Saltmarsh v Repatriation Commission

Case [2018] FCA 28

FEDERAL COURT OF AUSTRALIA

Saltmarsh v Repatriation Commission [2018] FCA 28

Appeal from: Saltmarsh v Repatriation Commission [2016] AATA 178
File number: VID 326 of 2016
Judge: MURPHY J
Date of judgment: 29 January 2018
Catchwords: DEFENCE AND WAR – Veterans’ entitlements – application for a pension and medical treatment under the Veterans’ Entitlements Act 1986 (Cth) – whether the Tribunal failed to consider the hypothesis the applicant advanced and/or which was pointed to or raised by the evidence – whether the Tribunal failed to have regard to the whole of the material before it or engaged in impermissible fact finding –Tribunal decision set aside and remitted for hearing
Legislation:

Administrative Appeals Tribunal Act 1975 (Cth)

Veterans’ Entitlements Act 1986 (Cth)

Cases cited:

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Collins v Administrative Appeals Tribunal (2007) 163 FCR 35; [2007] FCAFC 111

Dixon v Repatriation Commission (1999) 59 ALD 315; [1999] FCA 582

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26

Ellis v Repatriations Commission [2014] FCA 847

Grant v Repatriation Commission (1999) 57 ALD 1

Hill v Repatriation Commission (2005) 218 ALR 251; [2005] FCAFC 23

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; [2010] HCA 41

Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391

Repatriation Commission v Gorton (2001) 110 FCR 321; [2001] FCA 1194

Repatriation Commission v Money (2009) 173 FCR 410; [2009] FCAFC 11

Summers v Repatriation Commission (2012) 293 ALR 86; [2012] FCAFC 104

Summers v Repatriation Commission (2015) 230 FCR 179; [2015] FCAFC 36
Date of hearing: 30 November 2016
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 56
Counsel for the Applicant: Ms F C Spencer
Solicitor for the Applicant: Williams Winter
Counsel for the Respondent: Ms C Dowsett
Solicitor for the Respondent: Australian Government Solicitor

ORDERS

VID 326 of 2016
BETWEEN:

JOHN SALTMARSH

Applicant
AND:

REPATRIATION COMMISSION

Respondent

JUDGE:

MURPHY J

DATE OF ORDER:

29 JANUARY 2018

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.That part of the Tribunal’s decision that found that the Applicant’s spondylolisthesis L5/S1 is not a war-caused disease be set aside and remitted to the Tribunal, differently constituted, for determination according to law.

3.The Respondent pay the Applicant’s costs.

4.If either party seeks a different costs order it has liberty to apply in that regard, within seven days.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

  1. The applicant, John Saltmarsh, served in the Australian Army from 19 June 1968 to 20 July 1971, including by rendering operational service from 3 September 1969 to 10 September 1970 during the war in Vietnam.  On 29 July 2013 he lodged a…

Continue reading Saltmarsh v Repatriation Commission

Sign in free to access the full text

Details
AGLC
Saltmarsh v Repatriation Commission [2018] FCA 28
Case
[2018] FCA 28
Decision Date

CaseChat Overview and Summary

In the case of Saltmarsh v Repatriation Commission, the appellant, Mr Saltmarsh, appealed against a decision of the Veterans' Review Board, which was constituted as the Veterans' Entitlements Tribunal, that he was not entitled to a war-caused disease pension in respect of his spondylolisthesis L5/S1. The primary legal issue before the court was whether the Tribunal erred by failing to consider the hypothesis Mr Saltmarsh advanced and/or which was pointed to or raised by the evidence, and whether the Tribunal failed to have regard to the whole of the material before it or engaged in impermissible fact-finding. The court found that the Tribunal had indeed erred in its consideration of the evidence, particularly in relation to the hypothesis connecting Mr Saltmarsh's spondylolisthesis L5/S1 with his operational service.

The court held that the Tribunal did not undertake its statutory task under section 120(3) of the Veterans' Entitlements Act 1986 (Cth), as affected by section 120A(3) of the same Act. It was the court's view that the Tribunal incorrectly identified the hypothesis Mr Saltmarsh advanced and failed to address it. Furthermore, the court found that the Tribunal did not consider the whole of the material before it, which was a requirement under the legislation. The court concluded that the Tribunal's decision was flawed and that the appeal must be allowed, with the decision being set aside and remitted to the Tribunal, differently constituted, for determination according to law.

