Saunders and Repatriation Commission

[2001] AATA 727

DECISION AND REASONS FOR DECISION [2001] AATA 727

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          N2000/692

VETERANS' APPEALS  DIVISION       )          
           Re      RICHARD GEORGE SAUNDERS          
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Ms G Ettinger Senior Member Dr P Lynch Member     

Date21 August 2001

PlaceSydney

Decision      The Administrative Appeals Tribunal affirms the decision of the Repatriation Commission dated 19 March 1998 as affirmed by the Veterans' Review Board on 4 April 2000 and decides that Mr Richard George Saunders' cervical spondylosis with intervertebral disc lesion was not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
  ..............................................
  Ms G Ettinger
  Senior Member
CATCHWORDS
Veterans' entitlements - eligible service - whether cervical spondylosis followed intervertebral disc lesion claimed to have been caused in aircraft accident – no documentary evidence of aircraft accident – application of s 119 re paucity of records - Respondent and Tribunal accepted evidence aircraft landing incident had occurred – Tribunal not satisfied aircraft incident caused either intervertebral disc lesion or permanent ligamentous instability - decision affirmed

LEGISLATION
Veterans Entitlements Act 1986 ss 9, 120(4), 120A

CASE LAW
Repatriation Commission v Keeley (2000) 98 FCR 108

STATEMENT OF PRINCIPLES
Statement of Principles Instrument No.131 of 1996 as amended by No.93 of 1997  concerning Intervertebral Disc Prolapse
Statement of Principles Instrument No.162 of 1996 concerning Cervical Spondylosis

REASONS FOR DECISION

21 August 2001       Ms G Ettinger  Senior Member  Dr P Lynch  Member                 

1. The decision under review before the Administrative Appeals Tribunal, ("the Tribunal") was the decision of the Repatriation Commission dated 19 March 1998 (T21) as affirmed by the Veterans' Review Board of 4 April 2000 (T24) which found that Mr Richard George Saunders' cervical spondylosis with intervertebral disc lesion was not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act").

2. The Applicant, Mr Saunders, was represented by Ms J Buss, solicitor of the Legal Aid Commission, and the Respondent by its advocate, Ms P Hook.

3. The parties agreed that should the Applicant be successful, the earliest date of effect in this matter was 6 January 1998, and that the matter of assessment would, if applicable, be referred to the Respondent.
   ISSUE BEFORE THE TRIBUNAL

4. The issue before the Tribunal was whether:

   · Mr Saunders' condition of cervical spondylosis with intervertebral disc lesion was war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.

LEGISLATION

1. The relevant legislation in this matter was the Veterans' Entitlements Act 1986, in particular sections 9, 120A and 120(4). Section 9 provides:

   "9      War-caused injuries or diseases

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

   …

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

   …"

2. As Mr Saunders had served on eligible service between 25 March 1944 and 25 July 1945 during World War II, the standard of proof applicable to assess whether his condition of cervical spondylosis with intervertebral disc lesion was war-caused was that of reasonable satisfaction, applying section 120(4) of the Act. The same standard applies to assessment. As relevant section 120(4) follows:

   "120      Standard of proof

   …

   (4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

   Note:    This subsection is affected by section 120B.

   …"

3. In the review of Mr Saunders' application, the Tribunal was bound to apply section 120B of the Act because his application was lodged after 1 June 1994. Hence, the Repatriation Medical Authority ("RMA"), Statements of Principles ("SoPs") produced pursuant to section 196B of the Act applied.

   "120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles

   (1)This section applies to any of the following claims made on or after 1 June 1994:

   (a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;

   (b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.

   Note 1:  Subsection 120 (4) is relevant to these claims.

   Note 2:  For hazardous service and member of the Forces see subsection 5Q (1A).

   (2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:

   (a)has determined a Statement of Principles under subsection 196B (3) in respect of that kind of injury, disease or death; or

   (b)has declared that it does not propose to make such a Statement of Principles.

   (3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

   (a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

   (b)there is in force:

   (I)     a Statement of Principles determined under               subsection 196B (3) or (12); or

   (ii)     a determination of the Commission under subsection 180A(3);

   that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service."

4. The Tribunal noted that the relevant SoP with regard to cervical spondylosis at the time of the Repatriation Commission decision of 19 March 1998, was Instrument No.162 of 1996.  However, by the time of the Veterans' Review Board decision dated 4 April 2000, Instrument No.162 of 1996 had been revoked by Instrument No.57 of 1998,  which was later revoked by No.32 of 1999.  Instrument No.32 of 1999 was the SoP in force as at 4 April 2000, and the Applicant's claim was considered by the Veterans' Review Board, applying this SoP.

5. The Tribunal was mindful that it was bound by the Federal Court decision in Repatriation Commission v Keeley (2000) 98 FCR 108, and required to take into account Mr Saunders' accrued rights.

6. In this respect, the Tribunal noted the further submissions by the parties in respect of the applicable SoPs to Mr Saunders' circumstances. Ms Buss in her submissions dated 19 April 2001 on behalf of the Applicant, stated that:

   "… as the law now stands, the Tribunal is bound to have regard to the current SoP unless that/those in force when the Commission's decision was made is/are more beneficial. That means that, in effect, the Tribunal chooses whichever of the SoPs in place at the time of the Commission's decision or at the time the Tribunal makes its decision is more beneficial."

7. Ms Buss further submitted for the Applicant that:

   "Based on his understanding of the facts, the scenario submitted by the Applicant was: plane crash ? high positive G forces ? IVD prolapse ? cervical spondylosis. This relies on cervical spondylosis SoP 162 of 1996, factor 5(g), as being more beneficial. It is more beneficial because it requires reference to the IVD prolapse SoP which does not contain, in its reference to high positive G forces … the requirement for minimum numbers of days of ensuing symptoms that are contained within the cervical spondylosis SoP 32 of 1999, factor 5(j)."

8. Ms Hook in her written submission dated 26 April 2001 on behalf of the Respondent, stated that:

   "The Respondent's instructions in relation to Repatriation Commission policy are, that following the Full Federal Court decision in Keeley, the applicable SoP is that in place at the time of the primary decision …
   In relation to the cervical spondylosis SoP, it is submitted that the SoP in place at the time of the primary decision is applicable because it is "more beneficial" than the current SoP."

9. The Tribunal took into account the parties' submissions and Keeley (supra), and decided that the applicable SoP in respect of the Applicant's condition of cervical spondylosis was the SoP in force at the time of the Repatriation Commission's decision on 19 March 1998, namely, Instrument No.162 of 1996 concerning Cervical Spondylosis. The Tribunal was mindful that, as noted above, the parties' submissions recognised SoP No.162 of 1996 as the more beneficial of the SoPs available.

10. In respect of the Applicant's claimed condition of intervertebral disc lesion, the applicable SoP in force at both the time of the Repatriation Commission decision dated 9 March 1998, and the Veterans' Review Board decision dated 4 April 2000 was SoP Instrument No.131 of 1996 as amended by No.93 of 1997 concerning Intervertebral Disc Prolapse.  These were therefore the applicable SoPs.
    EVIDENCE BEFORE THE TRIBUNAL

11. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, ("the T-Documents") and the following exhibits:
    ITEM  DATE NAME
    Statement of the Applicant Together With Attachments          9 March 2001           Exhibit A1     
    Medical Report of Dr R Newcombe         28 February 2001    Exhibit A2     
    Report of Mr J Hebron       26 February 2001    Exhibit A3     
    Report of Dr D Newman     29 January 2001     Exhibit A4     
    Report of Mr R Bennett     27 July 2000 Exhibit A5     
    Report of Mr R Bennett     24 October 2000     Exhibit A6     
    Medical Report of Dr W Saw        24 May 1980 Exhibit A7     
    Pages from Applicant's Log Book 1945   Exhibit A8     
    T-Documents T1 - T28 Exhibit R1
    Report of Mr B O'Keefe and attachments           18 December 2000  Exhibit R2     
    Additional Documents from the Departmental File       12 March 2001        Exhibit R3     
    Medical Records and Treatment Notes of Dr L Waters            Exhibit R4     

1. Oral evidence was given by the Applicant, Mr Richard Saunders and Dr Adam Newcombe, Neurosurgeon.
   EVIDENCE OF THE APPLICANT - MR RICHARD GEORGE SAUNDERS

2. Mr Saunders, whose date of birth was 21 January 1926, and whose statement of 9 March 2001 with attachments was Exhibit A1, gave oral evidence before the Tribunal. He said that he left school after matriculation and commenced work in a bank. He then enlisted in the Royal Australian Air Force ("RAAF") on 24 March 1944 at the age of 18 years, and after initial training, was posted to Number 10 Elementary Flying Training School ("EFTS") at Temora in New South Wales.

3. Mr Saunders recalled that his experiences as a student pilot were quite stressful, and detailed the long hours and demanding days and nights spent in training sessions.  Mr Saunders told the Tribunal that as a student pilot he was involved in a crash landing of a Tiger Moth on 1 February 1945 (a date he deduced from consulting his log book), and described how it happened.  The Tribunal obtained a transcript of the hearing and quotes as follows:

   "On the final approach leg my instructor said that he would take over … that he would effect a precautionary landing as he was in a hurry to – for me to do another circuit before my allotted hour was up. Having done so I took my hands and feet off the controls and I relaxed it and lent back on the left hand side.
   …
   The next thing I knew was this almighty thump and my head went down between my knees and I can remember the compass box … that instrument at the bottom of the instrument panel which just out from the instrument panel, and I can remember that flashing by, that I just missed it."

4. Mr Saunders said that although he was wearing a full harness/seatbelt at the time of the accident, he was able to put his head down near his knees. He explained that:

   "… you had sufficient room to move when you slackened your harness off … the two straps, sort of, moved I suppose about that far from being very tight to being very loose and you had enough movement to move around the cockpit and bend and do whatever but then again on the impact the weight of your upper body would've probably taken up all the slack of that and you could have moved inside the harness if you follow – down like that."

5. Mr Saunders said on exiting the aircraft, he observed that the undercarriage had collapsed, and that there was a 15 foot scar along the ground where the tail of the aircraft had hit the ground.

6. Mr Saunders said that he either sat or lay down for a time before going to the flight hut for an interview on the circumstances of the crash landing. Mr Saunders informed the Tribunal that following this interview:

   "Flight Lieutenant Morely, the Flight Commander, came out and told me that it had been decided the accident wouldn't be recorded in the flight records. It would not be recorded in Flight Lieutenant Mile's log book, nor would it be recorded in my book. That I wasn't to discuss it with any other personnel, and that I didn't appear to be injured, there was no need for me to go to the MO."

