Sharpe and Repatriation Commission

[2003] AATA 1282

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1282

ADMINISTRATIVE APPEALS TRIBUNAL      )

)              No. N2003/389

VETERANS’ APPEALS DIVISION )

Re JAMES SHARPE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr M E C Thorpe, Member

Date21 November 2003

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL      )     No.       N2003/389

)  

VETERANS’ APPEALS DIVISION )            

Re JAMES SHARPE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal              Senior Member M D Allen;
  Dr M E C Thorpe, Member

Date  21 November 2003

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:

1.    The Applicant, JAMES SHARPE, suffers from the war-caused disease of Osteoarthritis of the Left Hip and is entitled to pension for this said disease as and from 12 June 2001; and

2.This matter is remitted to the Respondent so that it might assess the rate of pension to be paid for all war-caused injuries and diseases suffered by the Applicant.

(Sgd)  M D ALLEN
  ..........................................
  Presiding Member

CATCHWORDS

VETERANS' ENTITLEMENTS – osteoarthritis of left hip – Applicant claimed that because of groin pain that occurred during recruit training, he began to limp and this continued post service – whether facts conformed to Statement of Principle – credit of Applicant not impugned – decision set aside.

Veteran's Entitlements Act 1986 – ss9(1)(b), 120(4) and (6), 120B

Repatriation Commission v Law 31 ALR 140

Repatriation Commission v Smith 15 FCR 327

REASONS FOR DECISION

21 November 2003

  Senior Member M D Allen;

  Dr M E C Thorpe, Member   

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to sub‑section 43(2A) of the Administrative Appeals Tribunal Act1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3.        The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen;
  Dr M E C Thorpe, Member

Signed:         (K. Wong)     
          ....................................................................................……………………………….

Associate

Date of Hearing  21 November 2003     
Date of Decision  21 November 2003

Representative for Applicant      Mr P Jones, Legal Aid Commission

Representative for Respondent  Mr N Bunn, Department of Veterans’ Affairs

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N 2003/389
By MR M.D. ALLEN, Senior Member
and DR M.E.C. THORPE, Member
SHARPE and REPATRIATION COMMISSION
SYDNEY, FRIDAY, 21 NOVEMBER 2003

MR ALLEN: By application made 7 March 2003 the applicant sought review of a decision by the respondent as affirmed by a Veterans Review Board disallowing his claim for localised osteroarthrosis of the left hip. The applicant had service in the Australian Army during the Second World War but did not have operational service, consequently the standard of proof applicable in this matter is that prescribed by subsection 4 of section 120 of the Veterans Entitlements Act 1986 (as amended), namely to the Tribunal's reasonable satisfaction. That term was stated by the Full court of the Federal Court in Repatriation Commission v Smith 15 FCR 327 to equate to the civil standard proof, namely proof on the balance of probabilities.

Subsection 6 of section 120 provides that neither party to this review bears any onus of proof.  Section 120B of the Veterans Entitlements Act provides that the Tribunal will not be reasonably satisfied that a particular injury or disease was war caused unless the material before the Tribunal which raises a connection between the injury or disease and the war service conforms to a so called statement of principles.

The applicable statement of principles in this matter is instrument number 82 of 2001 and that document is reproduced as document T14 in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. That instrument states, inter alia, that:

“One of the factors that must exist before it can be said on the balance of probabilities that osteoarthritis is connected with the circumstances of a person's relevant service is that for osteoarthritis of a hip, having disordered joint mechanics affecting that joint before the clinical onset of osteoarthritis in that joint.

The term "disordered joint mechanics" is defined in the said instrument as “a maldistribution of loading forces on that joint resulting from various conditions.”

SharpeJ 21.11.03 P-1

©Auscript Pty Ltd 2003

The applicant's evidence was reasonably straight forward.  He said that in January 1945 he was undergoing recruit training at Cowra.  During the course of that recruit training about the second month of the three months course he became lame.  He stated that he had a pain in his left groin which pain extended through to his hip and buttock area and made him limp.  His platoon commander noticing the limp directed him to attend at a regimental aid post and from thence the medical officer sent him to a bootmaker who put a strip of leather under the sole of his left boot.

That resulted in excruciating pain in the groin so that he removed that strip of leather himself.  He says that ever since his recruit training and experiencing the pain in the groin he has continued to experience that pain and has continued to limp.  He limped during the course of the rest of his service but managed to perform his duties.  The applicant's evidence in the sense of his credibility was not challenged at all in these proceedings.  So that the situation is that we have his unchallenged evidence given upon oath.  His evidence is supported by a document from a Mr Prestage which occurs at document T8, page 37.  That document reads inter alia:

“I wish to advise having been in the same platoon with Mr J.C. Sharpe of ‘Stirling Vale’ Merriwa in the Australian Army at 3ARTB Cowra from January to March 1945 it was during this time that Mr Sharpe became lame in his left leg/hip and limped badly.”