The final orders of the court were that the appeal be allowed, that part of the Tribunal's decision finding that the applicant's spondylolisthesis L5/S1 was not a war-caused disease be set aside and remitted to the Tribunal, differently constituted, for determination according to law, and that the respondent pay the applicant's costs. Additionally, if either party sought a different costs order, they had liberty to apply within seven days. The case highlights the importance of the Tribunal properly considering all material evidence and hypotheses presented in a claim for veterans' entitlements.

Orders

Orders of the court

1. The appeal be allowed.

2. That part of the Tribunal’s decision that found that the Applicant’s spondylolisthesis L5/S1 is not a war-caused disease be set aside and remitted to the Tribunal, differently constituted, for determination according to law.

3. The Respondent pay the Applicant’s costs.

4. If either party seeks a different costs order it has liberty to apply in that regard, within seven days.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

The appeal centrally concerns whether the Tribunal fell into error by failing to address the hypothesis Mr Saltmarsh advanced connecting his spondylolisthesis L5/S1 with his operational service. For the reasons I explain I am satisfied that the Tribunal incorrectly identified the hypothesis Mr Saltmarsh advanced and as a result failed to address it. The Tribunal did not undertake its statutory task under s 120(3) as affected by s 120A(3) of the Veterans Act. The appeal must be allowed and the decision remitted to the Tribunal, differently constituted, for determination according to law.THE FACTUAL BACKGROUND Mr Saltmarsh was born on 17 May 1950. Shortly before Christmas 1969, while serving in Vietnam, he was on patrol as a Centurion tank driver. As he was climbing out of the driver’s compartment, the gunner moved the tank’s gun and it struck his lower back forcefully and knocked him from the tank to the ground. Mr Saltmarsh’s evidence was that the gun turret traverses “very, very fast” and that there is a lot of weight in the gun barrel and breech. He described the force with which the gun struck him as “very high”. He suffered severe low back pain and he was in and out of consciousness. He woke up in a hospital bed having been medically evacuated by helicopter to Nui Dat base, but he has no memory of that trip. In an undated statement filed with the Tribunal Mr Saltmarsh said that he was off duty for about two weeks after he was medically evacuated to Nui Dat and he expanded upon that in his oral evidence. The Tribunal found (at [75]) that after Mr Saltmarsh was checked by a doctor at Nui Dat base he was sent to a tent on the base where he was largely confined for about four or five weeks, and that half way through January 1970 he was assigned to Special Headquarters. The Tribunal found that, at around Christmas time, Mr Saltmarsh painted a sign for Special Headquarters and, once he “came good”, he helped rebuild a school and did sentry duties. Mr Saltmarsh gave evidence that, about two weeks after a disciplinary incident in which he was involved on 14 February 1970, he was transferred from Special Headquarters to 1 Troop and he resumed his duties as a tank driver. It is uncontentious that Mr Saltmarsh resumed duties as a tank driver but the date he did so is not completely clear. The evidence which Mr Saltmarsh gave which is relevant to the narrow issue in the appeal is brief. He said that upon his resumption of duties as a tank driver:(a)he was required to service the tank which he found a bit hard, including that it was “very hard” to lift the transmission covers, but that one of the tank gunners, Colin Milner, “helped out a few times”;(b)he found that he needed Mr Milner’s help because he did not have the strength to lift the transmission covers and it caused him pain;(c)he also had difficulties adjusting the tank tracks, which required taking pins out of the tracks and using a sledge hammer. He found that job very hard and he did not have the strength to swing the sledge hammer; and(d)after he returned to normal duties he had ongoing problems with his back, which continued after his discharge from the Army.His evidence was not completely clear as to how much of the heavy work associated with the role of tank driver he personally undertook upon his return to duty, and how much of it was undertaken by Mr Milner or other members of the tank crew.