7. When asked how the repairs to the Tiger Moth, particularly in light of the collapsed undercarriage, were concealed, Mr Saunders said that:

   "I have no idea. It was covered up somehow or other … Flight Lieutenant Morely must have had a number of red entries in his log book."

8. When questioned about his symptoms following his instructor releasing the hood to his cockpit and then alighting from the aircraft, Mr Saunders said that:

   "Well, at that stage I found that I couldn't walk properly, that I was giddy. My legs didn't seem to function as my mind was trying to command them to do, and I just had a general feeling of everything being out of kilter."

9. He added that:

   "I staggered around probably over an area of two or three yards trying to regain my balance before I moved off … And I suppose that's what I recognise now is a pretty severe case of shock, everything – and my body just didn't seem to be functioning in the manner it should be. I was disorientated. I was giddy and, you know, it was very upsetting, it was my first experience in what was a bad accident …"

10. The Tribunal was mindful that Mr Saunders, when asked directly about the symptoms involving his neck, did not refer to his neck, but replied as follows: "… I had difficulty in walking a straight line and that was fairly obvious."

11. Mr Saunders also said in his oral evidence, that following the crash landing, he rested for a period before travelling 10 to 15 miles by truck to the base at Temora to attend classes in the afternoon. He also said that he proceeded to fly that night, completing two hours of night flying training.

12. In this respect, the Tribunal noted that the flight log book, photocopies of which were before the Tribunal as Exhibit A8, recorded that Mr Saunders flew on 3 February 1945 and again on 5 and 6 February 1945.  The information before the Tribunal indicated that the Applicant finished the flying training course on 15 February 1945, and that he had completed five days of four hours per day in flying training, which included instruction in aerobatics.

13. Mr Saunders said that he finally attended the Regimental Aid Post ("RAP") on 5 February 1945 (Exhibit R3/35). He said:

    "I went for about three or four days and the condition was unchanged and on the fifth of February I decided that it had gone far enough and I reported to the on-sick parade, and that's reported – recorded on my card …
    And in view of what I had been instructed by Flight Lieutenant Morely, the Flight Commander, I told the medical officer that I suffered from diarrhoea and giddiness. Now the diarrhoea was a – sort of – not a subterfuge but not quite true that I – I had diarrhoea, but the giddiness was present all the time, and that was a genuine complaint."  

14. When asked why he said that he had suffered from giddiness for a couple of weeks, Mr Saunders stated:

    "I didn't want to get in trouble for disobeying an order … If you had any misdemeanour, even a slight misdemeanour, they took it as an opportunity to remove you from the course … I was a good pilot and I wished to proceed and get my wings  … and I was prepared to subjugate anything in my physical – in the physical sense to achieve that."

15. The Tribunal noted with interest that Dr Newcombe, Mr Saunders' treating neurosurgeon who gave oral evidence by telephone link during the Hearing, commented as follows when informed that Mr Saunders' report of giddiness and diarrhoea in February 1945 was fictitious:

    " … that may be. I've been a medical officer myself in the services and had my commanding officer tell me what to say – a few things."

16. Mr Saunders agreed in cross-examination that the giddiness did not date back a couple of weeks as he had told the RAP on 5 February 1945, but dated from the accident with the Tiger Moth.

17. When asked in cross-examination whether he had had much space in the cockpit of the Tiger Moth, Mr Saunders replied, "very little". He also added that as he was quite tall, when seated in the cockpit, his head was level with the windshield and as a result he used to "get a fair bit of wind".

18. Ms Buss asked:

    "Now from that time onwards what sorts of symptoms did you have, what sorts of problems did you have with your neck?"  Mr Saunders replied: "Well, I had difficulty in walking a straight line and that was fairly obvious.
    …
    I still felt very much out of sorts for the rest of the course, but we didn't fly every day." 

19. In response to the comment in his statement that "pain was overshadowed by my giddiness and balance problems", Mr Saunders said that his body felt out of tune, analogising his condition to a car engine that was not functioning well.

20. When asked by Ms Buss to explain that statement, Mr Saunders added:

    "Well it was a very sort of distant hurting situation where as I tried to explain it the analogy of the engine being out of tune. That's how my body felt. …
     It was disconcerting that you just couldn't do everything that you set out to do. That you felt very very uncomfortable, and that any pain that was there would have been secondary to the physical other – physical and probably mental disturbance that occurred as a result of the accident." 

21. Ms Buss asked Mr Saunders:

    Ms Buss: "Now, after for the rest of your service in the years immediately afterwards, did you have any problems with your neck?" 
    Mr Saunders: "Yes, well I didn't recognise it at the time, I do now, but shortly after we finished at Temora, we were sent on a week's leave … and I woke one morning at dawn and found that I was paralysed from the neck down."

22. Mr Saunders told the Tribunal that he regained movement in his limbs by mid-morning of that day and did not report the condition as he did not want it to interfere with his leave.  The Tribunal noted that the date recorded was 19 February 1945 and that Folio 35 of the additional documents, indicated that Mr Saunders was "fit on posting".  He said that he did not pursue the temporary paralysis once it had passed.  There was no evidence before the Tribunal that it ever recurred.

23. In cross-examination, Mr Saunders said that he first started noticing the pain in his neck when he played football with the Bangalow team which was either in August 1947 or July 1945.

24. Mr Saunders also said that in his work as a ledger keeper in a bank post war (1948), he found that on some occasions he was unable to write properly because of numbness in his hands. He also said that from approximately August 1945 he suffered from numbness in the right hand and pain in the left arm when driving his father's car. Mr Saunders said that on those occasions when he did consult a doctor regarding the numbness in his hands, he was told that if it persisted, further investigation would be undertaken.

1. Regarding his back pain, Mr Saunders said that he treated it like a "hard knock at football. You get up and keep running."  He added that he didn't follow it up  for a number of years although the pain persisted and gradually got worse. Mr Saunders said that he didn't say anything about his "relatively minor back pain" because he compared it with other servicemen who had suffered greatly during the war. Mr Saunders told the Tribunal that he played football until 1947.  Mr Saunders said that in 1951 he suffered an occasion where his legs collapsed under him, and he received treatment for his lower back, which he indicated was far more painful than his neck or arms.  He said however that he suffered headaches and had a stiff neck which he just accepted "as part of being a human." 

2. In this respect, the Tribunal noted that in his statement dated 9 March 2001, Mr Saunders detailed the symptoms he has suffered since the crash:

   "… I have been subject, from time to time, to a stiff neck and very severe headaches … other symptoms suffered since the crash are:-

   (a)after discharge in July 1945, I sought to return to my pre-war football playing but found that I had to change position as my neck hurt too much when I attempted to play in my usual 2nd row position. As a lock, I had greater control on the strains placed on my neck. [The Tribunal noted that Mr Saunders said that he continued to play football until 1947];

   (b)from not long after the time of the crash, I suffered left arm pain and intermittent numbness in my hands, which occasionally interfered with my ability to write well; and

   (c)in 1948, when working as a ledger keeper in the Bank of NSW in Bathurst, I had to have the angled ledger desk raised about 170mm as bending over the lower desk made my neck and back stiff and painful.…"

3. The Tribunal noted a letter from Mr G George annexed to Exhibit A1, dated 22 September 2000, which corroborated the evidence regarding the ledger desk referred to in the quote above.

4. The Tribunal was mindful that the Applicant had, in an Application for Increased Rate of Payment of War Pension dated 4 October 1971, which was before the Tribunal at T24/103, stated that: "During the past few years the effects of my spinal disability appear to have spread to both hips, upper spine and arms."

5. Mr Saunders also detailed a number of motor vehicle accidents in which he has been involved since his service, which included:

   ·In December 1978, the vehicle in which he was a passenger was struck by a vehicle which turned across his path. He said that it was not a serious accident and that the impact occurred at low speed, the only result being a damaged mudguard.

   ·Mr Saunders said that on 26 December 1978, the car he was driving was hit from behind by a semi-trailer at a railway crossing; he suffered an injury to his thoracic spine for which he made a claim for compensation with NRMA Limited.  He added that "somehow the specialists ignored what I referred to and took hold of the symptoms of the cervical spondylosis that I had."

   ·Mr Saunders said that in October or November 1979, he fell asleep at the wheel of his car when returning from a Lion's Club meeting.  He said that he did not sustain any injury in that accident.

6. The Tribunal noted that the Applicant settled his motor vehicle accident claim in respect of the accident which occurred on 26 December 1978 in July 1983 in the amount of $35,000. (T8/32).

7. Mr Saunders told the Tribunal that Dr Newcombe ordered a myelogram in 1982 and considered an operation on his lumbar spine, but that he did not proceed with that.  He said that in the late 1980s he started to lose the use of his left arm, and suffered a "frozen shoulder".

8. Mr Saunders said that he underwent surgery for a cervical fusion in March 1990, which was performed by Dr Newcombe,- and as a result, he regained the full use of his left arm, was free from pain, and no longer suffered pain in his legs and lower back.
     EVIDENCE OF DR R NEWCOMBE – NEUROSURGEON

9. There were reports of Dr Newcombe in the T-documents dating back to 1982 and 1983. He had further reports before the Tribunal dated 12 November 1999 and 28 February 2001 were before the Tribunal at T23 and Exhibit A2 respectively.

10. Dr Newcombe gave oral evidence via telephone link.  He said he first examined Mr Saunders on 22 June 1982. Mr Saunders had been referred for "upper limb weakness and sensory disturbance".  Dr Newcombe said he had been made aware of the 1978 motor vehicle accident and Mr Saunders' "earlier problems." In contradiction of that statement, Dr Newcombe in cross-examination replied to Ms Hook that Mr Saunders had first given him the history of the World War II injuries, in particular the neck, in 1986.  That was corroborated in his report of 27 October 1986 (T23/92) where he wrote as follows:

    "He gave me the further history that he was involved in an aircraft crash in 1945 as a trainee pilot.  Following this he was disorientated (sic) initially then seemed uninjured.  He did not seek treatment."

11. Dr Newcombe referred to the earliest X-ray he had of Mr Saunders, dated 27 September 1972 and read from the report as follows:

    "Cervical spine – there is slight degenerative thinning of the disc of the C4/5 and C5/6 level. … There is no evidence of any other abnormality in the cervical region of the spine." 

