Shingles v D.F.R.D.B Authority - [2008] FMCA 260

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHINGLES v D.F.R.D.B. AUTHORITY

[2008] FMCA 260

ADMINISTRATIVE LAW – Appeal from decision of Administrative Appeals Tribunal – alleged errors of law – allegations of bias – failure to raise bias point till after Tribunal’s decision – appeal dismissed.

Vakauta v Kelly (1989) 167 CLR 568
John Fairfax Publications Pty Ltd v Kriss [2007] NSWCA 79
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220
Minister for Immigration & Citizenship v MZXPA [2008] FCA 185
Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220

Applicant:

GRAHAM JAMES SHINGLES

Respondent:

DEFENCE FORCE RETIREMENT & DEATH BENEFIT AUTHORITY

File number:

MLG 504 of 2007

Judgment of:

Burchardt FM

Hearing dates:

1 & 7 February 2008

Date of last submission:

7 February 2008

Delivered at:

Melbourne

Delivered on:

14 April 2008

REPRESENTATION

Counsel for the Applicant:

Mr White

Solicitor for the Applicant:

KCI Lawyers

Counsel for the Respondent:

Mr Dillon

Solicitor for the Respondent:

Australian Government Solicitor

ORDERS

THAT the appeal be dismissed.
THAT the Applicant pay the Respondent’s costs of and incidental to the appeal.
THAT Order 2 be stayed for fourteen (14) days for the Applicant to file and serve written submissions as to costs.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 504 of 2007

GRAHAM JAMES SHINGLES

Applicant

And

DEFENCE FORCE RETIREMENT & DEATH BENEFIT AUTHORITY

Respondent

REASONS FOR JUDGMENT

Introductory

This is an appeal from a decision of the Administrative Appeals Tribunal (“the Tribunal”) given on 2 March 2007 by which the Tribunal affirmed a decision under review. Relevantly, the Tribunal assessed Mr Shingles' inability to undertake employment at 25 per cent, this figure being within the scale for a pension at class C. The inability to work arises from Mr Shingles’ service with the Australian Army in Vietnam.
The Tribunal was constituted by a Senior Member (“the Senior Member”) and a doctor. The grounds of appeal raise a number of matters which counsel for Mr Shingles categorised under a number of sub-headings. All were said to amount to errors of law.
It should be noted that the grounds of appeal asserted in the notice of appeal are far more extensive than the four sub-headings to which counsel referred me, but it is convenient in the light of the way in which counsel for Mr Shingles conducted the case to follow the same methodology that he adopted.
The four errors of law that Mr Shingles asserts are:
a)That the Tribunal failed to take into account relevant considerations;
b)The Tribunal failed to discharge its obligation to give reasons;
c)A failure of the Tribunal to accord natural justice to Mr Shingles; and
d)Bias.
It should be noted at the outset that the submissions of the Respondent dated 24 January 2007 contain at paragraph 1 the following entirely accurate assertion:
This is a difficult case because it requires the witnesses and ultimately the Tribunal to assess the Applicant's degree of incapacity on the day after the Applicant's discharge from the army, 27 October 1971, some 36 years ago.
That difficulty self-evidently will only get greater as time goes by.
It is common cause that Mr Shingles enlisted in the armed forces on

10 February 1969
, and that he thereafter volunteered for service in Vietnam. He arrived in Saigon on 10 September 1970 and, as events transpired, left so that he arrived on 20 April 1971 in Sydney. He never thereafter returned to Vietnam.
He was discharged from service on 26 October 1971, and it is common cause that the disability in relation to his heels (commonly known as spur heels) and his post-traumatic stress disorder were present at that time.
It is the extent of those conditions taken individually and cumulatively that has occupied a very considerable number of previous determinations, both by officers of the government and by the Tribunal and indeed by this Court.
It is fair to say that the Applicant in his case has represented that his subsequent difficulties in employment have arisen out of his service in Vietnam and have constituted a disability as at the date of discharge well in excess of the 30 per cent necessary for him to move from a class C classification to the class A or class B classification that he seeks.
The Respondent's position by way of contrast has been that whatever the Applicant's present difficulties - most particularly in relation to alcohol consumption - may be, they do not exceed the 30 per cent threshold.