Evidence

Evidence Before The Court

In his oral evidence Mr Milner said that:(a)it was the tank driver’s responsibility to check on the maintenance of the tank, but it was usual for other members of the crew to assist the driver when he needed it;(b)sometimes Mr Saltmarsh was able to perform his duties quite well, but most of the time he needed help with the heavier parts of general maintenance;(c)Mr Saltmarsh complained that when he was using the sledge hammer he suffered bad back pain;(d)to lift the engine covers you need two people;(e)the transmission covers are different to the engine covers. They are on a hinge but they are extremely heavy. Normally you need two people to lift them;(f)it was part of the tank driver’s normal tasks to lift the engine covers and to do the sledge hammering, but Mr Milner took his place doing the lifting and using the sledge hammer.He was not completely clear in his evidence as to whether he undertook all of the heavy work associated with the tank driver role, or whether he only undertook it when Mr Saltmarsh requested assistance because of his back pain.The medical evidence An orthopaedic surgeon, Mr Russell Miller, who was one of Mr Saltmarsh’s treating doctors, provided a report dated 24 April 2000. It stated:Mr Saltmarsh has a problem with his lumbar spine. He has a spondylolisthesis at the L5/S1 level with a pars defects. It is likely this is developmental in origin although there is a possibility that it was traumatic.…It is likely, in my view, that this man had a developmental spondylolitic spondylolisthesis and it is likely this was rendered symptomatic by the event in the Army outlined above. I note he had no symptoms prior to that. It is likely that the accident in 1969 precipitated symptoms in relation to what was a pre-existing, but asymptomatic spondylolitic spondylolisthesis. According to his history, he had no symptoms prior to that and he has had at least some ongoing symptoms following that event. It is also likely that the other work events have contributed to the evolution of his back condition.In summary therefore, I believe that the Army accident in 1969 precipitated symptoms in relation to a pre-existing problem and the other two accidents aggravated that pre-existing problem. Associate Professor Bruce Love, consultant orthopaedic surgeon, provided a report dated 14 July 2015. It stated:I am of the view that this man’s current observed condition is a consequence of the incident which occurred when he was 19 years of age and was crushed when emerging from the gun turret. It is quite possible that the lytic lesion that can now be observed in the pars interarticularis was present at that time but there is no evidence of this. I do conclude however that the force that he described could easily have caused the condition itself or caused an aggravation of the condition but there is no way of knowing which of these two events were the more probable.I therefore conclude that this man has a combination of spondylolisthesis and spondylosis at the lumbosacral level of the lumbar spine and I conclude that these findings are a consequence of the incident described when he was a tank driver at 19 years of age.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Clause 9 of the SoP defines “acute traumatic spondylolisthesis or spondylolysis” to mean “spondylolisthesis or spondylolysis arising as a direct result of a severe, high energy trauma to the spine”.THE OPERATION OF SECTION 120(3) AS AFFECTED BY SECTION 120A(3) The proper approach to the operation of s 120(3), as affected by s 120A(3) is well-established. The four step process laid down by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82; [1998] FCA 391 (Deledio) at 97-98 has been applied in numerous single judge and appellate decisions. It provides:(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 (II)…(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. This four step process should not though be substituted for the statutory test and it is not to be applied mechanically: Hill v Repatriation Commission (2005) 218 ALR 251; [2005] FCAFC 23 (Hill) at [80] and [85] (Wilcox, French and Weinberg JJ). In Collins v Administrative Appeals Tribunal (2007) 163 FCR 35; [2007] FCAFC 111 (Collins) at [48], Allsop J as his Honour then was, with whom Lindgren and Emmett JJ agreed, usefully set out the following settled principles: (a)The Tribunal must consider the whole of the material before it: s 120(3).(b)The Tribunal is to form an opinion whether the material raises a reasonable hypothesis connecting the injury, disease or death with the circumstances of service: s 120(3).(c)The formation of that opinion involves consideration as to whether a relevant SoP upholds the hypothesis: s 120A(3).(d)At the stage of formation of the opinion in (b), involving the consideration in (c), no question of fact finding arises: Deledio 83 FCR at 97.(e)The formation of the opinion involves the reaching of a factual conclusion: Bull 188 ALR at 760-62 [17] to [25] and involves the assessment of all the material before the Tribunal, but not the finding of facts or rejecting material: Bull 188 ALR at 761 [22].