12. Dr Newcombe said that the sequel to intervertebral disc injury and prolapse was the degenerative change, cervical spondylosis, which Mr Saunders developed, and from which he continues to suffer.  He said it was the latter which was aggravated by the motor vehicle accident in 1978.  Dr Newcombe opined that the development of the cervical spondylosis was progressive after 1945.  He said it would have been present in the 1950s and 1960s.

13. When asked what the basis was for his conclusion that the crash landing in which the Applicant was involved on 1 February 1945 resulted in "cervical disc herniation", Dr Newcombe said:

    "Well, he did have some pain in the upper limbs suggesting nerve root disturbance and he did have some lower limb disturbance and giddiness and weakness in the lower limbs suggesting spinal cord disturbance. These features acutely after an accident are the features that occur after intervertebral disc prolapse with impingement on the spinal cord and nerve root."

14. In commenting on the symptoms the Applicant said he suffered after the aircraft accident, Dr Newcombe agreed that impingement on the spinal cord in the cervical spine could have caused the Applicant's mobility problems and staggering as described. Dr Newcombe opined that the giddiness was caused by:

    "… some vertebral artery disturbance, possibly some labyrinthine disturbance in the inner ear of the movement of the - the sudden deceleration forces."

15. The Tribunal was mindful that in his report dated 7 July 1982 (T7/28), Dr Newcombe detailed a lumbar disc injury sustained by the Applicant during the Second World War, but did not record any history from the Applicant regarding an aircraft crash landing in February 1945.  He specifically stated that: "There is no previous history of neck problems," and diagnosed the Applicant at that time as suffering:

    "…significant aggravation of cervical spondylosis in the [motor vehicle] injury of 26.12.78."

16. When questioned about the opinion noted, Dr Newcombe said:

    "I think he probably just didn't tie it in. I mean, his focus was on what happened after the motor vehicle accident. He knew that he had an established low back injury at World War II … The focus of the consultation was not on that and he probably didn't even – probably hadn't even put it together in his own mind."

17. Dr Newcombe also stated in his report dated 6 September 1982 (T5/19) that:

    "With regard to his cervical spondylosis my view is that the injury of 26.12.78 caused significant aggravation of both symptoms and pathology. On the balance of probabilities his continuing difficulties and probable need for operation are the consequence of the injury since it would be unlikely at his age that spontaneous problems of this sort would have developed if the injury had not occurred."

1. Ms Hook asked Dr Newcombe about his report of 27 October 1986, (T23/92) in which he had recorded that Mr Saunders began to suffer pain in the neck in the early 1950s.  She noted that this was a considerable time after the 1945 incident and asked:

   Ms Hook: "The onset of these symptoms, the pain in his neck, is the more likely onset of his disc herniation isn't it?"
   Dr Newcombe: "… this is not an uncommon story. I mean, lots of people don't  - have a decade or two between the development of symptoms of cervical spondylosis and the initial acute neck injury that seems to settle and go away. I mean there's – a common example is plenty of our footballers, … they get a pretty sore neck at the end of each game and just shrug it off and ignore it and then a couple of decades later they come in earlier in life than otherwise they might and they have cervical spondylosis."
   Ms Hook: "In terms of causation though, which you do comment on in that 1986 report, you reiterate your view in the November 1999 report. So, what you're actually saying is that at the time of the incident he suffered a prolapsed disc in both his lumbar and cervical spines?"
   Dr Newcombe: "Yes".

2. The Tribunal noted that on 17 August 1994 (Exhibit R4/117), Dr Newcombe recorded that an "MRI of the cervical spine shows no neural entrapment related to his cervical spondylosis."

3. Ms Hook then asked Dr Newcombe as follows:

   Ms Hook: "You had the Statement of Principles for intervertebral disc prolapse before you when you made that retrospective diagnosis, didn't you?"
   Dr Newcombe:  "I did."
   Ms Hook: "What is it in the list of symptoms or the cluster of symptoms that Mr Saunders suffered that forms the basis for your diagnosis?"
   Dr Newcombe: "That's a difficult question because I haven't really got my mind bent right around these principles. The – I'll have to turn them up – I was really just taking the history and deciding what I thought it meant. Perhaps you can help me and tell me if it fits what I've said – fits into the principles."
   The Tribunal: "Well Doctor, I think the principles are really for the Tribunal. If we just hear from you in medical terms please."

4. The Tribunal then noted that in his latest report (Exhibit A2), dated 28 February 2001) Dr Newcombe opined that the Applicant's neck injury was separate from, and not caused by his lumbar spondylosis.He said in his oral evidence in relation to the SoPs:

   "Yes, I've certainly given the principles … I thought it was rather restrictive that definition and shall we say medically inaccurate. … In the report I said that taking into account the broader intention and the meaning of the Statement of Principles for Intervertebral Prolapse rather than the actual restricted definition in words or symptoms or even taking that restricted definition it was my view that the accident resulted in cervical disc herniation and the definition said prolapse means protrusion herniation or rupture – the intervertebral disc causing local pain and stiffness and may include dot dot dot pain and parasthesia radiating into the upper limbs. I don't know what the gap is in the definition and perhaps it refers to the lower limbs as well but certainly I think that the symptoms as I've got them are not all encompassing symptoms – a potential range of symptoms of a disc prolapse."

5. When asked whether someone with a disc herniation would be in some pain, Dr Newcombe replied in the affirmative. He added however, that a person with acute disc herniation giving rise to cervical spondylosis may not have many symptoms.

6. As to when a person who had suffered a disc herniation could fly again, Dr Newcombe opined:

   "Depends on the degree. I mean, if you knew it was there today on a scan you wouldn't let them fly again. If you don't know it's there are you're in World War II and the pain in the neck just seems to be a bit of a sore neck and, you know, you'd probably say, well, get on with it chum."

7. In connection with the above, the Tribunal noted Ms Hook's questioning of Dr Newcombe and his replies:

   Ms Hook: "He flew again that night and he flew two days later, five days later, seven days later and 11 and 12 days later. What would this have done to his pain levels?"
   Dr Newcombe: "I don't know. I think – I just don't know how to answer that. Pain is an individual thing.  I – I mean, obviously those kind of activities could aggravate the pain. You might even say that the pain wasn't too bad. That doesn't mean that he didn't have any disc injury."

8. When questioned about Dr Stubbs' comments (Exhibit R3/19 of 16 October 1981), that Mr Saunders' cervical spondylosis pre-dated the disc prolapse, Dr Newcombe opined that:

   "The comment doesn't refer to disc prolapse at all. It's referring to whether the cervical spondylosis, as he saw it, was due to antecedent causes, whether natural or injurious, rather than the aggravation caused by the car accident."

9. Dr Newcombe also said that nerve root compression could occur as a result of either intervertebral disc prolapse or cervical spondylosis. He opined further that:

   "You can have it with soft disc protrusion or you can have it with disc herniation that's old and fibrous with bone spurs as well. The nerve root compression is due narrowing of the nerve root channels and that can be disc or bone or both."

10. When asked by Dr Lynch to clarify his evidence, Dr Newcombe opined as follows:

    Dr Lynch: "Well, we have taken the history from Mr Saunders today and he attributes a lot of his symptomatology to a general feeling of being unwell and giddiness and a lack of co-ordination. Now, do you think – and he described that as shock?"
    Dr Newcombe: "Yes."
    Dr Lynch: "What is your opinion about that?"
    Dr Newcombe: "I think anyone within a Tiger Moth thing like that you'd be pretty shaken up and feel shocked and I think that people don't up and analyse their symptoms very well at times like that."
    Dr Lynch: "But you are proposing - it concerns me a little. You're proposing disc herniation of a severity that produces weakness of the limbs, yet it's transitory. It then goes away with major symptomatology for 20 years?"
    Dr Newcombe: "Yes and he flies within a day or two."

1. As to the evidence of the Applicant that he awoke three weeks after the landing incident, paralysed from the neck down and that that incident lasted for a few hours, Dr Newcombe opined:

   Dr Newcombe: ".. that can happen in people who have discs. I mean, you can – he might have bent his neck forward and impinged on the anterior spinal artery a bit and caused all that and then it passed off again….
   … repeated vascular incidents, as it were, is a component of the development of cervical myelopathy, and you know, the – it can happen. I mean, if you bend your neck forward and you've got a big disc there and it's over a – its bending the spinal cord over a fulcrum.
   Dr Lynch: "Well, again, that's a big disc three weeks after the accident that does no further, or occasional, symptoms and then gradually becomes a clinical entity in around about 1970?"
   Dr Newcombe: "Yes".

2. Dr Newcombe concluded his oral evidence by stating that:

   "… I think that the incident with subsequent episode of weakness and subsequent intermittent neck pain suggest that there was an ongoing pathology that was likely to relate to the Tiger Moth accident. If you say it isn't then you don't have any other sort of ongoing pathology that you would relate. The musculo-ligamentous theory you might expect to settle over a few weeks but if you take an ongoing history of the number of episodes that could be related then I think it's reasonable to propose that they related to the Tiger Moth incident, in the absence of any other incident."

3. In conclusion, the Tribunal asked Dr Newcombe as follows:

   Senior Member: " I guess Dr Lynch has already asked you that Dr Newcombe, but I'm just asking you whether, if you have acute disc herniation, you could just get back into an aircraft that night and fly, and fly in the next few days? …"
   Dr Newcombe: "I think it's more likely that there was not any significant herniation then but there may well have been some intervertebral disc disruption, internal disruption, without too much protrusion."
   Senior Member: "Is that a little different from what you said before?"
   Dr Newcombe: "… It's a bit different. The – you know, these things can take time to develop too, even acutely. All I'm struggling with, like everyone else, is that the history and what it means and I just think that you can't really say that his neck was fine and nothing ever happened to him but he then just started to get some more troubles when he's got a history like that and it's you know, it is a matter of probability. It's certainly not certainty."

EVIDENCE OF DR SCOTT-CHARLTON – ORTHOPAEDIC SURGEON

1. Dr Scott-Charlton prepared two reports for the purposes of Mr Saunders' motor vehicle accident claim, dated 2 December 1982 and 11 January 1983, which were before the Tribunal as T7/24 and T7/25 respectively. He did not give oral evidence.