Error of law

Pursuant to s.44 of the Administrative Appeals Tribunal Act 1989, an appeal to this Court arises only when there is an error of law.
Error of law involves misinterpretation or misapplication of a principle of law, or the application of an inappropriate principle of law to an issue of fact (Butterworth's Australian Legal Dictionary 1997).
A mistaken or doubtful finding of fact does not constitute an error of law (per Kenny J in Minister for Immigration and Multicultural Affairs v Rajalingham (1999) 93 FCR 220 at [257]).
The Respondent submitted that, other than the bias point, the Applicant's grounds of appeal ultimately raised only matters of merits review. Although there are a number of grounds of appeal, some of which themselves contain sub-grounds, I accept the general force of this submission.

Failure to take into consideration relevant considerations

In this regard Mr Shingles criticised the Tribunal’s reasoning both as to his spur heels disability and as to his psychiatric disability.
In relation to the spur heels, the Applicant’s criticisms are set out at paragraphs 6 to 11 of his outline of argument in reply filed on 25 January 2008.
It is submitted that the Tribunal:
a)omitted to record or refer to the medical report of 10 September 1971 noting that the Applicant’s heels were swollen and tender and that he remained unfit for duty in other than open footwear i.e. sandals or thongs, etc;
b)In finding at paragraph 57 of the Tribunal’s reasons for decision that the Applicant was able to perform a series of tasks failed to pay attention to the fact that he was only able to do so wearing special footwear for his condition;
c)in finding at paragraph 58 of the Tribunal’s reasons for decision that there was no evidence that the Applicant was physically incapable of performing the job that he had at Bandiana Army base, the Tribunal failed to record that he was only able to do so wearing sand-shoes;
d)the Tribunal preferred the evidence of Doctor Satchdev to that of Doctor Conrad when their evidence was not inconsistent;
e)the Tribunal’s finding at paragraph 59 that quoted Doctor Satchdev as indicating that Mr Shingles could work as a storeman as at date of discharge failed to note that Doctor Satchdev’s report provided that Mr Shingles was restricted from wearing boots in order to carry out the duties of a store person or labourer.
In my view, none of these criticisms are properly made out. The finding of the Tribunal as to Mr Shingles’ spur heels problems (his orthopaedic disability) are contained at paragraphs 55 to 59 of the Tribunal’s decision.
The factual findings recorded at paragraphs 56 and 57 of the Tribunal’s findings are, in my view, not only clearly and comprehensively set out but they are consistent with the evidence before the Tribunal.
The same applies to the findings made at paragraph 58 about the job at Bandiana.
Furthermore, the finding of the Tribunal of an inconsistency between the report of Doctor Conrad and the report of Doctor Satchdev was open to the Tribunal on the materials. Doctor Conrad asserted a finding of twenty percent and Doctor Satchdev asserted a range of between ten and thirty percent.
Taken as a whole the finding of the Tribunal seems to me to sit comfortably with what Doctor Satchdev had to say.
The criticisms of the Tribunal’s finding on the issue of psychiatric disability, under this heading, are set out in paragraphs 12 to 18 of the Applicant’s outline of argument in reply. The criticisms advanced here are that:
a)the Tribunal made no reference to the report of Doctor Duncan on 17 April 2000 in which he qualified opinions earlier given;
b)the Tribunal failed to make any reference to the report of Doctor Dinnen in so far as he provided an assessment of between 30 and 60 percent disability;
c)the Tribunal’s finding that the extent of Mr Shingles’ PTSD at the date of discharge were mild was wrong because it failed to consider direct evidence to the contrary and provided no reasoning for the acceptance of this view over other views expressed in the medical reports;
d)the Tribunal placed no weight on the number of incidents of employment that were asserted to have occurred;
e)The Tribunal failed to refer to the report of Doctor Altman at all;
f)The Tribunal relied upon the Applicant’s good job references and the failure to refer to those which were unsuccessful.
The Tribunal dealt with the issue of the psychiatric disability at paragraph 60 to 68 of its reasons for judgment.
The Tribunal cannot be criticised, in my view, for not referring to each and every aspect of each and every of the many reports to which it was referred. The Tribunal noted at paragraph 60:
Calculating his psychiatric impairment at the time of discharge is more difficult. Various psychiatrists have attempted to estimate this degree of incapacity by reference to the history given by the Applicant now. This of course includes his now psychiatrist Dr Altman.
Taken fairly, in my view, the Tribunal’s decision shows that it did not fail to have proper regard to any of the psychiatric material before it. It was necessarily hampered by the fact that no psychiatrist had seen Mr Shingles for many years after his service in Vietnam, and the reports made were themselves in many cases many years subsequent to even the first such psychiatric history.
I do not think that the Tribunal’s treatment of the references that the Applicant had can be said to amount to an error of law. The Tribunal is entitled to look at the reports that were before it and to draw conclusions from both that and from the Applicant’s evidence as given to it. In my view, that is what it did.

