. But when I did the accident in ’86, that sort of put the cat among the pigeons, sort of thing.
…
Well, I didn’t even think to write that down when – you know where you – I think I put down I had a bit of hayfever and sinus at the time from the dust and the different things with the driving and that. And then I didn’t think I’d have to put down that, like, I hurt myself and got dusted off, because I thought the records would be there. But if you have a look – well, you can’t have a look at the records because they’re not there, because I was in hospital a couple of other times during my service, and that’s not even there either.”[82]
[82] Exhibit 3 at 7-8
While Mr Saltmarsh agreed at the hearing that he should have mentioned his earlier back injury in making his worker’s compensation claims, the fact that he did not do so does not lead to the conclusion that he was necessarily at fault in not doing so or that his not doing so reflects on the truth of the claims he makes regarding the gun incident and any symptoms he experienced following that incident. I say that because worker’s compensation claims and medical assessments by specialist medical practitioners are formal events conducted in a certain amount of time and largely by question and answer. Much depends on the questioner and the person being questioned understanding each other and gaining that understanding in a very limited time. That means that much depends on the way in which the questions are framed as to whether they direct the mind to relevant information. Much depends on the person being questioned understanding what is wanted. Taking the claim form that Mr Saltmarsh completed in 1986 as an example, he was asked whether he had “… previously suffered a similar condition …”. If I assume for the moment that he had in mind the gun incident in 1969, the question requires him to consider whether he had suffered a “similar injury”? That requires an understanding of the injury, he suffered in 1969 and compare it with the injury for which he was then claiming worker’s compensation. Had the claim form asked him whether he had ever been injured in the same part of his body as that where he now claimed to be injured, Mr Saltmarsh could be criticised for not writing about the gun incident. It is more difficult to be critical when the form asks him to make a judgment on the nature of his injuries.
Mr Saltmarsh’s evidence as to his suffering from a back injury in 1969 is supported by the statement of Mr Peter Rosemond CSC OAM[83]. He had been the commander of one tank and Mr Saltmarsh the driver of another. Mr Rosemond knew of two incidents of drivers’ being crushed by the gun barrel against the hatches of their tanks. He recalled the name of one driver and had a clear recollection of the event. He did not have a clear recollection that the other driver was Mr Saltmarsh but believed that it might well have been. He recalled that both drivers were absent from work for a week or two. Mr Rosemond’s experience was that no medical records had been kept of the medical treatment he received at Nui Dat. Records were kept at the hospital at Vung Tau and only kept at Nui Dat if a person suffered a major injury requiring hospitalisation.
[83] Exhibit G
Mrs Pamela Saltmarsh gave evidence supporting her husband’s recollection of the pain he suffered from his back on his return from Vietnam. She had met him shortly before he had been posted to Vietnam and gone out with him a couple of times. She began going out with him again on his return before their marriage in 1971.
Mrs Saltmarsh recalled her husband’s telling her about the gun incident and his back pain at some time around the time of their marriage. She recalled that she had told her husband’s sister that she should take him to a chiropractor. Mrs Saltmarsh, her sister in law and her sister in law’s boyfriend all accompanied Mr Saltmarsh when he consulted a chiropractor about his back pain. She said that her husband consulted a chiropractor again. Within a couple of months of their being married and so towards the end of 1971 or early in 1972, Mrs Saltmarsh said, she would wake up in bed to find that her husband was resting his leg on her hip. He told her that it relieved the pressure on his back.
The pain continued, Mrs Saltmarsh said. She could tell its progression by reference to what he could do for the children. When their first son was born in 1971, her husband could make things for him but he would have to kneel as he could not bend down. Her husband could not give any of the children piggy back rides and they were left to her. He would tell her that to do so hurt his lower back. Her husband had possibly taken pain killers since 1972.
Mrs Saltmarsh did not recall having lodged a worker’s compensation claim following her husband’s fall in 1986. I have already referred to the claim that he did lodge. His evidence that he consulted a physiotherapist is supported by two receipts for treatment dated 19 and 27 May 1987.[84]
[84] Exhibit B
The evidence of Mrs Saltmarsh is consistent with that of Mr Milner as to the activities that Mr Saltmarsh could, and could not, do from a time postdating her husband’s return from service. It is consistent with his having suffered from a back condition. The fact that there is no reference to the incidents in most of the worker’s compensation documents does not lead me to be satisfied beyond reasonable doubt either that the gun incident did not occur or, that if it did occur, it did not occur as he said. It does not lead me to conclude, beyond reasonable doubt, that he did not suffer a trauma to his back at the L5/S1 level which is the site of his lumbar spondylosis. They are facts essential to cl 6(h) of SoP 62 of 2014. It follows that I must determine that Mr Saltmarsh’s lumbar spondylosis is war-caused.
Decision
For the reasons I have given, I:
(1)set aside the decision of the Commission dated 15 August 2013 and affirmed by a decision of the VRB dated 12 February 2015; and
(2)substitute a decision that Mr Saltmarsh is suffering from lumbar spondylosis and that it is a war-caused disease.
I certify that the one hundred and fifteen preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ………..............[sgd]......................................
Associate
Date of Hearing 27 and 28 January 2016
Date of Decision 24 March 2016
Counsel for the Applicant Ms F Spencer
Solicitor for the Applicant Mr M Jorgensen
Williams WinterAdvocate for the Respondent Mr K Rudge
Advocacy Section
Department of Veterans’ Affairs
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