2. In his report dated 2 December 1982, Dr Scott-Charlton stated that:

   "The pain in the left side of the neck and left shoulder and that in the left forearm and the tingling sometimes felt in the hands and forearms is likely to be due to the joint changes in the neck plus the aggravating effect of the accident …"

3. He added further that the "… degenerative condition of the joints which itself makes the basic contribution to the presence of the present disabilities was not caused by the accident".  The Tribunal was mindful that Dr Scott-Charlton, when asked to comment on earlier accidents suffered by the Applicant, recorded that:

   "… he told me that the only other accidents which he had suffered were one three weeks before the accident in December 1978 when he was a front seat passenger in a car which ran into another vehicle … He reports another accident which was nine months after that in December 1978 when he fell asleep at the wheel and rolled the car off the road."

4. The Tribunal noted that there was no mention by Dr Scott-Charlton of any account of an aircraft crash landing or any ill effects suffered as a result.
   EVIDENCE OF DR E LEE

5. In his medical report dated 27 September 1972, which was before the Tribunal at T5/21, Dr Lee, who did not give oral evidence, wrote the following in respect of Mr Saunders' cervical spine:

   "There is slight degenerative thinning of the discs at the 4/5 and 5/6 levels. Small reactive osteophytes are present on the adjacent anterior margins of the 5th and 6th bodies.
   There is no evidence of any other abnormality in the cervical region of the spine."

EVIDENCE OF DR R AVEDIKIAN

1. Dr Avedikian provided a medical opinion to the Repatriation Commission dated 6 August 1986 (T11) in respect of Mr Saunders, in connection with his claim for a pension. In respect of the Applicant's claimed condition of cervical spondylosis with intervertebral disc lesion, Dr Avedikian opined:

   "The precise cause of this veteran's cervical spondylosis remains somewhat obscure. He states that his neck problem is due to an aircraft accident in January or February '45 whilst at Temora. From the description of his contention, it appears that whatever injury he may have suffered in '45, it does not appear to have been of a major nature. It is mentioned that the aircraft, a Tiger Moth, struck the ground with sufficient force to completely demolish its undercarriage. According to available evidence, his symptoms did not commence until about 1954 when he complained of numbness in the left hand and index finger and occasional stiffness in the neck. Over the years he had a variety of treatment. X-rays done in 1972 showed early degenerative changes. It appears that the motor vehicle accident he had on Boxing Day of 1978 aggravated his neck symptoms. It is difficult to be precise as to the origin of his cervical spondylosis. Prior to this service, he was a bank officer and enjoyed football, swimming and tennis. He is also known to have enjoyed boxing. His work in the Bank would have been mainly of a clerical nature. An occupational hazard amongst clerks is cervical spondylosis. In my opinion, if the injury in 1945 was a significant amount of trauma, the x-ray changes would have occurred at an earlier date than they have in fact have.
   I have noted his service documents. There is nothing mentioned in them regarding this condition. At the time of his medical discharge, he did not complain of any neck problems. No spinal disorder was discovered at the time of the examination. In particular, his neck was noted to be clinically normal."

EVIDENCE OF DR G STUBBS – ORTHOPAEDIC SURGEON

1. Dr Stubbs, whose report dated 28 March 1980 was before the Tribunal at T7/30, and who did not give oral evidence, recorded that the Applicant complained of "… continued backache and pain in the left arm and leg following a motor vehicular accident on the 5.12.78."

2. Dr Stubbs examined the Applicant on 5 July 1979 and noted that the Applicant displayed a "full range of cervical spine movements and normal neurological examination in both arms and legs." 

3. Dr Stubbs opined that Mr Saunders suffered from:

   "… pre-existing mild degenerative changes in his lumbar spine, but that these may  have been made somewhat worse by the motor vehicle accident. There were no signs of nerve root compression nor any signs or major fracture of dislocation requiring further investigations ….
   I believe that there is a causory relationship between the motor vehicle accident of the 26th December, 1978, and the present level of Mr. Saunders' injuries and disabilities. This represents an exacerbation of a pre-existing lumbar spondylosis."

4. Dr Stubbs provided a further report dated 16 October 1981 (Exhibit R3/19), in which he opined that:

   "… Mr. Saunders' reports little more symptoms since his previous examination particularly in the neck. There was some evidence of some early nerve root compression. It is much more likely that these represent a progression of the underlying cervical spondylosis rather than any particular effects from the motor vehicle accident."

5. Dr Stubbs also opined in his report dated 10 April 1990 (Exhibit R4/119) that Mr Saunders, whilst recuperating in hospital from his cervical fusion:

   "… would vary greatly from time to time, sometimes he would be happily running around and apparently mobile and pain free, then a few minutes later he would be lying back on his bed complaining of great distress."

6. In this regard, Dr Stubbs concluded that: "there was a large psychological component in his problems."
   MEDICAL EXAMINATION PRIOR TO DISCHARGE DATED 17 JULY 1945

7. The Applicant's medical examination prior to discharge was before the Tribunal at T3/7. In respect of Question 1, which asked "From what disabilities (wounds, disease, injuries) have you suffered while a member of the RAAF", the Applicant answered, "none".

8. In Part II of the medical examination form, the Applicant's neck was recorded as being normal on discharge.  The Tribunal noted that the Veterans' Review Board at T24/98 recorded as follows:

   "When it was put to the veteran that, at his pre-discharge medical examination, he had apparently not complained of any neck problem and that the neck was noted by the examining medical officer to be clinically normal … the veteran indicated that, by then, the symptoms were probably not troubling him to any significant extent, and that his recollection was that the medical examination had been fairly cursory."

MEDICAL HISTORY SHEET DATED 6 JUNE 1962

1. The Tribunal noted that in the Medical History Sheet dated 6 June 1962 (T4), there was no record of any injury to his neck, however, an injury to Mr Saunders' back was noted as follows:

   "… 10-11-44 Injured Rectus Spinalis Rest 3 days … Back injured at No 3 Stores Depot as Stores Hand …
   In 1944 while loading a truck with Fork lift – had to lift cases by hand …  by himself  … Given light duties for 2/52 but was sore for several more weeks. In 1945 had a bad attack & couldn't get out of bed. Has persisted since then …"

2. In the physical examination, Dr W Coyle recorded the condition of the Applicant's other joints as "NAD" [No Abnormality Detected].
   FURTHER MEDICAL EVIDENCE BEFORE THE TRIBUNAL

3. In addition to the medical evidence discussed above, the Tribunal considered the following other reports which were before it, and the Supplementary T-Documents (Exhibit R3), as well as Treatment Notes of Dr L Waters, the Applicant's Local Medical Officer, (Exhibit R4) and various radiological examinations. They have all been taken into account and the most relevant have been commented on specifically here. 

4. Dr A Győry: The Applicant was examined by the Director, Department of Rehabilitation Medicine at the Repatriation General Hospital Concord on three occasions, that is, 22 July 1985, 26 October 1986 (T10) and 12 March 1987 (T13). The Tribunal was mindful that the medical report of 1986, did not record any complaint or problems with Mr Saunders' neck.  In his 1987 report, Dr Győry recorded that the Applicant suffered "mild pain on the left side of his neck on left lateral flexion and rotation. Pain in left shoulder on adduction from 90 over mid deltoid area. Tender 2+, left acromioclavicular joint with sclerotome radiation." He recommended head/neck/shoulder girdle exercises and isometric neck strengthening exercises.

5. Dr C Andrews, consultant neurologist, in his medical report dated 29 April 1988 (T17), diagnosed left nerve root entrapment. However he added that neurologically there was no abnormality.

6. Dr D Lawrence, psychiatrist, in his medical report dated 26 April 1988 (Exhibit R3), recorded a history from the Applicant that he was involved in a "bad landing" and injured his lower spine which resulted in lumbar spondylosis.

7. Dr Saw, general practitioner, treated Mr Saunders from March 1972 until 3 July 1975. His letter at Exhibit A7, does not distinguish between lumbar and cervical treatment but is probably the referral source for the cervical X-ray in 1972. It is worthy of note that it was not until September 1972 that he referred Mr Saunders for neck X-rays. It is therefore probable that Mr. Saunders had few or intermittent symptoms before September 1972, which fits with his statement: "I mentioned this (numbness in my left thumb when my arm was in certain attitude) to a number of G.P's. They told me not to worry about it until it became more consistent."  
   TECHNICAL INFORMATION

8. The Tribunal also had before it, a number of technical reports detailing the exposure of the de Havilland Tiger Moth to high positive G forces, including a report of Mr J Hebron, Program Director, Transport Industries Skills Centre, dated 26 February 2001 as Exhibit A3, a Report of Dr D Newman, Director, Quantitative Aeronautics Pty Ltd, dated 29 January 2001 as Exhibit A4, and reports of Mr R Bennett, Airworthiness Specialist Engineer – Flight Safety BAE Systems (Operations) Ltd, dated 27 July 2000 and 24 October 2000 at Exhibits A5 and A6 respectively. All the reports were quite technical in detail, but essentially gave qualified support, in light of the lack of documentary evidence available, to the proposition that the crash landing as described to the writers would have exposed Mr Saunders to high positive G forces. In this respect, the Tribunal was mindful of the following reports.

9. Mr J Hebron, Program Director of Transport Industries Skills Centre, stated that:

   "… having viewed all the information … I am of the opinion that Mr Saunders was exposed to over 3 G during the land of the TIGER MOTH on the day in question.
   …
   … depending upon the height above ground when the aircraft stalled, and that can only be fully assessed by examination of the actual damage incurred by the aircraft with the absence of more concrete evidence, then the actual speed on landing may have been lower; then however, the G Forces on touch down would have been greater in fact well above the 3G suggested during my previous paragraph."

10. The Tribunal was mindful that Mr Hebron qualified his opinion by stating that his expertise related to motor vehicles and not aircraft.

11. Dr D Newman, Director of Quantitative Aeronautics Pty Limited, stated that:

    "On the basis of a kinematic analysis using the limited data available, it is probable that Mr Saunders experienced a peak load factor, in the direction of spinal compression, in excess of 2g."

12. However, Dr Newman was minded to add that "the lack of data does not permit this to be established beyond doubt",  not the standard of proof the Tribunal had, in any case, to consider.

13. Mr R Bennett, Airworthiness Specialist Engineer, Flight Safety with BAE Systems, stated at Exhibit A6 that he would require additional time and funding to respond to Mr Saunders' questions regarding the resulting G forces (load) from a heavy landing. However, he did say that:

    "If the undercarriage failed as reported and the undercarriage was completely serviceable prior to the accident, then clearly the design loads were exceeded. Without subject components being available for analysis however, any conclusions regarding their serviceability (or otherwise) and estimations of the loads experienced during and post impact in excess of the design case will be merely speculative."