Obligation to give reasons

Here we are concerned with the alleged failure of the Tribunal to give an adequate explanation as to why it was that the percentage estimates of disability made by Dr Altman and Dr Dinnen were not referred to by the Tribunal.
The Applicant has referred in written submissions to the various percentages expressed by medical practitioners.
It is submitted (paragraph 22 Applicant’s outline of argument in reply) that:
In determining an overall impairment of 25% the Tribunal, of necessity, has either disregarded the assessment of the doctors entirely and/or made an assessment that the incapacities determined by them at the very lowest end of the ranges given by them.
There are no adequate reasons for explaining this process.
Given that the quantification of disability is conceded as I understand it not to involve a cumulative assessment of the two injuries separately, and given that there is no objective scale to assist the Tribunal in making its assessment, it must necessarily be the case that the Tribunal’s conclusions would involve a calibration and necessarily ultimately somewhat subjective judgment. What the Tribunal said at paragraph 71 of its reason for decision was:
Having regard to the material before us we find that (the disability) amounted to 25%.
In my view, the decision making process is reasonably clear to follow from the Tribunal’s decision and is sufficient to justify the Tribunal’s findings.

Natural justice

Here the complaint made (P-32) was that the Tribunal found that the Appellant exaggerated his capacity to retain employment and the Tribunal denied Mr Shingles natural justice because he was not given an opportunity to be heard on that issue which affected his credibility.
The first of these matters was, in my view, a credit finding open to the Tribunal to make. The Tribunal made findings about the work history of Mr Shingles at paragraphs 26 to 35 of its reasons for decision. Those findings seem to me to be open to the Tribunal to have made. It should be noted that the Tribunal accepted (paragraph 33 of its reasons) that there were jobs that Mr Shingles could not do because of his spur heels problems.
The Tribunal found at paragraph 35 of its decision that Mr Shingles had exaggerated the effects of his disabilities on his employment. It was put that the issue of exaggeration was not put to the Applicant or to any of the medical witnesses.
In my view, the Tribunal’s conclusions were ones it was entitled to reach following consideration of the materials. It is not necessary for a Tribunal to put each and every proposition to a witness as the evidence proceeds, not least because the Tribunal may only arrive at its conclusions once the evidence is concluded.

Bias

The bias point can only be understood by examination of some of the transcript of the proceeding from which this appeal arises.
This transcript shows a scepticism on the Senior Member’s part, as to Mr Shingles’ experiences in Vietnam. I refer here to the issues shown on P-39 (CB 452) about whether or not Mr Shingles had seen casualties at the helicopter pad, and the number of persons he had seen shoot themselves in the foot.
Transcript on P-40 (CB 453) shows scepticism about whether or not Mr Shingles had ever been involved in any clashes with Vietnamese forces.
At P-73 (CB 501) the Senior Member had some further exchanges with Mr White, counsel for Mr Shingles. At P-74 (CB 502) the following exchange is recorded:
THE SENIOR MEMBER: Well, you can take some of Dr Duncan’s early reports, he had him as a driver in Vietnam. He had him with 7 and 8RAR.
MR WHITE: There are all sorts of things that scattered throughout these notes, Senior Member. He had him as a menswear shop assistant. I mean these are little anomalies. Whether or not they ultimately go to credit is a different question. In my submission they don’t.
THE SENIOR MEMBER: I mean look at his own statement, paragraph 17:
Many patrols went out each night and many soldiers were brought in injured as a result of booby traps and clashes with the Vietnamese.
Now, if he’s talking about Vung Tau he’s lying through his teeth. The only danger to any Australian soldier in Vung Tau was booze and bar girls.
MR WHITE: None of that has ever been put to the applicant.
THE SENIOR MEMBER: But going through the reports it’s clear that you know it’s a very confused history.
MR WHITE: First of all it hasn’t been challenged. Secondly, the Tribunal is prohibited from relying on its own knowledge.
THE SENIOR MEMBER: Lucky for your client.
MR WHITE: Well, it would place us in an incredibly difficult position even though the Tribunal has now at the end of the case said what his view is about Vung Tau.
THE SENIOR MEMBER: Well, let me say this much. I’m certainly very conscious of the laws of evidence and that Tribunals particularly should not place their own opinions or experience in the place of evidence and as you’ve pointed out there has been no challenge. What I am saying is though that I have certain views as to over-emphasis in the affidavit and what we term or have termed are very confusing histories taken by various medical practitioners, so that it would not – and I want to hear you on this – I can certainly for myself take into account that some of the histories are of themselves inconsistent and any evidence must be taken into account that the applicant for many reasons, PTSD plus his alcoholism, etcetera he’s a poor historian.
MR WHITE: Well, it may be an additional factor as well if the Tribunal please and that is the questions asked might also play a part in differences – I don’t say inconsistencies – between one report and another. So in my submission it’s not just the applicant being a poor historian for whatever reason but what was asked I think changed over the years as well. It’s clear from Dr Dinnen once the PTSD was acknowledged as ---
THE SENIOR MEMBER: What he’s asked is one thing but a history is another thing.
MR WHITE: Suffice to say that if there were challenges to that then no doubt the applicant would have given evidence about things like that but it hasn’t done.
THE SENIOR MEMBER: But we’re in the position, this Tribunal, of saying there are confusing histories. We know he has a history of alcohol abuse. Therefore we’re entitled to draw the inference that because of either psychiatric illness or alcohol abuse which has affected his neurone capacity he has become a poor historian. (emphasis added).
That passage, to which I shall return, can only be understood in the light of the submissions made by Mr Dillon for the Respondent at