Now that document is simply in the form of a letter.  It's not in the form of a statutory declaration but it was not challenged in these proceedings.  For example, the maker of the document was not called for cross-examination and therefore we consider it being unchallenged we are free to act on it and as we said it supports the applicant's evidence.  In addition, although it doesn't go to the occurring of the condition, a report from the applicant's general practitioner, a Dr O'Neil which occurs at document T11, page 45 states inter alia:

“When I started treating you in 1969 in Merriwa you walked with a limp.  I can vouch for the fact that you did and continue to do so.”

There were some collateral challenges to the applicant's history.  For example, after recruit training he commenced training as a commando being very rigorous training at the Land Warfare Centre Canungra.  It was suggested that having a continual pain in his groin and consequent limp this would have been noticed during this training.  It may well be.  It may well not have been.  Suffice it to say the applicant's evidence is that he was able to get through this training in spite of the pain and limp. 

SharpeJ 21.11.03 P-2

©Auscript Pty Ltd 2003

There is also what can be described as the hoary chestnut of the applicant's discharge medical.
Certainly he has not said anything about a limp in that medical and nothing has been noted.  However, we can take note sitting here of the many cases we've had in this Tribunal that discharge medicals were quite often very superficial and you have the situation of a young man who is there, according to the documents before us, seeking a compassionate discharge from the army.  We do not regard anything in the medical as causing us to reject the applicant's sworn evidence before us today.

We agree with the respondent that no pathology has been demonstrated but then again as we read the particular SOP pathology need not be demonstrated.  Exhibit A2 in these proceedings is a report by Professor Sambrook, Professor of Rheumatology.  In that report he states at page 5 under the heading "relationship to service":

“The relationship of his left hip osteoarthritis to his service is not entirely clear.  Clearly Mr Sharpe has lived a physically active life on the land and has widespread evidence of osteoarthritis.  On the other hand if we accept the history as given by him as being a true record in regard to the onset of groin pain and limp then it is true to say it is more probable than not that but for his service the left hip pathology and indeed spine pathology would not have occurred or would not have been as severe as it is.”

Professor Sambrook then goes on to address the statements of principle and says inter alia:

“The other factor for consideration is disordered joint mechanics.  Again, if the history is to be accepted as Mr Sharpe describes he had a permanent limp but it is unclear as to what the pelvic long bone or joint pathology causing this originally was.  From the history obtained one could hypothesise that he suffered some type of hip pathology but the actual nature of that pathology remains elusive given the long history between the onset and the presentation for medical treatment.”

The applicant brings his claim under paragraph 9(1)(b) of the Veterans Entitlements Act, namely, that the injury suffered or disease contracted arose out of or was attributable to any eligible war service rendered by him. So far as the term "arose out of" is concerned we would simply refer to what was said by the Full Court of the Federal Court in Repatriation Commission v Law 31 ALR 140 at 150, namely, and we quote (omitting authorities):

SharpeJ 21.11.03 P-3

©Auscript Pty Ltd 2003

“The expressions injury arising out of and in the course of employment and injury arising out of or in the course of employment found in Workers Compensation legislation have been the subject of much judicial discussion.  The expression, injury caused by or arising out of the use of an insured motor vehicle has also been the subject of discussion.  The precise nature of the relationship denoted by the phrase depends upon the subject matter being dealt with, the context in which the expression is used and the circumstances of the particular case.

In paragraph 101(1)(b):

The words arising out of require a consequential relationship of the incapacity or death with the service out of which it is said to arise.  It is not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be immediate, direct or proximate or by saying it connotes a real, sole or dominant cause.

The Act does not say death which is caused by or results from his war service.  Phrases which might connote a proximate causal relationship; the expression, arisen out of, is satisfied if some less proximate causal relationship is established.  Of course a suggested relationship which is fanciful is not sufficient and a suggested relationship may be so tenuous as to preclude its consideration as answering the description, arising out of.” 

The court also referred to the phrase "is attributable to" and said beginning at page 151:

“It seems clear that the expressions, attributable to, in each case involves an element of causation. The cause need not be the sole or dominant cause.  It is sufficient to show attributability if the cause is one of a number of causes providing it is a contributing cause.  Under section 101(1)(b) it is sufficient to show attributability if a member's war service is a contributing cause to the incapacity or death in respect of which the claim is made.  It would only add that where the court there refers to section 101, subsection 1, it refers to the precursor of section 9, subsection 1 in the previous Act, the Repatriation Act, 1920 as opposed to the Veterans Entitlements Act.” 

SharpeJ 21.11.03 P-4

©Auscript Pty Ltd 2003

What we are therefore left with in this case is the evidence of the applicant that he developed groin pain and a limp during his recruit training which has stayed with him for the rest of his life.  It is clear from the report of Professor Sambrook that if we accept history given it is more probable than not, but for service left hip pathology would not have occurred or would not have been severe as it is.

We are therefore reasonably satisfied that the applicant's osteoarthritis of the left hip arose out of or is attributable to his service.  The decision under review is therefore set aside and this matter remitted to the respondent with the direction that the applicant’s osteoarthritis of the left hip is a war caused disease and that he is entitled to pension in respect of that incapacity as and from the 20th day of June, 2001.  The respondent is to assess the rate of pension to be paid for incapacity arising out of all war caused injuries and diseases.

SharpeJ 21.11.03 P-5

©Auscript Pty Ltd 2003