HISTORICAL INFORMATION

1. The Tribunal was also provided with a report and attachments from Mr B O'Keefe, consulting historian, dated 18 December 2000 as Exhibit R2.  Mr O'Keefe investigated Mr Saunders' claim that "he was involved in the crash of a Tiger Moth aircraft while undergoing training as a pilot at No. 10 Elementary Flying Training School [EFTS] at Temora in late January 1945."

2. Mr O'Keefe stated that he was unable to find any evidence of a crash of the type described by Mr Saunders. Specifically, he said that:

   "There was no reference to it in the Unit History Sheets of No.10 EFTS, the 'Preliminary Accident Reports' held at the RAAF Historical Section in the Department of Defence, the Personnel Occurrence Reports for No.10 EFTS, or any other extant official record. Similarly, there was no mention of the incident in Ron Maslin's Wings Over Temora: The Story of No. 10 E.F.T.S. … or in Stewart Wilson's Tiger Moth, CT-4 Wackett and Winjeel in Australian Service … The latter lists all Tiger Moths that served in the RAAF and gives brief details of their eventual fate."

3. He added that the lack of documentary evidence of the crash described by Mr Saunders was not conclusive regarding its occurrence. He added: "Indeed, Mr Saunders says in his statement that he was told by the OIC of No.10 EFTS's C Flight, Flight Lieutenant Alan William Morely, not to record the incident".

4. Mr O'Keefe also said that he tried to contact Mr Morley and Mr Mole, the latter, Mr Saunders' flight instructor, and searched the electoral roles without success.  In this respect, he stated that "… unless they are absent from the electoral rolls or are listed under other names, it seems probable that Messrs Mole and Morely are deceased".

5. In respect of Mr Saunders seeking medical treatment after the accident, Mr O'Keefe said that:

   "On checking it was found that there are no extant records for admissions or outpatients consultations  to medical units in the Temora area. I was thus unable to obtain any report of Mr Saunders's (sic) reporting sick with cervical symptoms or a nervous condition."

SUBMISSIONS AND CONCLUSIONS

1. In coming to the correct and preferable decision, the Tribunal had to take into account the evidence both written and oral, the case law, legislation and relevant SoPs to decide whether Mr Saunders' cervical spondylosis with intervertebral disc lesion was war-caused pursuant to section 9 of the Act.

2. The Tribunal was mindful that Mr Saunders served his country on eligible service from 25 March 1944 to 25 July 1945, and that the agreed earliest date of effect if applicable, would be 6 January 1998.  The conditions Mr Saunders suffers which have been accepted as war-caused are lumbar spondylosis, intervertebral disc lesion and depressive state.

3. The Tribunal was mindful that the Respondent had previously rejected Mr Saunders' claims that his cervical spondylosis was war-caused.  On the most recent occasion, 19 March 1998 (T21), the Repatriation Commission, in rejecting Mr Saunders' application for a pension in respect of the claimed condition of cervical spondylosis with intervertebral disc lesion, made the following findings with regard to the cervical spine:

   "?        Cervical intervertebral disc prolapse

   There is a history of cervical intervertebral disc prolapse, but this did not occur until after cervical spondylosis with intervertebral disc lesion had developed. Therefore this disc prolapse cannot have caused cervical spondylosis with intervertebral disc lesion.

   ?Trauma to the cervical spine

   In your case, there is a history of trauma to the cervical spine. This trauma occurred during the aircraft accident already mentioned. There is no official record of this accident but you have provided corroborative evidence of it to support your claim, and I have no doubt that the accident occurred as stated. …

   The meaning of "trauma"' is defined on page 4 of that Statement of Principles. Without quoting that definition in full, it should be noted that a trauma sufficient to cause cervical spondylosis should have resulted in 'the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement'. Furthermore, such symptoms and signs would generally have persisted for at least 7 days, unless medical intervention had occurred.
   It is noted on your RAAF Sick Parade Card that you reported on 5 February 1945, complaining of diarrhoea and "giddiness over the past few weeks". There is no mention of any symptoms relating to the cervical spine at this time. Your diarrhoea resolved the following day after medication. There are no subsequent references in your medical documents to symptoms relating to the cervical spine.
   Thus, although there is a history of trauma to the cervical spine before the clinical onset of cervical spondylosis with intervertebral disc lesion, the resulting symptoms of pain, tenderness and altered mobility or range of movement of the cervical spine did not last for at least 7 days after the trauma occurred. Because there was no medical intervention in the 7 days following the trauma which would have caused the symptoms to resolve, this trauma to the cervical spine was not severe enough to have caused the cervical spondylosis with intervertebral disc lesion …
   Trauma can also be a factor in the development of cervical spondylosis if it caused permanent ligamentous instability. Although there is a history of trauma to the cervical spine before the clinical onset of cervical spondylosis with intervertebral disc lesion, this trauma did not result in permanent ligamentous instability of the cervical spine."

4. The Tribunal noted that the above quoted Repatriation Commission decision was affirmed by the Veterans' Review Board on 4 April 2000 giving the following reasons for its decision:

   "The Board is in no doubt that the veteran suffered an injury in the February 1945 incident and that the circumstances surrounding that incident, together with the effects that it had on the veteran, were as outlined in his evidence at both the present and previous hearings. The Board notes the veteran's obvious convictions that it was the 1945 incident that formed the source of many of the problems affecting his neck that he experienced in later life, as well as the supportive opinion provided for the purposes of the appeal by Dr Newcombe. However the Board has concluded for the following reasons, that the circumstances do not meet the requirement of the definition of "trauma to the cervical spine".
   The definition applied to an injury to the cervical spine … that causes the development "within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of a least one week immediately after the injury occurs, unless medical intervention has occurred"… Where the medical intervention for the injury has occurred, such evidence may be considered. While the injury in question may well have resulted in a considerable degree of shock and disorientation, there is no evidence before the Board that it resulted, within 24 hours, in acute symptoms and signs of pain and tenderness, or in any perceptible degree of altered mobility or range of movement of the veteran's cervical spine. Moreover, when the veteran did seek treatment on 5 February 1945, it was for "diarrhoea" and "giddiness", and he was treated on that basis."

5. As the Applicant has eligible service, the Tribunal had to apply the relevant SoPs, the standard of proof being that of reasonable satisfaction of the Tribunal, (which equates to the balance of probabilities), pursuant to section 120(4) of the Act.

6. Taking into account all the evidence, this Tribunal accepted that Mr Saunders has diffuse chronic degenerative disease of his whole spine, and was mindful that lumbar spondylosis and intervertebral disc lesion, which arose out of an incident whilst loading a truck, (T4), are conditions accepted as war-caused.

7. The Tribunal is bound to apply the relevant SoPs, and turned to consider whether the Applicant's cervical spondylosis with intervertebral disc prolapse met the conditions specified in the relevant SoPs.  As outlined above, the Tribunal noted that the relevant SoP concerning cervical spondylosis at the time of the Repatriation Commission decision of 19 March 1998, was Instrument No.162 of 1996. However, by the time of the Veterans' Review Board decision dated 4 April 2000, Instrument No.162 of 1996 had been revoked by Instrument No.57 of 1998,  which itself was revoked by No.32 of 1999.  Instrument No.32 of 1999 was the SoP in force as at 4 April 2000, and the Applicant's claim was considered in light of this SoP by the Veterans' Review Board.

8. In this respect, the Tribunal noted the further submissions by the parties in respect of the SoPs applicable to Mr Saunders' circumstances. Ms Buss for the Applicant in her submissions dated 19 April 2001 submitted that:

   "… as the law now stands, the Tribunal is bound to have  regard to the current Sop unless that/those in force when the Commission's decision was made is/are more beneficial. That means that, in effect, the Tribunal chooses whichever of the SoPs in place at the time of the Commission's decision or at the time the Tribunal makes its decision is more beneficial."

9. Ms Hook for the Respondent, in the Respondent's submission dated 26 April 2001, submitted that:

   "The Respondent's instructions in relation to Repatriation Commission policy are, that following the Full Federal Court decision in Keeley, the applicable SoP is that in place at the time of the primary decision …
   In relation to the cervical spondylosis, it is submitted that the SoP in place at the time of the primary decision is applicable because it is 'more beneficial' than the current SoP."

10. The Applicant's submission was that Factor 5(g) in the earlier SoP No.162 of 1996 was more beneficial, because it required reference to the intervertebral disc prolapse SoP which did not require reference to high positive G forces.

11. The Tribunal noted the submissions of the parties, and was mindful that it was bound by the Federal Court decision in Repatriation Commission v Keeley (2000) 98 FCR 108, and required to take into account Mr Saunders' accrued rights.

12. The Tribunal therefore applied the SoPs current at the time of the Repatriation Commission, namely Instrument No.131 of 1996 as amended by No.93 of 1997 concerning Intervertebral Disc Prolapse, and SoP Instrument No.162 of 1996 concerning Cervical Spondylosis, in satisfaction of the principles established in Keeley (supra).

13. Turning then to consider the SoPs; cervical spondylosis is defined in Instrument No.162 of 1996 as:

    "… degenerative changes affecting the cervical vertebrae and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of cervical cord or cervical nerve root compression …"

14. The minimum factors required to relate the Applicant's cervical spondylosis with his war service are outlined in Factor 5 of the SoP. All the Factors have been considered, but in Mr Saunders' case, one of the following parts of Factor 5 may have been relevant:

    "(e)     suffering a trauma to the cervical spine which has resulted in permanent ligamentous instability before the clinical onset of cervical spondylosis; or
    (f)        suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis; or
    (g)       suffering a cervical intervertebral disc prolapse before the clinical onset of cervical spondylosis at the level of the intervertebral disc prolapse;…"

1. Instrument No.162 of 1996 defines the phrases "trauma to the cervical spine" as follows:

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

2. The definition of "trauma to the cervical spine which has resulted in permanent ligamentous instability" in Instrument No.162 of 1996 is as follows:

   " 'trauma to the cervical spine which has resulted in ligamentous instability' means abnormal mobility and instability of the cervical spine due to ligamentous injury caused by the force of an extraneous physical or mechanical agent, and is characterised by the regular recurrence of episodes of pain and/or tenderness affecting the cervical spine."