P-79 (CB 507):
Now, in our submission, the submission on the facts does deal with the inconsistencies in the history. We did not challenge Mr Shingles’ credibility as such, but we have recognised that the histories given to the doctors have been very flawed and inconsistent in many ways, and in significant ways that cause us to submit that some of the assessments shouldn't be accepted by the Tribunal (emphasis added).
Further on, on the same page, Mr Dillon said at line 21:
MR DILLON: In our submission we have set out at paragraph 32 what we believe to be a reasonable history that should be the Tribunal's starting point in considering the doctors’ assessments, including the evidence that Mr Shingles gave yesterday which indicated that really he had been engaged only a couple of times with the enemy, and the major engagements seemed to be once beyond the wire where they were fired on but the enemy quickly disappeared into the scrub. He said he had seen ---
THE SENIOR MEMBER: It would be interesting to have the unit war diary on that.
MR DILLON: Yes, it would. It would be very interesting. He had seen soldiers wounded in contacts in the Vung Tau perimeter. Under your questioning, he maintained that that was the case. He said he had been in Nui Dat when Private Fereday shot the sergeants but said he hadn't witnessed it. His evidence was that he had been disarmed after threatening his company sergeant major, not as a result of the psychiatric assessment. The evidence of Corporal Lindgren was put to Mr Shingles, and that is at T63 1 through 5. Mr Shingles had said that Corporal Lindgren had commanded nearly all the patrols he had been on and Corporal Lindgren remembered only two occasions of patrolling in sandshoes. Mr Shingles’ evidence was that it was more than twice.
At the joint request of the parties, I have listened to the recording of the proceeding. I put it to Mr Dillon that, inter alia, the earlier reference on P-74 (CB 502):
Now, if he is talking about Vung Tau he is lying through his teeth -
was expressed with a rising and very strong emphasis. Mr Dillon accepted that this was the case.
It is clear from the materials that the Senior Member served in Vietnam, and in all probability was familiar with both Vung Tau and Nui Dat.
The Senior Member's observation, "The only danger to any Australian soldier in Vung Tau was booze and bargirls", shows a very definite state of mind that I can only reasonably infer was based on personal experience.
Taken as a whole, the transcript shows that the Senior Member was from an early stage inherently sceptical of Mr Shingles’ evidence about his experiences both in Vietnam and as to his capacity to work in Australia. One might say that on one view this was a scepticism well open to him on the materials, which certainly showed a measure of inconsistency, although another view might well be that such inconsistencies were scarcely surprising given the nature of the experiences described and the time over which the various medical reports had taken place.

I think that the Senior Member had a bias about Mr Shingles’ evidence, based upon his own experiences in Vietnam.
Taken as a whole, the extracts in the transcript lead me, notwithstanding the Senior Member's disavowal by his reference to the rules of evidence (CB 502), to the conclusion that the Senior Member was not able to bring an unprejudiced mind to the resolution of the matter before him. The use of the phrase “lucky for your client” admits no other conclusion. Whilst allegations of bias must be firmly established (Minister for Immigration & Citizenship v MZXPA [2008] FCA 185 (“MZXPA”) at [26], in this case I think that it is.
In making this finding, I should make it clear that I have no doubt whatever that the Senior Member approached this matter without being aware that he had this predisposition. While I have found that the Senior Member was biased, I have no doubt that he was not aware of it. The Senior Member served in Vietnam, which service necessarily impels respect, and I regret that I should be myself compelled to make this finding. It seems clear, however, that the intensity of his recollection and - one might reasonably infer - his experience overbore his better judgment and objectivity.
The test in respect of bias has been stated in very many cases, including Vakauta v Kelly (1989) 167 CLR 568 (“Vakauta”), where Brennan, Deane and Gaudron JJ said at [573] – [574]):
“An experienced lawyer would appreciate the ability of a trial judge to ensure that preconceived views do not cause the actual decision to be tainted by prejudgment or bias. The likelihood that the lay observer would not lies at the heart of the requirement of the appearance as well as the reality of impartial justice. To borrow and adapt words used by Mahoney J.A. in his dissenting judgment in the Court of Appeal, the comments in the judgment were such as to cause "reasonable apprehension" on the part of a lay observer that the judgment itself was, "in the end", affected by bias.”
In this case, for the reasons I have described, I have concluded that the judgment of the Senior Member was affected by bias in the manner I have described.
That, however, it is not the end of the matter. Counsel for the Respondent objected that Mr White had not sought that the Tribunal disqualify itself, and that accordingly on the authorities - including Vakauta - the bias point could not now be pressed.
The joint judgment of Brennan, Deane and Gaudron JJ in Vakauta at [572] did state inter alia:
“A party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object.”
The judgment of Dawson J in Vakauta at [577]-[579] made remarks to a similar effect, but it is interesting to note that his Honour's observations included at [579]:
“In my view, where a party in civil litigation, being aware of the circumstances giving rise to a right to object, allows the case to continue for a sufficient time to show that he does not presently intend to exercise that right, he may be held to have waived it.”
Toohey J in Vakauta adopted the position of the majority (see [587]).
Nonetheless, it is clear that not every failure to object instantly leads inexorably to a finding of waiver. Because waiver of its nature involves an intentional relinquishment of a right or interest, courts have on occasion excused a failure to take immediate objection. In John Fairfax Publications Pty Ltd v Kriss (2007) NSWCA 79, the New South Wales Court of Appeal stated at [26]:
“Mr Blackburn made no actual election to waive any disqualification, and an election cannot be imputed in this case because the delay until the next morning was not unreasonable in the circumstances. The appellant is a frequent litigant in the Supreme Court and Mr Blackburn was entitled, if not bound, to seek express instructions before making the application. He was also entitled to wait until the official transcript could be obtained and considered and this could not occur under normal circumstances until after 6 pm that evening.
The transcript would enable the representative of the lay client to evaluate the evidence and any advice before giving instructions. The transcript would also avoid any unseemly debate between counsel and the Judge as to what was actually said. By waiting until the next morning the appellant’s counsel did not elect to waive the objection.”
In my respectful view, that decision reflects the practical exigencies that devolve upon advocates in a situation, namely challenge to the Tribunal's constitution, that is always forensically difficult.
In the circumstances of this case, the passages that in my opinion might have led to a challenge, most particularly the references to Vung Tau and the like at P-74 (CB 502), took place right at the end of Mr White's submissions. Mr White, having said that the Tribunal was prohibited from relying on its own knowledge and receiving the response, "Lucky for your client," from the Senior Member stated:
Well, it would place us in an incredibly difficult position, even though the Tribunal has now at the end of the case said what his view is about Vung Tau.
Faced as he was with the swift march of events and this unheralded and express scepticism (albeit that, looked at historically, the earlier transcript indicates to an extent the same conclusion), one cannot say that Mr White was in a position on the run to expressly formulate a position that abandoned in an intentional way any challenge on the grounds of bias.
Nonetheless, while I should make it clear that in my opinion, no criticism can properly be made of the way in Mr White sought to respond, on the run, to the remarks of the Tribunal about Vung Tau, the authority in Vakauta is binding on me and is clear in its terms. It says that a party cannot stand by and wait for a decision before pressing its objection.
Furthermore, a claim of bias should be made as soon as the relevant facts are known (MZXPA at [28] quoting Vakauta at [577] to [579] per Dawson J. As Sundberg J pointed out in MZXPA:
A party who is legally represented in not generally allowed to raise bias for the first time in later court proceedings unless unaware of it until after the decision was made.
Here, although it would have been unreasonable to require Mr White in the circumstances of the case to have pressed his bias objection on the spot, it was open to his instructing solicitor to write to the Tribunal following the conclusion of the proceeding seeking to agitate both this point and the natural justice point interconnected with it.
This was not done. Rather, Mr Shingles elected to wait until the conclusion of the proceedings and the judgment adverse to him before pressing the point.
I confess that I have found this aspect of this proceeding troublesome. The extracts from the transcripts to which I referred do lead me to a firm conclusion that the senior member was biased because of his earlier experiences in Vietnam when he came to evaluate Mr Shingles’ evidence. Nonetheless, no objection was taken to his participating in the process of the production of the decision and as I see it I am compelled by Vakauta to disallow the challenge on this ground.
Counsel for Mr Shingles submitted that the bias was repeated in the Tribunal’s judgment and therefore the exception identified in Vakauta applied.
He referred to paragraphs 17, 21 and 25 of the Tribunal’s reasons in this regard.
In paragraph 17 of its reasons for decision (CB 524) the Tribunal observed that it regarded Mr Shingles’ accounts of his service in Vietnam as being exaggerated. Nonetheless, although there was a reference to a possible further supply of information by an organisation such as Writeway, the fact is that in paragraph 17 the Tribunal accepted evidence given by Mr Shingles that he was unable to wear army boots and had to wear sand shoes. It accepted that this caused further problems because he performed duties outside the camp perimeter.
At paragraph 21 the Tribunal observed that the base at Vung Tau was considered secure enough for the Applicant to be without a personal weapon, and this was not, in my view, a controversial matter in the light of the evidence given.
It was put that the use of the phrase “for a period of six months he did not work but contented himself with going to the hotel each day and drinking until he had run out of money”, in paragraph 25 of the Tribunal’s reason for decision (CB 525) similarly repeated and evidenced the bias manifest during the hearing.
Once again I think that this was a finding open to the Tribunal properly to make on the evidence. While it does imply an evidence of distaste for what Mr Shingles did, this is not inconsistent with its view of his evidence as exaggerated. That latter finding was, in my view, also open to the Tribunal to make.
Taken as a whole the fair reading of the Tribunal’s decision does not, in my view, extend in the way that the decision did in Vakauta as to enable the bias point to be said to have been repeated and the exception identified in Vakauta to be enlivened.