3. In respect of the Applicant's claimed condition of intervertebral disc lesion, the applicable SoP in force at both the time of the Repatriation Commission decision dated 9 March 1998, and the Veterans' Review Board decision dated 4 April 2000 was SoP Instrument No.131 of 1996 as amended by No.93 of 1997 concerning Intervertebral Disc Prolapse.  There is little difference other than in format between the two applicable definitions of intervertebral disc prolapse as defined in the SoPs, and that from No.93 of 1997, follows:

   "intervertebral disc prolapse" means  protrusion, herniation or rupture of an intervertebral disc of cervical, thoracic or lumbar spine, causing local pain and stiffness, and may include:

   (i)in the case of cervical disc prolapse – pain or paraesthesia radiating into the upper limbs or;

   (ii)in the case of lumbar disc prolapse - – pain or paraesthesia radiating into the lower limbs,

   …"

4. The minimum factors required to relate the Applicant's intervertebral disc prolapse with his war service are outlined in Factor 5 of the SoP. In Mr Saunders' case, one factor may have been relevant:

   "(e)exposure to an environment of high positive G forces at the time of the clinical onset of intervertebral disc prolapse …"

5. The phrase "an environment of high positive G forces" is defined in the SoP as meaning:

   "… positive G forces of at least two which can be produced by flying in modern high performance jet aircraft. These occur when the aircraft changes speed or direction, eg in turns or recovery from dives. A G force is the ratio of the applied acceleration of the aircraft to the acceleration due to gravity, for example, 2G = 2 x 9.81m/s2."

1. Ms Buss submitted for the Applicant that:

   "Based on his understanding of the facts, the scenario submitted by the Applicant was: plane crash ? high positive G forces ? IVD prolapse ? cervical spondylosis. This relies on cervical spondylosis SoP 162 of 1996, factor 5(g), as being more beneficial. It is more beneficial because it requires reference to the IVD prolapse SoP which does not contain, in its reference to high positive G forces … the requirement for minimum numbers of days of ensuing symptoms that are contained within the cervical spondylosis SoP 32 of 1999, factor 5(j)."

2. As a preliminary matter, Ms Hook submitted on behalf of the Respondent that the only issue before the Tribunal was the date of the clinical onset of the intervertebral disc prolapse and whether:

   "… Mr Saunders suffered what Dr Newcombe has diagnosed as an acute disc herniation at the time of the heavy landing of the Tiger Moth."

3. She submitted that if the Tribunal was satisfied that Mr Saunders' suffered from intervertebral disc prolapse at the time of the crash landing, then Mr Saunders' would also satisfy the minimum factor required to relate his cervical spondylosis with his war service, namely that he  suffered:

   "a trauma to the cervical spine which has resulted in permanent ligamentous instability before the clinical onset of cervical spondylosis …"

1. This position was supported by Ms Buss for the Applicant, who submitted that there was:

   "… only one thing left and that is … which came first, the prolapse or the cervical spondylosis. And at the outset I acknowledge that I think that we would all know from past experience that cervical spondylosis can lead to intervertebral disc prolapses but then so can an intervertebral disc prolapse lead to cervical spondylosis."

2. In this respect, the Tribunal noted that the position adopted by the Respondent involved the acceptance, despite the lack of documentary evidence, of Mr Saunders' evidence recording a crash landing on or about 1 February 1945, and that he was exposed to high positive G-forces at the time of the crash landing.

3. Although the Tribunal expressed its concerns as to whether the crash landing occurred, it was mindful that section 119 of the Act enables the Repatriation Commission, and, therefore, this Tribunal, to take into account the unavailability of records when ascertaining the existence of facts. Specifically, section 119 provides that:

   "119     Commission not bound by technicalities

   (1)In considering, hearing or determination, and in making a decision in relation to:

   (a)a claim or application …

   the Commission …

   (h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause, or circumstance, including any reason attributable to:

   (i)     the effects if the passage of time, including the effect of the passage of time on the availability of witnesses; and

   (ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."

4. In this respect, the Tribunal noted the comments of the Repatriation Commission on 19 March 1998 (T21) that:

   "There is no official record of this accident but you have provided corroborative evidence of it to support your claim, and I have no doubt that the accident occurred as stated."

5. The Veterans' Review Board decision dated 20 May 1987 (T14) concerning the Applicant's first claim regarding his cervical spondylosis, found  that:

   "… two letters on file, which support the statement that the heavy landing occurred. At folio 133 there is a letter dated 11 July 1986 from Maxwell R Newton, who wrote "I well remember both yourself and Gerry Mutch and do recollect the accident to the aircraft in which you were flying." [Exhibit R3/17 before this Tribunal] At folios 52 and 53 there is a letter from Mrs Ingrid Mole, the wife of Ex-Flight-Lieutenant Mole who was the instructor in the plane when he had the heavy landing, and she mentions that her husband remembers the incident of the heavy landing [Exhibit R3/33 before this Tribunal]"

6. The Veteran's Review Board held on 4 April 2000 (T24) that:

   "The Board is in no doubt that the veteran suffered an injury in the February 1945 incident, together with the effects that it had on the veteran, were as outlined in his evidence at both the present and the previous hearings."

7. The Tribunal also considered the evidence before it from Mr B O'Keefe, who stated that the lack of reference to the crash as described by Mr Saunders was not conclusive regarding its occurrence: "Indeed, Mr Saunders says in his statement that he was told by the OIC of No.10 EFTS's C Flight, Flight Lieutenant Alan William Morely, not to record the incident".

8. The Tribunal noted the evidence of the technical experts whose evidence regarding the Applicant's exposure to positive G forces was before it, including that of Mr Hebron, who stated that:

   "… having viewed all the information … I am of the opinion that Mr Saunders was exposed to over 3 G during the land of the TIGER MOTH on the day in question …

9. Dr Newman also stated that it was probable, although he could not be sure beyond doubt, (which is not a test the Tribunal would take into account), that the Applicant experienced a peak load factor in excess of 2G.

10. Therefore, although the Tribunal Members expressed concerns at the Hearing as to whether the crash landing occurred as reported by the Applicant, it has noted the concession of the Respondent and the operation of section 119 of the Act, and proceeded on the basis that it was reasonably satisfied the crash landing did occur, and (taking into account the expert evidence before the Tribunal), that the Applicant was exposed to high positive G forces on or about 1 February 1945.

11. The Tribunal had therefore to ascertain whether Mr Saunders suffered intervertebral disc prolapse or permanent ligamentous instability as a result of the impact described (SoP No.131. of 1996 and No.93 of 1997).

12. The Tribunal was mindful on the basis of Mr Saunders' account and his log book, (Exhibit A8), and the evidence he gave regarding his flying lessons that a heavy landing incident occurred on 1 February 1945.  His evidence was that he rested during the morning of 1 February 1945 following the incident, then was driven 10 -15 miles by truck to the base at Temora, where he attended class that afternoon, and completed two hours of night flying that night.  He flew again on 3, 5 and 6 February, and completed the flying course on 15 February 1945. He had completed five days of full four hours flying per day in flying training, which included aerobatics training.

13. The Tribunal noted from the records that Mr Saunders sought assistance from the RAP on 5 February 1945 with what he admitted to have been a fabricated complaint of diarrhoea, and of giddiness, commencing, he had reported, a couple of weeks previously. 

14. The Tribunal was satisfied from the evidence that whatever Mr Saunders suffered on 1 February 1945 was not so severe that it restricted him from flying, even on that very evening, and participating in aerobatics.  When questioned by Ms Buss who represented him, about the pain in his neck from the time of the accident onwards, Mr Saunders replied that he had difficulty walking in a straight line, and felt out of sorts for the rest of the course. 

    "Well it was a  very sort of distant hurting situation as I tried to explain it the analogy of the engine being out of tune. …  it was disconcerting that you just couldn't do everything that you set out to do, that you felt very very uncomfortable, and that any pain that was there would have been secondary to the physical other – physical and mental disturbance that occurred as a result of the accident." 

15. The Tribunal turned to the supporting medical evidence, and mindful that Dr Newcombe was Mr Saunders' treating neurosurgeon, was particularly interested in hearing from him and studying his reports. He was the only doctor who gave oral evidence before the Tribunal, although of course the Tribunal had the other medical reports listed in the T-documents and Exhibits before it, and has also taken those into account.

16. The Tribunal was mindful that Dr Newcombe's opinion was that the aircraft accident of 1 February 1945 was the cause of Mr Saunders' intervertebral disc prolapse. However in his oral evidence and after questioning by the Tribunal, he conceded as follows:

    The Tribunal:  "If we assume that Mr Saunders had acute disc herniation after the Tiger Moth incident … is it reasonable that he flew again that night and in the next few days?"
    Dr Newcombe: "I think it's more likely that there was not any significant herniation then but there may well have been some intervertebral disc disruption, internal disruption without too much protrusion."
    The Tribunal: "Is that a little different from what you said before?"
    Dr Newcombe: "It's – it's a bit different … you know these things can take time to develop too, even acutely. All I'm struggling with, like everyone else, is that the history and what it means and I just think that you can't really say that his neck was fine and nothing ever happened to him but he then just started to get some more troubles when he's got a history like that and it's, you know, a matter of probability. It's certainly not certainty."

17. The Tribunal noted Ms Buss' submission, relying on Dr Newcombe's evidence, which was: "there may well have been some intervertebral disc disruption, internal disruption without too much protrusion".  She submitted that the SoPs:

    " … don't require anything in the way of significance or much, and the most important point I would like to make about what he said is that there is still herniation and protrusion even if it is minor. And if minor, it still fits the Statement of Principles which says nothing about the degree of the protrusion."

18. In its task of deciding whether Mr Saunders suffered an intervertebral disc prolapse in the aircraft landing, the Tribunal also turned to other reports of Dr Newcombe, the first of which were dated July and September 1982 (T5). In his report dated 7 July 1982 (T7/28) Dr Newcombe diagnosed the Applicant's condition following his motor vehicle accident on 26 December 1978 as resulting in "…significant aggravation of cervical spondylosis …"   

19. This, according to Dr Newcombe in his report of 9 August 1982, was confirmed radiologically:

    "Myelography on 21.7.82 revealed indentation of the nerve root branch on the left side at the C5-6 level and evidence of a disc protrusion at the L4-5 level. On the right side of L5-6 there was a shallow indentation extending over some distance consistent with a large disc protrusion at the level also."