Additional Issues

The grounds of appeal did raise the question of Wednesbury unreasonableness, which counsel pointed out at P-43 was “really looking at the percentages where on their face, in circumstances were some of them are not dealt with, it’s entirely unreasonable that another percentage would be arrived at.” Counsel went on to say, however, “if we lose on the arguments we have put already then no doubt we would lose of the Wednesbury unreasonableness.”
In the ultimate, the Wednesbury unreasonableness ground was not really pressed as a separate issue. It is not necessary for me to deal with it. I accept counsel’s concession that my earlier remarks effectively deal also with the Wednesbury point. I do not think the Tribunal’s conclusion as to the percentage of impairment is open to attack on this ground.
Although my reasons thus far dispose of the issues in a determinative way against the Applicant, I will express views about the two remaining matters raised by the parties.

The percentage of impairment

It should be noted that the ultimate function of the Tribunal was to place Mr Shingles at a percentage of disability that runs in a continuum from nought to 100 per cent.
That was a difficult task involving a global assessment of two medical conditions, namely spurs to the ankles and post-traumatic stress disorder, which are radically different in their character. It was common cause before the Tribunal that these were not to be dealt with in a cumulative way. This was a forensic task that might well tax a medical practitioner, let alone a judge sitting alone.
Even if I had otherwise been minded to uphold the appeal, I would not regard myself as being sufficiently well qualified, nor would I regard the medical evidence as being sufficiently clear, as to enable me properly to make this sort of assessment.

Should the matter be remitted, limited only to the evidence already given?

Counsel for Mr Shingles strongly submitted that if the matter were to be returned to a differently constituted Tribunal, the evidence should be limited to that already in. I would not be prepared to accede to that request. It may be that further evidence might, notwithstanding the enormous lapse of time since 1971, somehow be available; and it would not be fair to either party to preclude all possibility of such material being submitted to the Tribunal. It would of course remain for the Tribunal to decide whether any additional evidence be admitted or not.

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 14 April 2008