20. The Tribunal noted that Dr Newcombe recorded in his report of 7 July 1982, that: "There is no previous history of neck problems."   Dr Newcombe's oral evidence corroborated the notation in his report of 27 October 1986 that Mr Saunders had first told him of his World War II injuries, in particular the neck, in 1986.

21. Dr Newcombe opined at T23, a report of 12 November 1999 (referring to symptoms described by Mr Saunders which occurred after the aircraft accident and later on or about 19 February 1945) that these symptoms were caused by spinal cord compression which precipitated the development of cervical spondylosis:

    "Such difficulty in walking and giddiness and such temporary paralysis occurs in cervical disc herniation causing spinal cord compression. I consider on the balance of probabilities, given this history, that it is likely that the aircraft accident caused one or more cervical disc herniations with spinal cord compression and subsequently led to the development of cervical spondylosis. Such cervical spondylosis is likely to be aggravated by accidents such as that which occurred on 26.12.78  ...
    I note that the history he gave me was that in the early 1950's he began to suffer from pain in the neck and pain in the left arm. This is due to the cervical spondylosis and clearly the onset of clinical cervical spondylosis therefore occurred within ten years of the 1945 aircraft accident."

22. The Tribunal noted also Dr Newcombe's report of 28 February 2001 (Exhibit A2) where he commented on the SoP, and his oral evidence in that regard.

    "Yes, I've certainly given the principles … I thought it was rather restrictive that definition and shall we say medically inaccurate. … In the report I said that taking into account the broader intention and the meaning of the Statement of Principles for Intervertebral Prolapse rather than the actual restricted definition in words or symptoms or even taking that restricted definition it was my view that the accident resulted in cervical disc herniation and the definition said prolapse means protrusion herniation or rupture – the intervertebral disc causing local pain and stiffness and may include dot dot dot pain and parasthesia radiating into the upper limbs. I don't know what the gap is in the definition and perhaps it refers to the lower limbs as well but certainly I think that the symptoms as I've got them are not all encompassing symptoms – a potential range of symptoms of a disc prolapse."

23. The Tribunal was not satisfied that Dr Newcombe's oral evidence before the Tribunal was consistent throughout, and neither entirely consistent with his written reports.  In particular, when questioned more closely by the Tribunal regarding his evidence that the intervertebral disc prolapse occurred as a result of the aircraft landing, Dr Newcombe suggested it may have been "internal disruption without too much protrusion". His evidence was in the nature of attempting to interpret the SoPs which is of course the task of the Tribunal.  The Tribunal also found he acted as an advocate for Mr Saunders.

24. In coming to its decision and before further considering the tests in the SoP, the Tribunal noted the other medical reports before it.  The report of Dr Scott-Charlton dated 2 December 1982, which was written in connection with Mr Saunders' motor accident claim, opined that X-rays taken in 1982, showed certain degenerative changes in the cervical spine at C4/5 and C5/6 levels.  Dr Scott-Charlton considered the motor vehicle accident of 1978 had aggravated Mr Saunders' cervical spine.  He opined:

    "The pain in the left side of the neck and left shoulder and that in the left forearm and the tingling sometimes felt in the hands and forearms is likely to be due to the joint changes in the neck plus the aggravating effect of the accident …"

25. The only documentation before the Tribunal with regard to the payout by NRMA Insurance Ltd (T8) dated 26 May 1986 did not specify other than that the claim arose out of an accident on 26 December 1978. Mr Saunders' evidence was that the car he was driving was hit from behind by a semi-trailer at a railway crossing; he said suffered an injury to his thoracic spine for which he made a claim for compensation with NRMA Limited.  He added that "somehow the specialists ignored what I referred to and took hold of the symptoms of the cervical spondylosis that I had." 

26. Dr Avedikian, in his report dated 6 August 1986, opined that: "X-rays done in 1972 show early degenerative changes".

27. Dr Stubbs opined in 1979, that Mr Saunders suffered from:

    "… pre-existing mild degenerative changes in his lumbar spine, but that these may  have been made somewhat worse by the motor vehicle accident. There were no signs of nerve root compression nor any signs or major fracture of dislocation requiring further investigations ….
    I believe that there is a causory relationship between the motor vehicle accident of the 26th December, 1978, and the present level of Mr. Saunders injuries and disabilities. This represents an exacerbation of a pre-existing lumbar spondylosis."

28. The Tribunal was mindful that at the time Dr Stubbs emphasised lumbar spondylosis, and did not report on any cervical symptoms, which suggested that  these symptoms were then probably assessed as being relatively minor.

29. Subsequently Dr Stubbs stated, in October 1981 (Exhibit R3/19), of the symptoms reported by the Applicant in respect of his neck, that :

    "There was some evidence of some early nerve root compression. It is much more likely that these represent a progression of the underlying cervical spondylosis …"

30. Having considered the above medical reports, and Mr Saunders' evidence, the Tribunal accepted the concession of the Respondent, and satisfied that the Applicant had suffered an intervertebral disc prolapse, turned to consider further whether he satisfied the remaining parts of Factor 5(e) of the SoP concerning Intervertebral Disc Prolapse, namely whether Mr Saunders, at the time he was exposed to an environment of high positive G forces, suffered the clinical onset of intervertebral disc prolapse.  Factor 5(e) states as follows:

    "5(e) exposure to an environment of high positive G forces at the time of the clinical      onset of intervertebral disc prolapse; …"

1. The applicable definition of intervertebral disc prolapse as defined in the SoP (No.93 of 1997), as amended, follows:

   "… protrusion, herniation or rupture of an intervertebral disc of cervical, thoracic or lumbar spine, causing local pain and stiffness, and may include:

   (i)in the case of cervical disc prolapse – pain or paraesthesia radiating into the upper limbs or;

   (ii)in the case of lumbar disc prolapse - – pain or paraesthesia radiating into the lower limbs,

   …"

2. Ms Buss submitted that Mr Saunders suffered an intervertebral disc prolapse at the time of the crash landing of the Tiger Moth.  She submitted further that:

   "… that evidence is based on the evidence of the crash itself and the symptoms that followed and the continuation of symptoms, even if intermittently from then … He had clear exacerbations about three weeks later, or recurrences … related to what we say was an IVD prolapse that occurred on the day of the crash, about three weeks later when he suffered paralysis from the neck down temporarily at the end of his service , when he went to try and play football and suffered intense pain an in the ensuing years when he suffered pain at work."

3. She added that the lack of documentation of Mr Saunders' symptoms was due to the following:

   "… the doctors told him,- you know, if it resolves don't worry about it and it did wax and wane. And the second thing is, he also spoke about the airmen who'd seen overseas service with whom he roomed and not wanting to make too much of a fuss about his own problems, but I think the major thing is that he really just assumed it was part and parcel of his lumbar spinal problem which … originally arose out of a lifting accident some six or eight weeks prior to the aeroplane crash."

4. Ms Buss also submitted that Dr Newcombe, who was apprised of the Applicant's subsequent motor vehicle accidents:

   "… given the history that he understood from Mr Saunders about the nature of the crash landing and his symptoms after it was that he had probably suffered a disc prolapse or herniation or herniations which are incorporated in the definition of prolapse in the SOP
   …
   Given that Dr Newcombe is perfectly aware of Mr Saunders motor vehicle accident and the consequences and his current status and he is on the history which, I submit, can be accepted as correct on balance, still prepared to say that he probably suffered some sort of herniation or protrusion at the time. Then I think that the Tribunal can be satisfied on balance that that is what happened and that in Mr Saunders' case the acute episodes that he suffered from then on became later the chronic spondylosis which added to the prolapses."

5. Ms Hook submitted that to meet the definition of intervertebral disc prolapse in the relevant SoP, Mr Saunders would have to have:

   "… suffered his acute disc herniation causing local pain and stiffness and/or pain and paraesthesia in the upper limbs at the time of the landing."

6. In this respect, Ms Hook submitted that the Applicant, when cross-examined, detailed his symptoms as follows:

   "What he told the Tribunal was that he had difficulty walking in a straight line, he was feeling out of sorts for the rest of the course, he had a sense of uncomfortableness like an engine out of tune and the pain was secondary to any emotional or physical disturbance."

7. Ms Hook submitted that the symptoms detailed by the Applicant were the reaction of a person in shock. She added that:

   "… we don't get the requisite subjective symptoms of pain at least until a football match some five months later and there is certainly no mention of neck stiffness either."

8. Ms Hook referred the Tribunal to Mr Saunders' handwritten statement in which he documented the whiplash injury he sustained, stating that:

   "Whiplash – continued
   Symptoms became evident during the 1950's i.e. stiff neck, pain in outer edge of left shoulder join, numbness in left thumb and adjoining area". (Exhibit R3/31)

1. Ms Hook submitted that the symptoms detailed were the symptoms contemplated by the SoP for intervertebral disc prolapse.  However, she added that Mr Saunders did not suffer such symptoms until the 1950s – some considerable time after the crash landing of the Tiger Moth.

2. Ms Hook also submitted that the Applicant's evidence was supported by Dr Newcombe who noted that:

   "… the history he gave me was that in the early 1950's he began to suffer from pain in the neck and pain in the left arm."

3. Ms Hook submitted further that the likelihood of acute disc herniation that Mr Saunders would have to have sustained at the time of his exposure to high positive G forces to be successful in his claim, was mitigated by the fact that Mr Saunders returned to a cramped cockpit, flew again the same evening and on several days following.  

4. The Tribunal was mindful on the basis of Mr Saunders' account and his log book, (Exhibit A8), that he rested during the morning of 1 February 1945 following the aircraft landing incident, then was driven 10 -15 miles by truck to the base at Temora, where he attended class that afternoon, and completed two hours of night flying that night.  He flew again on 3, 5 and 6 February, and completed the flying course on 15 February 1945, including aerobatics training.  Mr Saunders' evidence was that he did not seek assistance from any medical personnel until he attended the RAP on 5 February 1945 with what he admitted to be a fabricated account of  diarrhoea and of giddiness dating back some two weeks, as described above.

5. The Tribunal was satisfied from the evidence that whatever Mr Saunders suffered on 1 February 1945 was not so severe that it restricted him from flying, even on that very evening, and participating in aerobatics.  When questioned by Ms Buss who represented him, about the pain in his neck from the time of the accident onwards, Mr Saunders replied that he had difficulty walking in a straight line, and felt out of sorts for the rest of the course. 

   "Well it was a  very sort of distant hurting situation as I tried to explain it the analogy of the engine being out of tune. …  it was disconcerting that you just couldn't do everything that you set out to do, that you felt very very uncomfortable, and that any pain that was there would have been secondary to the physical other – physical and mental disturbance that occurred as a result of the accident." 

6. The Tribunal was mindful that to meet the tests in the SoP No. 131 of 1996 and No.93 of 1997, and to have suffered protrusion, herniation, or rupture of an intervertebral disc causing local pain or stiffness, the Applicant would have felt pain or parasthesia radiating into the upper limbs. He did not report any such symptoms described in the relevant SoPs, not even when questioned by his own counsel.  The Tribunal found from the symptoms described, that it sounded more like the reaction of a person in shock than one who had suffered intervertebral disc prolapse.

7. The evidence before the Tribunal was that Mr Saunders did not report suffering any pain or parasthesia which may have been associated with cervical intervertebral disc prolapse until he reported difficulties at football approximately five months after the incident, and reported a stiff neck in the 1950s.  He made no mention of any neck problem on his discharge (T3), and "NAD"  was recorded for his neck by Dr Coyle on 6 June 1962.  It was not until September 1972 that Dr Way ordered X-rays of the cervical area.  Dr Newcombe, Mr Saunders' treating neurosurgeon told the Tribunal in his oral evidence that Mr Saunders did not report any aircraft landing incident to him until 1986.  Indeed in Dr Newcombe's report of 7 July 1982 (T7/28), he specifically stated:

   "There is no previous history of neck problems." 

8. The Tribunal was also mindful that the Applicant had, in an Application for Increased Rate of Payment of War Pension dated 4 October 1971, which was before the Tribunal at T24/103, stated that: "During the past few years the effects of my spinal disability appear to have spread to both hips, upper spine and arms."  The Tribunal noted that this tied in with the action taken by Dr Way to have X-rays done in 1972, approximately 27 years after the Tiger Moth landing incident, which showed the commencement of certain changes in the cervical spine.

9. The Tribunal then looked to the evidence of the Applicant that he awoke three weeks after the landing incident paralysed from the neck down, and that that incident lasted for a few hours on one occasion only. Dr Lynch questioned Dr Newcombe regarding the incident:

   Dr Newcombe: ".. that can happen in people who have discs. I mean, you can – he might have bent his neck forward and impinged on the anterior spinal artery a bit and caused all that and then it passed off again….
   … repeated vascular incidents, as it were, is a component of the development of cervical myelopathy, and you know, the – it can happen. I mean, if you bend your neck forward and you've got a big disc there and it's over a – it's being the spinal cord over a fulcrum."
   Dr Lynch: "Well, again, that's a big disc three weeks after the accident that does no further, or occasional, symptoms and then gradually becomes a clinical entity in around about 1970?"
   Dr Newcombe: "Yes".

10. Noting the above exchange, and Mr Saunders' evidence that he did not report the occurrence to anyone, and the evidence given that it never again recurred, the Tribunal could not be satisfied that any temporary paralysis occurred as a result of injury derived from the aircraft landing incident.

11. The Tribunal, mindful that Mr Saunders was only 20 years old at the time, noted that Dr Newcombe suggested a vascular mechanism for this transitory paralysis, which occurred on one occasion only. This appeared to be related to the shift in Dr Newcombe's views during his oral evidence, that is from originally opining that the landing of 1 February 1945 caused intervertebral disc prolapse to his secondary opinion of causation, namely some significant ligamentous instability as a result of internal disruption of a cervical disc permitting a mechanical kinking or initiation of spasm. The Tribunal considered the explanation to be speculative and did not accept it, neither was it convinced that Mr Saunders' recollection was accurate.

12. The Tribunal noted the submissions of Ms Buss that Mr Saunders for quite some years considered his neck problems as an extension of his lumbar problems which were more pronounced, and that this explained why he had not sought treatment for his neck sooner.

13. The Tribunal accepted that Mr Saunders believes his cervical disease is causally related to the Tiger Moth landing incident in 1945 which he described.  In light of the inconsistencies in Mr Saunders' descriptions to various doctors over time, and the medical evidence available, the Tribunal could not however be reasonably satisfied of the accuracy of Mr Saunders' recollections in the giving of his evidence.

14. The Tribunal was mindful that notwithstanding some problems at football approximately five months after the incident, and some minor cervically related complaints in the 1950s and 1960s, Mr Saunders only consulted Dr Saw regarding his neck in the 1970s. It has already been noted that Dr Saw referred him for X-rays in September 1972.  The results of these indicated the commencement of certain changes in the cervical spine. This and the other evidence before the Tribunal suggested that  the onset of cervical spondylosis was from approximately 1970 onwards.  Dr Newcombe, Mr Saunders' treating neurosurgeon reported in 1982 that there was no previous history of neck problems. In his oral evidence he told the Tribunal that Mr Saunders did not report any aircraft landing incident to him until 1986.

15. The Tribunal was mindful that Dr Avedikian reported in 1986 (T11), on the X-rays done in 1972 which he opined showed early degenerative changes. He noted further that the motor vehicle accident of 1978 aggravated Mr Saunders' neck symptoms and opined that if the injury of 1945 had occasioned a significant amount of trauma, the changes which were demonstrated on the X-rays would have occurred at an earlier date.

16. In summary, the submissions of Ms Buss regarding Mr Saunders' having suffered intervertebral disc prolapse in the aircraft landing of 1945 were as follows:

• He had suffered intervertebral disc prolapse during an aircraft landing on 1 February 1945, this later leading to cervical spondylosis;

• Mr Saunders' version of the "aftermath" of the aircraft landing and the subsequent problems as described by him should be accepted;

• The Applicant had an exacerbation [the temporary paralysis], three weeks after the landing incident;

• Mr Saunders suffered pain when he played football postwar;

• Mr Saunders suffered pain in the years following, including at work;

• Mr Saunders did not report his pain because the doctors told him it might resolve, and it did in fact wax and wain;

• Mr Saunders thought that his cervical pain was an extension of his lumbar spinal problem and did not realise it was separate;

• Mr Saunders did not want to complain because he had seen other people suffer on service, and did not want to make a fuss about his own problems.

1. Ms Hook on the other hand, submitted that:

• Mr Saunders when asked about his reaction after the aircraft landing on 1 February 1945, told the Tribunal he had difficulty walking in a straight line and was feeling out of sorts for the rest of the flying course;

• However Mr Saunders flew again on the night of 1 February 1945, and several subsequent days and nights, until the course was completed some two weeks later;

• Mr Saunders attended the RAP some five days after the incident with fictitious complaints of diarrhoea and having felt giddiness for the past couple of weeks;

• The discharge summary noted no neck problems and Mr Saunders played football after leaving the Services;

• The Applicant did not report the requisite subjective symptoms of pain until a football match some five months after the aircraft landing, and there was even then no mention of neck stiffness;

• The Applicant himself (Exhibit R3/31), wrote with regard to other whiplash injury that symptoms became evident in the 1950s, 1960s and 1970s, that is "stiff neck, pain in outer edge of left shoulder joint, numbness in the left thumb and adjoining area. Rarely used my left arm when driving a vehicle. By late 1960's early 70's pain in left shoulder joint …" Mr Saunders did not complain to medical practitioners about neck pain until the 1950s;

• Dr Newcombe, in his report 1986 stated that Mr Saunders began to suffer pain in the neck in the 1950s.

1. The Tribunal preferred the submissions of the Respondent as detailed above, finding that Mr Saunders did not suffer cervical disc prolapse at the time of the aircraft landing. He did not report pain and parasthesia radiating into his upper limbs after the incident, (as described in the definition of cervical disc prolapse in the relevant SoP), and described feeling uncomfortable and "a sort of distant hurting situation … and engine being out of tune …" , as well as flying that night and  in the days following.  He did not satisfy Factor 5 of the relevant SoP.

2. As to any permanent ligamentous instability as a result of the aircraft incident; Dr Newcombe was the only doctor who addressed the possibility that this had occurred.  He raised it in his oral evidence, and only after questioning by the Tribunal which raised significant doubts that intervertebral disc prolapse had occurred in the Tiger Moth landing incident. The Tribunal found Dr Newcombe's evidence with regard to the alleged paralysis incident which Mr Saunders claimed occurred once only, speculative and unconvincing. Any regular recurrence of episodes of pain and/or tenderness affecting the cervical spine as given in the definition in the SoP did not, as discussed above, occur until long after the incident of 1 February 1945. The Tribunal was not satisfied to the requisite standard, on the basis of Mr Saunders' reports of his reactions after the aircraft landing incident, the equivocal evidence of Dr Newcombe and the other medical evidence before it, that Mr Saunders met Factor 5 of the relevant SoP with regard to permanent ligamentous instability.

3. Therefore, while the Tribunal was satisfied that Mr Saunders has had some problems with his neck, dating to the 1950s, and suffers cervical spondylosis, it was not convinced to the requisite standard, namely to its reasonable satisfaction, that his neck problems met the requisite Factors in the SoPs.   The Tribunal was satisfied Mr Saunders first sought treatment for his cervical problems in the early 1970s when he consulted Dr Saw.  The Tribunal is not satisfied that he suffered either permanent ligamentous instability or intervertebral disc prolapse in the aircraft landing incident on 1 February 1945 as claimed. What follows is that the Tribunal cannot therefore be satisfied that Mr Saunders' cervical spondylosis has arisen in satisfaction of the relevant Factors in the relevant SoPs.

4. Accordingly, although the Tribunal acknowledges that Mr Saunders believes his cervical spondylosis occurred as a result of the Tiger Mother landing, the Tribunal was unable to find that Mr Saunders' cervical spondylosis with intervertebral disc prolapse was war-caused pursuant to section 9 of the Act.
   DECISION

5. The Administrative Appeals Tribunal affirms the decision of the Repatriation Commission dated 19 March 1998 as affirmed by the Veterans' Review Board on 4 April 2000 and decides that the Applicant's cervical spondylosis with intervertebral disc lesion was not war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.

I certify that the 183 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member and Dr P Lynch Member

Signed:         .....................................................................................
  Associate

Date/s of Hearing  15 March 2001
Written Submissions                Received 9 May 2001
Date of Decision  21 August 2001
Solicitor for the Applicant         Ms J Buss

Advocate  for the Respondent         Ms P Hook